Breadth of evidence to which the exception should apply

19.88 In DP 69, the question was asked whether the amendment in Proposal 17–1 should apply to a broader category of evidence such as evidence based on ‘oral knowledge’ or ‘oral tradition’ and, if so, how such a term should be defined.^[112]

19.89 This question arose out of concern that the term ‘traditional laws and customs’ might be overly restrictive. For instance, in the native title context, there was a concern expressed in DP 69 that ‘traditional’ has been interpreted to mean the normative rules of ATSI societies existing before the assertion of sovereignty by the British Crown.^[113] Similarly, there was a concern that the kind of evidence referred to at [19.30] above may not be sufficiently direct evidence of traditional law or customs to fit within the amended provision.^[114]

19.90 Essentially, therefore, there are two questions:

(1) Is ‘traditional laws and customs’ the appropriate term to use in the uniform Evidence Acts?

(2) Should the category of evidence covered by the recommended amendment be broadened to include, for instance, ‘oral knowledge’ or ‘oral tradition’?

Submissions and consultations

19.91 Responses to Question 17–1 were varied. Taken as a whole, the submissions and consultations disclose a preference for adopting the term ‘traditional laws and customs’ in the uniform Evidence Acts, provided that this term is defined broadly enough to include the types of material most relevant for the purpose.

19.92 The Australian Government Attorney General’s Department (AGD) ‘favour[s] the use of broader legislative terminology to allow for the use and recognition of more contemporary Indigenous knowledge’. The AGD prefers the term ‘oral knowledge’ to ‘oral traditions’, in that the former is ‘certainly a more apt term for describing the information that is retained and transmitted in Indigenous communities’.^[115]

19.93 The Law Society of New South Wales submits that it is important that the proposed exception to the hearsay and opinion rule be ‘broad enough to cover the kinds of evidence based on Aboriginal and Torres Strait Islander oral knowledge’. However, the Law Society expresses ‘no preference as to any particular term’, instead seeing the solution as requiring the adoption of ‘an appropriate broad-based definition’ of traditional laws and customs (or whatever alternative phrasing is ultimately used in the uniform Evidence Acts).^[116]

19.94 The Cape York Land Council favours using the term ‘traditional laws and customs’, stating that it is broader and therefore preferable to the term ‘customary laws’.^[117] The Council takes a similar position to the Law Society of New South Wales, stressing that it is crucial that whatever term is adopted in the uniform Evidence Acts, it must be defined broadly. The Council urges that this definition include evidence of ‘beliefs’ of the relevant ATSI group.^[118]

19.95 The Northern Land Council also urges that the term ‘traditional laws and customs’ be used in the uniform Evidence Acts, as the term has tended to be interpreted broadly in other contexts. The Northern Land Council further states that it is not necessary to distinguish between ‘oral knowledge’ and ‘oral tradition’ because the two tend to be related.^[119] On the other hand, Justice French does not favour the terms ‘oral knowledge’ and ‘oral tradition’ because they would be likely to generate substantial difficulties of definition, both in themselves and in their basis relationship.^[120]

19.96 Some express qualified support for the adoption of the term ‘traditional laws and customs’ in the Acts. Colin McDonald QC endorses the use of this wording in the uniform Evidence Acts. He cautions that it should be made clear that judicial interpretation of the Native Title Act should not automatically be adopted as the appropriate construction for the uniform Evidence Acts.^[121] The Office of the Solicitor-General for the Northern Territory^[122] stresses that it is important not to allow the construction of ‘traditional laws and customs’ to elide with ‘tradition’ as the latter term was construed in the Yorta Yorta^[123]case.

19.97 Colin McDonald QC also emphasises that ‘community’ is a problematic and ‘artificial’ descriptor in relation to ATSI people.^[124] The Office of the Solicitor-General for the Northern Territory expresses a similar concern.^[125] McDonald refers to a judgment of Muirhead J, in which his Honour said:

Examination of dictionary definitions of ‘community’ is not rewarding, eg ‘the people of a district as a whole’, ‘a body of people organized into a political, municipal, or social unity’ (Oxford Dictionary). In today’s society we find many groups ordinarily called communities living in towns or districts, eg the Greek community, the Vietnamese community, the Aboriginal community. Thus in determining the community whose wishes and needs require consideration, the [Liquor] Commission [of the Northern Territory] must embrace all groups. Generally individual group needs and wishes will be diverse and in conflict.^[126]

19.98 For this reason, McDonald argues that the term ATSI ‘group’, in preference to ATSI ‘community’, should be used in the Acts.^[127]

19.99 However, a representative of the Far East Gippsland Indigenous Community implies that the uniform Evidence Acts are irreconcilable with ATSI traditional laws and customs:

Fitting indigenous laws and customs into hearsay and opinion exceptions will create more problems than it will solve. Recommending a broader category of evidence based on ‘oral knowledge or tradition’ also fails to do justice to the full range of Indigenous problems when confronted by evidence rules.^[128]

No alternative solution was proposed.

The Commissions’ view

19.100 The Commissions believe that ‘traditional laws and customs’ is the most appropriate term to adopt in the uniform Evidence Acts. This view seems uncontroversial in light of the consultations and submissions on this issue. The Commissions are concerned to ensure that the wording adopted in the Acts covers the full range of matters within the scope of this concept.^[129]

19.101 The most effective way to address this concern is to define the term in the uniform Evidence Acts, enumerating a non-exhaustive list of matters that fall within the ambit of ‘traditional laws and customs’. The Commissions believe that matters which the Acts should articulate explicitly as being within this ambit are evidence relating to the ‘customary laws, traditions, customs, observances, practices, knowledge and beliefs’ of an ATSI group. Subject to one exception, these are the same matters as were proposed in the draft statutory definition in DP 69.^[130] The difference is that the definition here recommended also includes within the ambit of ‘traditional laws and customs’ the ‘knowledge’ of members of an ATSI group. This alteration has been made to take into account the widespread view that this is an important component of ATSI traditional laws and customs, in contrast with the Anglo-Australian legal system.^[131]

19.102 The Commissions acknowledge that the rules of evidence have not been sufficiently responsive to some of the inherent differences in ATSI traditional laws and customs, as against the Anglo-Australian law. In the context of the Federal Court’s native title jurisdiction, Dr Ann Genovese has written:

[D]espite the court in many cases being cognisant of the particular difficulties and evidentiary burdens experienced by indigenous parties, prevailing legal norms about the nature of acceptable sources and histories, and direction to prefer one over the other, continues to hamper indigenous claims.^[132]

19.103 The Commissions believe that the broad definition of ‘traditional laws and customs’ in Recommendation 19–3 will go some way to addressing this concern. By also incorporating the ‘observances, practices, knowledge and beliefs’ of an ATSI group, the uniform Evidence Acts will be better able to receive more diverse evidence which can be used to prove the existence and content of particular traditional laws or customs.

19.104 Finally, it should be noted that a suggestion was made in DP 69 that the proposed amendment ought arguably to apply to other cultures represented in the Australian community that have primarily an oral tradition—for example, Polynesian, Melanesian and Micronesian cultures.^[133] The view adopted by the Commissions in DP 69 was that ATSI people constitute a special category because they are unable, under Australian municipal law, to enjoy certain interests (for instance, under native title) before first proving traditional laws and customs.

19.105 In the absence of dissenting opinions emerging from the consultations and submissions, the Commissions continue to hold the view that it is unnecessary at this time to extend the application of the proposed amendment to other cultures which have a primarily oral tradition. Therefore, the Commissions recommend that the uniform Evidence Acts be amended in accordance with Recommendation 19–3 below.