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Speech: Evidence (Aboriginal Traditional Laws and Customs) Amendment Bill

The Hon. T.A. FRANKS: I rise on behalf of the Greens, as the spokesperson for Aboriginal affairs and reconciliation, to support this bill. As noted by the Attorney, in 1986 the Australian Law Reform Commission released the Recognition of Aboriginal Customary Laws report. The report presented a wideranging set of recommendations to provide recognition of Aboriginal customary laws.

Specifically under this report, the commission, along with the New South Wales and Victorian law reform commissions, assessed whether the admissibility of evidence 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.

The commissions found two main difficulties in proving traditional law and customs: firstly, the distinction between matters of fact and opinion, known as the opinion rule; and, secondly, the insistence on firsthand evidence based on personal knowledge of matters of fact, known as the hearsay rule. In the application of these rules, the commissions noted:

The Australian experience in the courts and in land claims demonstrates the importance of Aboriginal testimony about their customary laws. Such testimony has its difficulties...

The commissions concluded that deficiencies and uncertainties in the application of the rules of evidence to traditional laws and customs should be remedied. The recommendations included that evidence given by a person regarding the existence or content of Aboriginal customary laws is not inadmissible merely because it is hearsay or opinion evidence if the person has special knowledge or experience of the customary laws of the community in relation to the matter and would likely have such knowledge or experience if such laws existed.

Evidence of Aboriginal and Torres Strait Islander traditional laws and customs is not limited to land claims but also to areas of law, including criminal law, sentencing, coronial matters, succession, family law and placement of children. Peter Gray, previously the Aboriginal Land Rights Commissioner and Deputy President of the National Native Title Tribunal, noted:

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.

And yet our laws fail to recognise these traditions when giving evidence. The case of De Rose v State of South Australia provides an example of evidentiary problems associated with oral histories. In this case, Justice O'Loughlin found that, under the ordinary rules of evidence, it would not usually be possible to prove the place of birth of older generations through oral evidence; however, many Aboriginal and Torres Strait Islander people, particularly those living in remote communities, have no written records of their birth.

While courts sometimes apply the hearsay rule flexibly with respect to evidence of traditional laws and customs, the preference of the written over the spoken word still negatively impacts the assessment of Aboriginal oral historical evidence. This bill is an important recognition of First Nations laws, customs and culture and the recognising that the best placed persons to give such evidence are First Nations people themselves. The Greens are happy to support this bill and look forward to further legislative reform which helps empower First Nations communities and promotes self-determination


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