Evidence of traditional laws and customs

The ALRC’s 1986 report on traditional law and customs

19.2 In 1986, the ALRC released a report, The Recognition of Aboriginal Customary Laws (ALRC 31). The report presented a wide-ranging set of recommendations on the recognition of Aboriginal customary laws in relation to, among other things: marriage, children and family property; criminal law and sentencing; local justice mechanisms for Aboriginal communities; and traditional hunting, fishing and gathering rights.

19.3 In ALRC 31, consideration was given to ways in which the laws of evidence and procedure adversely impact on the proof of Aboriginal ‘customary law’.^[4] The term ‘customary law’ was not defined in ALRC 31. Instead it was noted that narrow legislative definitions ‘misrepresent the reality’:

Exactly how Aboriginal customary laws are to be defined will depend on the form of recognition adopted … But it is clear that definitional questions should not be allowed to obscure the basic issues of remedies and recognition. It will usually be sufficient to identify Aboriginal customary laws in general terms, where these are recognised for particular purposes.^[5]

19.4 In this Report, the Commissions have adopted the term ‘traditional laws and customs’. This term is consistent with the language used in the Native Title Act 1993 (Cth). Section 223 of the Native Title Act refers to ‘traditional laws acknowledged, and the traditional customs observed’.^[6] The rules constituting traditional laws and customs relate to ‘rights and interests’ (for instance, in relation to land) and therefore have ‘normative content’.^[7] However, while native title proceedings are an important area in which this category of evidence is relevant, the Commissions emphasise that it is not intended automatically to incorporate, within the rubric of the uniform Evidence Acts, the judicial interpretation of ‘traditional laws and customs’ which has developed in the Native Title Act context.^[8]

19.5 It was observed in ALRC 31 that the rules of evidence give rise to two main difficulties in proving traditional laws and customs: first, the distinction between matters of fact and matters of opinion (the ‘opinion rule’); and, secondly, the insistence on first-hand evidence based on personal knowledge of matters of fact (the ‘hearsay rule’).^[9]

19.6 After considering the application of these rules of evidence, the ALRC concluded:

It is not satisfactory that the evidence of traditionally oriented Aborigines about their customary laws and traditions should be inadmissible in law unless it can be forced into one of the limited exceptions to the hearsay and opinion evidence rules, or that it should be admitted in practice only by concession of the court or counsel … Both overseas and Australian experience (in the courts and in land claims) demonstrates the importance of Aboriginal testimony about their customary laws. Such testimony has its difficulties, but so does anthropological evidence. The best evidence seems to be a combination of both, with expert evidence providing a framework within which the Aboriginal evidence can be understood and assessed.^[10]

19.7 Despite the problems highlighted in ALRC 31, the ALRC did not favour excluding the operation of the laws of evidence, as this would have the disadvantage of

leaving arguments about admissibility unstructured, and depriving the courts of the assistance which satisfactory rules might give. Only if the existing rules, however modified to assist with proof of Aboriginal customary laws, can be shown to be wholly unsuitable for present purposes, would their wholesale exclusion be appropriate.^[11]

19.8 The ALRC concluded that deficiencies and uncertainties in the application of the rules of evidence to traditional laws and customs should be remedied, recommending that legislation be enacted to provide that

evidence given by a person as to the existence or content of Aboriginal customary laws or traditions is not inadmissible merely because it is hearsay or opinion evidence, if the person giving the evidence:

• has special knowledge or experience of the customary laws of the community in relation to that matter; or

• would be likely to have such knowledge or experience if such laws existed.^[12]

19.9 This recommendation is referred to in this chapter as ‘the ALRC 31 recommendation’.

19.10 The ALRC stated that such a provision would not make undesirable inroads into the laws of evidence and noted that other discretions to exclude evidence would be retained. Any more extensive provision, excluding the laws of evidence entirely in relation to the proof of Aboriginal customary laws or traditions, was considered unnecessary.^[13]

Interaction of hearsay and opinion rules with the ATSI oral tradition

19.11 The hearsay and opinion rules have significant implications for the reception of evidence from ATSI witnesses. Peter Gray has written:

Perhaps the greatest clash between Aboriginal and Anglo-Australian systems of knowledge is in relation to the form knowledge takes. Oral traditions and history are usually the basis of Aboriginal connection with land and, accordingly, are of major importance to land claims and native title applications. As well as the dreamings, genealogies, general historical stories and land use information will be transmitted orally in most Aboriginal communities. Yet the Anglo-Australian legal system is the ‘most prohibitively literate of institutions’.^[14]

19.12 Similarly, Justice Nicholson of the Federal Court has written extra-judicially:

No judge could experience [a native title] hearing without being highly conscious that the non-Aboriginal record was highly documented and orderly but that the history of the Aboriginal peoples has an alternative derivation.^[15]

19.13 The central problem—namely, the discord between the rationale underpinning the hearsay and opinion rules in the common law system and the ATSI oral tradition of knowledge—is recognised in a number of the submissions and consultations.^[16]

19.14 De Rose v South Australia^[17] (De Rose) provides an example of the evidentiary problems associated with oral histories. In De Rose, O’Loughlin J considered the admissibility of a witness statement indicating that the witness was told by a deceased Aboriginal person, when speaking of the land subject to a native title claim, that ‘this is your grandmother’s country’. O’Loughlin J held that it would not be appropriate to admit the witness statement under ss 62 and 63 of the uniform Evidence Acts^[18] as evidence of the fact that it was the grandmother’s country.^[19]

19.15 O’Loughlin J referred generally to evidentiary problems relating to the receipt into evidence of statements made by ATSI people to a witness. For example, 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.^[20] However, many ATSI people, particularly those living in remote areas, have no such written records of their birth.^[21]

Contexts in which evidence of traditional laws and customs is adduced

19.16 There are several contexts in which it is necessary to adduce evidence of ATSI traditional laws and customs. The most common currently is in proceedings under the Native Title Act; however, this is not the only area in which this issue arises. Indeed, it is likely that it will become increasingly important in other areas of law, particularly as native title claims will ultimately expire.^[22]

19.17 Evidence of ATSI traditional laws and customs is also relevant to areas of law such as criminal law defences, sentencing, coronial matters, succession, family law, and placement of children.^[23] Other legal contexts in which the admissibility of evidence of ATSI traditional laws and customs may be important include proceedings arising under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), and similar state and territory legislation, such as the Aboriginal Heritage Act 1988 (SA).^[24]

Criminal law defences

19.18 Evidence of ATSI traditional laws and customs has been used as an element of various defences under criminal law, including consent, duress, provocation and honest claim of right.^[25] For example, in R v Judson, the defence in a sexual assault case relied on evidence showing that the conduct of the accused was consistent with the relevant traditional laws and customs, in order to prove that the complainant had consented or that the defendants held an honest belief that she had consented.^[26] In Lofty v The Queen, the Supreme Court of the Northern Territory held that it was proper to inform the jury that the conduct of the complainant constituted a grave breach of ATSI traditional laws and customs when assessing the gravity of provocation.^[27]

Sentencing

19.19 Evidence of traditional laws and customs may be taken into account when sentencing offenders.^[28] This most often occurs when an ATSI person has been (or will be) subjected to traditional punishment by his or her own community, in addition to any punishment provided by the criminal justice system.^[29] Traditional punishments may include traditional spearings, physical beatings, or banishment. Evidence on the nature and likelihood of the traditional punishment (for instance, the degree of harm likely to be caused) may be used as a mitigating factor in sentencing.^[30] Evidence about traditional laws and customs can also be used to explain a person’s state of mind at the time of the offending behaviour.^[31]

19.20 As Kearney J explained in 1996, this is appropriate because in ATSI ‘communities’, and particularly in remote ATSI settlements,

the continued unity and coherence of the [ATSI] group of which the particular accused is a member is essential, and must be recognised in the administration of criminal justice by a process of sentencing which takes due account of it, and the impact of a member’s criminal behaviour on it.^[32]

Family law and placement of children

19.21 When determining the best interests of the child, the Family Law Act 1975 (Cth) requires a court to take into account the background of a child, ‘including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders’.^[33]

19.22 The Family Law Council has referred to the outcomes of the Family Court of Australia’s Children’s Cases Program (CCP).^[34] On this basis, the Family Law Council suggested it would be desirable to consider whether courts should be given an express power to receive information relevant to the exercise of their family law jurisdiction in parenting cases involving ATSI people.

19.23 The Family Law Council recommended that the Attorney-General of Australia bring ‘the issue of admissibility of evidence relating to cultural practices’ to the attention of the ALRC in its review of the Evidence Act 1995 (Cth).^[35]

Evidence in native title proceedings

19.24 Much commentary about the interplay between the rules of evidence and the ATSI oral tradition has centred on native title proceedings. In submissions and consultations, it was recognised that native title was a particular area of concern (though not the only area of concern) regarding the admission of evidence by ATSI witnesses.^[36]

19.25 When the Mabo case was heard by the Supreme Court of Queensland,^[37] the Meriam people faced difficulty in presenting evidence of their traditional customs. In the vicinity of 300 objections were made to the evidence given by Eddie Mabo of what his grandfather had told him about the traditional laws and customs of the Meriam people, and the rights and interests he had, on the ground that this evidence was hearsay.^[38]

19.26 Subsequently, there has been much case law and commentary concerning the admission and use of such evidence in native title proceedings under the Native Title Act. Determinations under the Native Title Act require that, in order to establish rights and interests in relation to land or waters, an applicant must prove a continuing connection to the land or waters by reference to the relevant traditional laws and customs.^[39] The primary issue in establishing traditional laws and customs is whether the law or custom has, in substance, been handed down from generation to generation: that is, whether it can be shown to have its root in the tradition of the relevant ATSI group.^[40] This has been described as ‘a historical exercise’, as much as a legal one.^[41]

19.27 Some of the most important issues in native title proceedings ‘can only be resolved upon evidence which in other circumstances may be regarded as hearsay’.^[42] Findings about traditional laws and customs practised more than 150 years ago must necessarily rely on evidence other than that of the direct personal observations of witnesses. Similarly, genealogical connections to ancestors living at or prior to European settlement cannot be proved by reference to official records.^[43]

19.28 In Yarmirr v Northern Territory (No.2), Olney J confirmed that ss 73(1)(d) and 74(1) of the uniform Evidence Acts relating to evidence of reputation concerning history and family relationships and of reputation concerning the existence, nature or extent of a public or general right

enable the Court to have regard both to the evidence of witnesses who have recounted details concerning relationships and traditional practices which have been passed down to them by way of oral history and to matters recorded by ethnographers and other observers.^[44]

19.29 However, these provisions may not always be sufficient to allow the admission into evidence of oral histories and accounts. Such evidence continues to be challenged as hearsay and may not readily fit within the categories of admissible hearsay in the uniform Evidence Acts. For example, there may be disputes about whether particular evidence is of ‘reputation concerning’ a ‘general right’, in the terms of s 74(1), if it is only a building block in showing the rights of a group of ATSI people in respect of certain land.

19.30 A judicial officer provided another example in a submission to this Inquiry. He suggested that an ATSI witness might say:

When I was a child my late father [X] told me that his father [Y] was an initiated man who came from somewhere in the area of [A] and had two wives, one of whom was [Z], the mother of my father. He told me that his father [Y] roamed around the following places: B, C and D.^[45]

19.31 The judicial officer noted that, while some parts of this witness’ statement may be seen to concern matters covered by s 73 (whether a person was married and family history or family relationship), it is questionable whether any part of the statement is evidence of ‘reputation concerning’ those matters. Further, the parts relating to initiation and, perhaps less clearly, where Y came from, lie outside the ambit of the section.^[46]

19.32 In Ward v Western Australia, Lee J said:

In a proceeding in which native title is in issue any rules of evidence applied to the proceeding must be cognisant of the evidentiary difficulties faced by Aboriginal people in presenting such claims for adjudication and the evidence adduced must be interpreted in the same spirit, consistent with the due exercise of the judicial power vested in the court under the Constitution …

Of particular importance in that regard is the disadvantage faced by Aboriginal people as participants in a trial system structured for, and by, a literate society when they have no written records and depend upon oral histories and accounts, often localised in nature. In such circumstances application of a rule of evidence to exclude such material unless it is evidence of general reputation may work substantial injustice …^[47]

Section 82 of the Native Title Act

19.33 Prior to the 1998 amendments to the Native Title Act, s 82 of that Act ‘explicitly acknowledged the need for different processes to cater for special needs, such as oral tradition’.^[48] The Native Title Act at that time provided that the Federal Court of Australia, in conducting native title proceedings, was ‘not bound by technicalities, legal forms or rules of evidence’.

19.34 However, in 1998, s 82 of the Native Title Act was amended to state:

Rules of evidence

(1) The Federal Court is bound by the rules of evidence, except to the extent that the Court otherwise orders.

Concerns of Aboriginal peoples and Torres Strait Islanders

(2) In conducting its proceedings, the Court may take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders, but not so as to prejudice unduly any other party to the proceedings.

19.35 Section 82 of the Native Title Act operates in conjunction with the Federal Court Rules, which state that the Court may ‘make any order it considers appropriate relating to evidentiary matters’ including an order ‘relating to the presentation of evidence about a cultural or customary subject’.^[49]

19.36 However, the Native Title Act provides no guidance on the factors which may justify an order setting aside the rules of evidence. In Daniel v Western Australia, Nicholson J held that, in adopting this statutory amendment, Parliament ‘evinced an intention that the rules of evidence should apply to native title applications except where the court orders otherwise’ and that it ‘requires some factor for the court to otherwise order’.^[50] In Lardil, Kaiadilt, Yangkaal, Gangalidda Peoples v State of Queensland, the Federal Court interpreted s 82(1) of the Native Title Act to mean that the rules of evidence would apply ‘unless there are circumstances which persuade the Court that the rules should not, or to a limited extent, apply to all of the evidence sought to be tendered or particular categories of that evidence’. ^[51]

19.37 The Native Title Act does not allow the Court to dispense generally with the rules of evidence in native title proceedings. In Harrington-Smith v Western Australia (No.8), Lindgren J noted that, for s 82 to be invoked, it is ‘not a sufficient reason that the rules of evidence render certain evidence inadmissible: the terms of s 82 reflect an acceptance by the Parliament that this will be so, and that the position, should not, as a matter of course, be relieved from’.^[52]

19.38 In De Rose v South Australia, O’Loughlin J used s 82 of the Native Title Act to allow hearsay evidence to be admitted. In doing so, O’Loughlin J highlighted the practical evidentiary issues facing native title applicants. He stated that, given that much of the evidence in native title cases is dependent on past events and the actions of earlier generations,

there is a compelling justification, in appropriate cases, to allow Aboriginal witnesses to give evidence of their beliefs that are based on what they have been told by members of the older generations who are now dead or are otherwise unable to give direct evidence.^[53]

19.39 In particular, it was held that, in relation to the admission of historical and anthropological evidence, s 82 of the Native Title Act may be used to ‘ensure that applicants are not required to meet an evidentiary burden that is, in the circumstances that are unique to every native title application, impossible to meet’.^[54] A judicial officer has stated that it should be accepted that, by amending s 82,

Parliament did not intend to make it impossible for applicants for a determination of native title to establish the existence of native title. To think otherwise would be to attribute to the Parliament a cynical attempt to have an Act which purported to provide a regime under which determination whether native title does or does not exist might be made, yet to frustrate the achievement of that purpose.^[55]

19.40 The Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation (the Yamatji Aboriginal Corporation) observed that the additional factor required to allow the rules of evidence to be dispensed with in native title proceedings ‘remains an enigma with no judicial determination of what this entails’.^[56] The Yamatji Aboriginal Corporation submitted that s 82 and its subsequent interpretation are

ambiguous and adverse to the flexible development of the courts’ own rules of evidence. For Aboriginal claimants there is uncertainty as to whether their oral tradition evidence is admissible.^[57]

Evolution of the law

19.41 The law in Australia may be moving towards greater acceptance of oral evidence of ATSI traditional laws and customs. Peter Gray observes that the decision of the Supreme Court of Canada in Delgamuukw v British Columbia^[58] and that in Ward v Western Australia^[59]

may have opened a new chapter in the attitude of common law courts to the use of indigenous oral accounts and the operation of the hearsay rule. The recognition of the intrinsic value of oral traditions, and of oral evidence of them, might even mark the beginning of the creation of a special exception to the hearsay rule, relating to evidence of land tenure systems, and entitlements under them, in oral cultures.^[60]

19.42 Gray notes that, while the provisions of the Evidence Act 1995 (Cth) are more liberal than the common law rules, they are ‘potentially restrictive of any attempt to create new exceptions’. He states that the solution may lie in a recognition of oral traditions as a category of real evidence and not hearsay at all.^[61]

19.43 A recent decision of the Federal Court is consistent with a move in this direction. In Gumana v Northern Territory of Australia, Selway J considered the hearsay restrictions in the uniform Evidence Acts.^[62] He noted that the hearsay rule in s 59 of the uniform Evidence Acts is subject to a number of exceptions:

First, where the evidence is of a fact, rather than what is said about the fact, then it is not hearsay. This is reflected in s 74 of theEvidence Act which provides that evidence can be given in relation to ‘evidence of reputation concerning the existence, nature or extent of a public or general right’. In my view evidence of a ‘custom’ or tradition including evidence of what is believed about a custom or tradition is evidence of a fact and is not hearsay. It can be treated as evidence of ‘reputation’ for this purpose. In my view there is no prohibition under theEvidence Act of the admissibility of that evidence. Evidence can be given pursuant to s 74 of theEvidence Act of the ‘reputation’ of the existence, nature and extent of Aboriginal custom by those subject to Aboriginal custom and by those who have studied it over a long period…^[63]

19.44 Selway J stated that it did not seem necessary to categorise evidence of ATSI traditional laws and customs as a special exception to the usual rules of evidence, even assuming that it were possible to do so under the Evidence Act 1995 (Cth). His Honour held that such evidence is ‘direct evidence of a fact in issue—the existence of tradition or custom and of rights pursuant to it’.^[64]

19.45 Selway J also considered it ‘doubtful’ whether evidence of ‘reputation’ can be given by an outside expert who carries out an investigation only for the purpose of giving evidence in a particular case. In such a case, the evidence may not properly be characterised as evidence of ‘reputation’, but only as evidence of what that person has been told (that is, hearsay).^[65]

Submissions and consultations

Responses to IP 28

19.46 In IP 28, questions were asked concerning the admissibility of evidence of traditional laws and customs, with a focus on native title proceedings and the operation of s 82 of the Native Title Act.^[66]

19.47 Submissions and consultations confirmed that concerns about evidence of traditional laws and customs are not limited to the context of native title proceedings.^[67] Consultations highlighted the many contexts in which evidence of traditional laws and customs is adduced.^[68]

19.48 The Yamatji Aboriginal Corporation submitted that, because the written word dominates the Anglo-Australian legal culture, the spoken word is undervalued. Further, current statutory mechanisms used to reconcile differences between the two cultures can operate in a manner that is disadvantageous to native title claimants.^[69]

19.49 However, it is also clear that practices in some jurisdictions are more flexible than the strict legal position might imply. For example, in the Northern Territory, there appears to be operating an assumption in some cases that evidence of traditional laws and customs, taken from ATSI elders or ‘lawmen’, is not considered hearsay. Rather, it is treated (to the extent that the basis of admissibility is considered) as expert opinion evidence or as ‘real’ evidence.^[70]

19.50 There was some support for the implementation of the ALRC 31 recommendation,^[71] and there were suggestions that such a recommendation would be well received by the Northern Territory legal community,^[72] which is experienced in receiving such evidence.

19.51 The President of the Human Rights and Equal Opportunity Commission (HREOC) referred to the Hindmarsh Island Bridge case, in which arguments about ‘women’s business’ arose.^[73] It was observed that, in the context of arguments about the existence and scope of this evidence, the second clause of the ALRC 31 recommendation—that is, the words ‘or would be likely to have such knowledge or experience if such laws existed’ (emphasis added)—would apply to allow the evidence to be admitted. Otherwise, the evidence would be inadmissible, except by consent, despite being central to the facts in issue.^[74]

19.52 In relation to evidence used as the factual basis of expert opinion evidence, an Aboriginal Land Council observed:

The circumstances in which Aboriginal people divulge information on which an expert’s opinion is often based should be borne in mind: the divulgence of information to known and trusted experts in an informal setting is quite different to the artificiality and pressure of a court situation. The fact that a statement made by an Aboriginal informant to an expert in the former situation is not repeated directly in direct evidence should not automatically disqualify that statement from going before the fact-finder.^[75]

19.53 This Aboriginal Land Council submitted that the court’s concern should be the reliability of the information sought to be admitted through an expert’s report, rather than the mere fact that a statement has been made out of court.^[76] In relation to the operation of the hearsay provisions of the Evidence Act 1995 (Cth) in native title proceedings, it observed that

Aboriginal societies do not relegate information passed on via oral tradition to a second class form of knowledge (as do the current provisions of the Evidence Act); what is significant is the fact of the transmission, its source and to whom it has been passed.^[77]

19.54 The Land Council considered that sufficient protection is provided by the discretionary provisions in ss 135 and 136 of the uniform Evidence Acts to address the concerns of parties regarding the appropriate weight to be given to hearsay evidence dealing with matters of ATSI traditional laws and customs.^[78]

19.55 The Yamatji Aboriginal Corporation is critical of the current operation of s 82 of the Native Title Act and proposes reform to address admissibility and to ensure proper weight is accorded to evidence of oral tradition. Specifically, the Yamatji Aboriginal Corporation proposed that the Evidence Act 1995 (Cth) be amended to provide that:

• the Native Title Act is subject to the provisions of the Evidence Act 1995 (Cth);

• the rules of evidence in native title proceedings should be approached in light of the evidentiary difficulties inherent in adjudicating ATSI claims, and courts should interpret that evidence in the same spirit;

• ATSI oral knowledge (tradition) evidence is admissible as real evidence in all native title proceedings;

• in conducting proceedings, the court is not bound by technicalities, legal forms or rules of evidence in relation to evidence given by an ATSI witness relating to oral knowledge or oral tradition; and

• the court must conduct proceedings in a manner that consistently integrates the culture and custom of ATSI groups.^[79]

19.56 Similarly, another ATSI body (a Land Council) submitted that the change to s 82 of the Native Title Act has removed recognition of the sui generis nature of native title claim proceedings and places greater emphasis on an adversarial claims process, to the disadvantage of ATSI native title claimants.^[80] This Land Council submitted that the Native Title Act should be amended to reinsert the original s 82 or a provision reflecting the provisions in the Federal Court Rules (Cth), which permit the court to ‘make any order it considers appropriate relating to evidentiary matters’.^[81]

19.57 By contrast, the State of South Australia submitted that s 82 of the Native Title Act is satisfactory in its present form and that no amendment is required.^[82] It submits that s 82 enables judges to approach the admission of hearsay evidence based on an evaluation of all the circumstances of the case and that, in cases such as De Rose, judges have been prepared to use s 82 ‘to admit evidence that might conventionally be considered hearsay’.^[83]

19.58 A judicial officer suggested that the experience of judges in native title proceedings is that, while the hearsay evidence of ATSI witnesses is often objected to, ruled inadmissible or its use is made subject to limitations:

After a time, the parties resisting the making of a determination that native title exists seem to cease objecting, and a vast body of first-, second- and third-hand hearsay comes to be admitted.^[84]

19.59 The need to make rulings on such evidence can greatly prolong native title proceedings, and in the judicial officer’s view, the effective conduct of native title proceedings is dependent on the commonsense of the lawyers who practise in this area—‘the simple fact is that a practical course must be, and is found, and in one way or another, the indigenous witnesses manage to tell their story’.^[85]

19.60 The judicial officer argued that s 82 of the Native Title Act should be amended so as to be consistent with both:

(a) the possibility of proof of native title in a reasonable and practicable way; and

(b) protection of the rights of interests opposed to recognition of native title.^[86]

Responses to DP 69

19.61 The Commissions made the following proposal in DP 69:

The uniform Evidence Acts should be amended to provide an exception to the hearsay and opinion evidence rules for evidence relevant to Aboriginal or Torres Strait Islander traditional laws and customs.^[87]

19.62 There is widespread support for this proposal. Several organisations support this proposal on the basis that it addresses the problems already identified in relation to the admission of ATSI evidence.^[88] The Northern Land Council favours the proposal, indicating that it would allay their concerns about the operation of s 82 of the Native Title Act.^[89]

19.63 The Australian Government Attorney-General’s Department (AGD) states that there ‘may be merit’ in the proposal subject to the qualification that ‘the exception should not unduly prejudice another party to the proceedings’.^[90]

19.64 A judicial officer of the Federal Court agrees with the proposal, subject to the reservation of the discretion under s 135.^[91] On the other hand, another Federal Court judge argues that proof of ATSI traditional laws and customs is so distinct that it requires its own form of regulation, separate from the uniform Evidence Acts.^[92] Another Federal Court judge states that it is important to retain flexibility in dealing with evidence of ATSI traditional laws and customs.^[93]

The Commissions’ view

Recommendation to amend uniform Evidence Acts

19.65 It was stated in ALRC 31 that a provision dealing with proof of traditional laws and customs would have advantages, apart from the basic one of rendering relevant ATSI evidence admissible, in that it would:

• deal with the problem of ‘experiential’ evidence given about ATSI traditional laws and customs by persons without formal academic qualifications but with long-standing contact and experience with ATSI communities; and

• avoid any objection to evidence based on the ‘ultimate issue’ rule, the ‘common knowledge’ rule, as well as the problem of opinions based in part on hearsay.^[94]

19.66 These problems were addressed to some extent by the introduction of the uniform Evidence Acts. The question is whether sufficient reason still exists—in view of the relevant provisions of the uniform Evidence Acts and the case law which has developed since the ALRC 31 recommendation was made—to recommend that the uniform Evidence Acts be amended to provide that evidence of ATSI traditional laws and customs is not inadmissible simply by reason of it being hearsay or opinion evidence.

19.67 The Commissions believe that without statutory amendment, the laws of evidence will continue to present undesirable barriers to the admission and use of evidence of traditional laws and customs. Submissions and consultations indicate that the admission of such evidence is often contested, and divergent judicial approaches are developing to resolve these disputes.^[95]

19.68 Statutory amendment of the hearsay and opinion rules, in respect of evidence of traditional laws and customs, would also clarify the law. As noted above, the present case law discloses some inconsistency in the way in which the hearsay rule is applied to evidence of traditional laws and customs. It is true that, often, improvised solutions are reached when one counsel stops objecting to such evidence on hearsay grounds.^[96] However, that approach is neither durable nor adequate. First, it places too much reliance on the attitudes taken by particular individuals (judges and counsel) involved in the case. Secondly, as has been pointed out by Ketley and Ozich, courts may take a liberal approach in admitting evidence, but then accord it little or no weight.^[97]

19.69 The Commissions therefore recommend amendments to provide exceptions to the hearsay and opinion evidence rules for evidence relevant to ATSI traditional laws and customs (see Recommendations 19–1 and 19–2 below). These recommendations are reflected in the draft provisions set out in Appendix 1 (new ss 73A and 78A).

19.70 Moreover, as is discussed below, the Commissions recommend including the elements of a definition of ‘traditional laws and customs’ for the purposes of the uniform Evidence Acts (see Recommendation 19–3).

Exception to the hearsay rule

19.71 Following ALRC 31, provisions were introduced in the uniform Evidence Acts which obviated some of the hearsay obstructions to admission of evidence of ATSI traditional laws and customs. In particular, the hearsay exceptions in ss 73 and 74 allow some evidence of traditional laws and customs to be admitted, despite the hearsay rule in s 59. Also of assistance is s 60 which lifts the hearsay rule for evidence relevant for a non-hearsay purpose.

19.72 However, as Chief Justice Black of the Federal Court stated extra-judicially in 2002, despite the more flexible hearsay provisions of the uniform Evidence Acts, there remains

a serious question as to whether it is appropriate for the legal system to treat evidence of this nature as prima facie inadmissible and to only admit it by way of an exception to an exclusionary rule when such evidence is in precisely the form by which law and custom are maintained under indigenous traditions.^[98]

19.73 Moreover, while courts sometimes apply the hearsay rule flexibly with respect to evidence of traditional laws and customs, it has been observed that ‘the ghost of hearsay—the preference of the written over the spoken word—still impacts negatively on the assessment of Aboriginal oral historical evidence’.^[99] In the Commissions’ view, these problems should be addressed by amending the uniform Evidence Acts. This is consistent with the conclusions of a background paper prepared for the Law Reform Commission of Western Australia, which suggested the need for a ‘general statutory relaxation of the complex common law requirements for proof of Aboriginal customary law’.^[100] It is also consistent with the preponderance of views expressed in consultations and submissions on this issue.

19.74 Amending the uniform Evidence Acts to provide an exception to the hearsay rule for evidence relevant to ATSI traditional laws and customs would make the rules of evidence more responsive to the ATSI oral tradition. Currently, a large proportion of evidence of ATSI traditional laws and customs could be objected to on hearsay grounds. The amendment proposed by the Commissions would shift the focus from whether there is a technical breach of the hearsay rule, to whether the particular evidence is reliable.^[101] The amendment would be broad enough, for instance, to cover the kind of evidence referred to at [19.30] above.

19.75 The Commissions recommend that the hearsay rule be amended in accordance with Recommendation 19–1 below.

Exception to the opinion rule

19.76 As with the problems relating to hearsay, a number of the provisions in the uniform Evidence Acts deal with problems identified in ALRC 31 in relation to evidence of ATSI traditional laws and customs being caught by the opinion rule. Particularly useful in this regard have been s 79, which allows specialised knowledge to be based on a person’s training, study or experience, and s 80, which abolishes the ultimate issue and common knowledge rules.

19.77 However, the Commissions believe that some relaxation of the opinion rule is necessary to permit a member of an ATSI group to give opinion evidence about the laws and customs of that group, without the ATSI member 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. The Commissions therefore recommend a statutory amendment that would provide for an exception to the opinion rule for evidence of an opinion expressed by a member of an ATSI group about the existence or non-existence, or the content, of traditional laws and customs of that group.^[102]

19.78 In other words, the recommended amendment would differentiate between, on the one hand, members of an ATSI group who are competent to give evidence on the traditional laws and customs of that ATSI group by virtue of their membership of, and involvement with, that ATSI group; and, on the other hand, people who are not members of the ATSI group in question and therefore whose competence to give such evidence must be dependent on their having the requisite ‘specialised knowledge based on [their] training, study or experience’ (within the meaning of s 79). ATSI witnesses who fall within the new provision would still give evidence subject to the safeguards provided by s 55 (relevance) and the discretionary and mandatory exclusions in ss 135–137.

19.79 Thus, the new provision recommended by the Commissions would not cover a person who is not a member of a particular ATSI group but who nevertheless has specialised knowledge of the traditional laws and customs of the ATSI group. An obvious example of a person fitting that description would be an anthropologist who has studied the ATSI group in question. In this regard, Recommendation 19–1, if adopted, would not modify the status quo in respect of this category of witness. That is, such a witness could still give evidence about the relevant traditional laws and customs provided that he or she satisfied s 79 of the uniform Evidence Acts.^[103] In the Commissions’ view, it is important to maintain this requirement so as to ensure that witnesses who are not members of a particular ATSI group nevertheless have an appropriate level of expertise on which their opinion about the traditional laws and customs of the group is based.^[104]

19.80 There is one obvious concern: Recommendation 19–2, if adopted, may provide a means for circumventing the opinion rule for a witness (X), who is a member of an ATSI group, but (for whatever reason) has had little or no contact with that group and thus could not rationally base his or her opinion on his or her contact with that group. The answer to this concern is that X would still have to satisfy the relevance requirement in s 55. That is, if X’s opinion evidence is not based on X’s experience, dealings or connection with the ATSI group, it is to difficult to imagine how X’s evidence could ‘rationally affect … the assessment of the probability of a fact in issue’, namely the existence, non-existence or content of the ATSI group’s traditional laws and customs.^[105]

19.81 One further matter considered by the Commissions is the fact that this recommendation only relates to members of an ATSI group. It is prudent to consider, therefore, whether the proposed amendment to the uniform Evidence Acts is inconsistent with anti-discrimination legislation. The Commissions believe that the proposed amendment would clearly not be inconsistent with the relevant legislation. In particular, the proposed amendment does not appear to constitute unlawful racial discrimination within the meaning of the Racial Discrimination Act 1975 (Cth) because the provision does not have

the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.^[106] (emphasis added)

19.82 The critical words are those emphasised above. That is, it could not reasonably be maintained that the proposed amendment would have the purpose or effect of ‘nullifying or impairing’ any right or freedom of ATSI people. Instead, as outlined above, to the extent that the proposed amendment impacts on the rights and freedoms of ATSI people, its purpose and effect is to recognise and make provision for the enjoyment of those rights and freedoms. Further, even if there is a perceived inconsistency between the proposed amendment to the uniform Evidence Act and s 9 (or s 10^[107]) of the Racial Discrimination Act, it is likely that the proposed amendment would constitute a ‘special measure’ within s 8(1) of the Racial Discrimination Act, thereby avoiding any inconsistency between the two Acts.^[108]

19.83 The Commissions hold the same view in relation to the relevant state and territory anti-discrimination legislation.^[109]

Suggestion to consider amendment of Native Title Act

19.84 The recommendation to include provisions specific to evidence of ATSI traditional laws and customs in the uniform Evidence Acts is consistent with the Commissions’ policy that the Acts should be of general application to all criminal and civil proceedings.^[110] As discussed above, issues concerning the admission of evidence of traditional laws and customs arise in many different types of proceedings—from native title, family and other civil proceedings, through to criminal prosecutions.

19.85 The Commissions believe that, if adopted, Recommendations 19–1, 19–2 and 19–3 will assist greatly in solving the problems identified, including in the area of native title. However, certain evidentiary problems are particular to native title proceedings and these may not be fully addressed by the Commissions’ recommendation. That is, Recommendation 19–1 lifts the hearsay rule only for evidence of traditional laws and customs and not, for example, for evidence about family relationships that is relevant to showing a continuing connection with land.

19.86 In this context, the Commissions consider that there are strong arguments that s 82 of the Native Title Act should also be amended. Submissions and consultations dealing with s 82 and its relationship with the Evidence Act 1995 (Cth),^[111] and the Commissions’ own research, lead to the conclusion that s 82 of the Native Title Act is not operating effectively and should be reviewed. The provision does not provide sufficient guidance or certainty on the admissibility of evidence in native title proceedings.

19.87 Therefore, the Commissions suggest that consideration be given to amending s 82 of the Native Title Act. However, the Commissions consider that a recommendation to amend the Native Title Act, albeit only with respect to its evidentiary provisions, would fall outside their terms of reference and so make no recommendation in this regard.