Home | Databases | WorldLII | Search | Feedback Australian Indigenous Law Reporter

Santow, Edward --- "Reforming the Uniform Evidence Acts in Respect of Traditional Laws and Customs" [2006] AUIndigLawRpr 11; (2006) 10(1) Australian Indigenous Law Reporter 53

REFORMING THE UNIFORM EVIDENCE ACTS IN RESPECT OF TRADITIONAL LAWS AND CUSTOMS

Edward Santow^[*]

Introduction

The Australian Law Reform Commission (ALRC), New South Wales Law Reform Commission (NSWLRC) and the Victorian Law Reform Commission (VLRC) – collectively referred to as the Commissions – have recently completed a joint review of the uniform Evidence Acts. The final report, parts of which are extracted below, deals with a number of issues relevant to Aboriginal and Torres Strait Islander persons.[1]

The part of the Final Report dealing with matters relevant to Aboriginal and Torres Strait Islander persons in greatest detail is Chapter 19.[2] This chapter covers the traditional laws and customs of Aboriginal and Torres Strait Islander groups (‘traditional laws and customs’). The Commissions recommend that the uniform Evidence Acts be amended to include a provision dealing specifically with the admissibility of evidence of traditional laws and customs. The question whether it is necessary to amend the Acts to provide a privilege with respect to evidence that, if disclosed, would render an Aboriginal or Torres Strait Islander witness liable to punishment under traditional laws and customs, is also discussed. However, no recommendation for amendment is made.

Background to the Inquiry

The Inquiry had two primary objectives: to identify and address any defects in the uniform Evidence Acts; and to maintain and further the harmonisation of the laws of evidence throughout Australia. During the course of the Inquiry, two community consultation documents were released – an Issues Paper (IP 28) in December 2004 and a Discussion Paper (DP 69) in July 2005.

Numerous consultations were held in every state and territory, and 130 written submissions were received from a wide range of individuals and organisations. In particular, the Commissions consulted widely among Aboriginal and Torres Strait Islander groups, travelling outside of the major capital cities in order to canvas a broad spectrum of views. The Final Report was tabled in the Commonwealth and Victorian parliaments, and released in NSW, on 8 February 2006.

Aboriginal and Torres Strait Islander Traditional Laws and Customs

Admissibility of Evidence of Traditional Laws and Customs

The question asked by the Commissions was whether the uniform Evidence Acts should be amended to include a provision dealing specifically with the admissibility of evidence of traditional laws and customs. In particular, the Commissions assessed whether the admissibility requirements should be relaxed to make it easier for Aboriginal and Torres Strait Islander witnesses to give evidence about their own traditional laws and customs without falling foul of the hearsay or opinion rules.

The Commissions acknowledge that the hearsay and opinion rules have significant – and usually deleterious – effects on the reception of evidence from Aboriginal and Torres Strait Islander witnesses. Briefly, these rules operate as follows:

• The general hearsay rule states: ‘Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation.’[3]
• The opinion rule – which, like the hearsay rule, is subject to a number of important exceptions – states: ‘Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.’[4]

The central problem is that there is a discord between the rationale underpinning the hearsay and opinion rules in the common law system and the oral tradition of knowledge possessed by Aboriginal and Torres Strait Islander groups. This causes difficulties for Aboriginal and Torres Strait Islander witnesses in adducing evidence. De Rose v South Australia[5] provides an example of the evidentiary problems associated with oral histories. In this case, O’Loughlin J observed that, under the ordinary rules of evidence, it would not usually be possible to prove the place of birth of older generations by means only of oral evidence.[6] However, many Aboriginal and Torres Strait Islander people, particularly those living in remote areas, have no such written records of their birth.[7]

There are several contexts in which it is necessary to adduce evidence of traditional laws and customs. The most common currently is in proceedings under the Native Title Act. However, such evidence is also relevant to other areas such as criminal law defences, sentencing, coronial matters, succession, family law, and placement of children.

On the issue of hearsay, the Commissions conclude that, while courts sometimes apply the hearsay rule flexibly with respect to evidence of traditional laws and customs, ‘the ghost of hearsay—the preference of the written over the spoken word—still impacts negatively on the assessment of Aboriginal oral historical evidence’.[8] The Commissions therefore recommend that a new exception to the hearsay rule be enacted for evidence relevant to traditional laws and customs.[9]

In relation to the opinion rule, the Commissions urge some relaxation of the opinion rule so as to permit a member of an Aboriginal or Torres Strait Islander group to give opinion evidence about the laws and customs of that group, without this person first having to establish that he or she has ‘specialised knowledge based on [his or her] training, study or experience’ within the meaning of s 79 of the uniform Evidence Acts. The Commissions thus recommend an amendment that would provide for an exception to the opinion rule for evidence of an opinion expressed by a member of an Aboriginal or Torres Strait Islander group about the existence or non-existence, or the content, of the traditional laws and customs of that group.[10]

One related question was, ‘What is meant by the term ‘traditional laws and customs’?’ The Commissions’ particular concern was to ensure that this was not interpreted too restrictively. The Commissions recommend, therefore, that ‘traditional laws and customs’ should be defined to include the ‘customary laws, traditions, customs, observances, practices, knowledge and beliefs’ of an Aboriginal or Torres Strait Islander group. Subject to one exception, these are the same matters as were proposed in the draft statutory definition in the Commissions’ Discussion Paper. The difference is that the definition recommended in the Final Report also includes within the ambit of ‘traditional laws and customs’ the ‘knowledge’ of members of an Aboriginal or Torres Strait Islander group. This alteration has been made to take into account the widespread view that this is an important component of traditional laws and customs, in contrast with the Anglo-Australian legal system.

The Commissions consulted widely on these issues and received a large number of submissions. The overwhelming majority supported these proposals.

A New Form of Privilege?

The second major issue was whether the uniform Evidence Acts should be amended to allow courts to excuse an Aboriginal or Torres Strait Islander witness from answering a question which tends to incriminate the witness under his or her traditional laws and customs and, if so, on what basis and subject to what criteria. Essentially, this question boiled down to whether there should be a new form of privilege.

Submissions and consultations, taken as a whole, did not favour the establishment of such a privilege. The Commissions agree that there is no need to grant an additional, specific power to the courts (in the form of a privilege) to excuse an Aboriginal or Torres Strait Islander witness from answering a question which may incriminate him or her under his or her traditional laws and customs. The Commissions accept the evidence gleaned from consultations and submissions that the courts currently deal adequately with the issue. Judicial officers possess the power under each court’s inherent jurisdiction to obviate the risk of Aboriginal or Torres Strait Islander witnesses incriminating themselves under traditional law or custom.[11] Moreover, it appears that judicial officers are in fact exercising that power.

Furthermore, the methods available to judicial officers – such as closing the court to men in respect of material which, for reasons of traditional law or custom, should only be seen by women (or vice versa); or modifying the mode of questioning – are adaptable to the exigencies of the particular situation. In contrast, privilege is a blunt instrument which operates to preclude the admission of evidence which, if appropriate safeguards are engaged to protect an Aboriginal or Torres Strait Islander witness from this form of self-incrimination, ought rightly to be admitted because it is probative and reliable.[12] For these reasons, the Commissions do not recommend the creation of a new privilege.

Conclusion

The Final Report contains a number of suggestions for reform of the way courts should receive evidence from Aboriginal and Torres Strait Islander witnesses which is relevant to their traditional laws and customs. These traditional laws and customs are, largely, oral. The disjuncture between this oral form of knowledge and the Anglo-Australian legal tradition which favours evidence having a written basis has long disadvantaged Aboriginal and Torres Strait Islander witnesses. The reforms recommended by the Commissions are designed to alleviate some of this disadvantage by permitting more flexibility in the admission of evidence from Aboriginal and Torres Strait Islander witnesses.

The Commissions’ recommendations are popular: consultations conducted and submissions received over the course of the Inquiry disclosed strong support for the Commissions’ approach. If the recommendations are adopted, relevant and reliable evidence relating to traditional laws and customs will no longer be excluded. This will remedy a significant defect in Australian evidence law and it will allow the law to respond better to the oral traditions of Aboriginal and Torres Strait Islander groups.

* Edward Santow BA LLB (Hons) (Syd) LLM (Hons) (Cantab) is a legal officer at the Australian Law Reform Commission (ALRC).

[1] Australian Law Reform Commission, New South Wales Law Reform Commission, Victorian Law Reform Commission, Uniform Evidence Law: Final Report, ALRC 102, NSWLRC 112, VLRC Final Report (2006). Hereafter, this will be referred to as the Final Report.

[2] Other parts of the Final Report also cover relevant matters. For instance, the Commissions recognise the need for more flexible rules of evidence to allow, where appropriate, an Aboriginal or Torres Strait Islander witness to give evidence in narrative form: Australian Law Reform Commission, New South Wales Law Reform Commission, Victorian Law Reform Commission, Uniform Evidence Law: Final Report, ALRC 102, NSWLRC 112, VLRC Final Report (2006), [5.14]–[5.17] and Rec 5.1.

[3] Uniform Evidence Acts s 59(1). This general rule is subject to a number of statutory exceptions.

[4] Uniform Evidence Acts s 76(1).

[5] De Rose v South Australia [2002] FCA 1342.

[6] De Rose v South Australia [2002] FCA 1342, [264].

[7] De Rose v South Australia [2002] FCA 1342, [265]. O’Loughlin J noted that s 73 of the Uniform Evidence Acts addresses some, but not all, of these problems by providing that the hearsay rule does not apply to evidence of reputation concerning marriage; cohabitation; a person’s age; or family history or a family relationship. See also Yarmirr v Northern Territory (No 2) (1998) 82 FCR 533.

[8] H Ketley and C Ozich, ‘“Snapshots of Adventitious Content”: The Assessment of Oral and Historical Evidence in Native Title Claims’ in C Choo and S Holbach (eds), History and Native Title (2003) 83, 85.

[9] See Rec 19–1.

[10] See Rec 19–2.

[11] See, eg, Federal Court Rules (Cth) O 78 r 4(1), which provides that ‘the Court may give the directions and make the orders it considers appropriate to take account of the cultural or customary concerns of a party to the proceeding or another person’.

[12] See, generally (ie, not in the specific context of evidence given by Aboriginal and Torres Strait Islander witnesses), J Heydon, Cross on Evidence (7th ed, 2004), [25005], [25040].