Evidence (Aboriginal Traditional Laws and Customs) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 1 June 2023.)

The Hon. J.K. SZAKACS: I move:

That the time allotted for all remaining stages of the bill be one hour.

The house divided on the motion:

Ayes 21

Noes 13

Majority 8

AYES

NOES

PAIRS

Motion thus carried.

The Hon. S.E. CLOSE (Port Adelaide—Deputy Premier, Minister for Industry, Innovation and Science, Minister for Climate, Environment and Water, Minister for Workforce and Population Strategy) (16:44): I move:

That this bill be now read a second time.

In 1986, the Australian Law Reform Commission released Report 31, Recognition of Aboriginal Customary Laws, which made recommendations about recognition of Aboriginal customary laws, about a wide range of issues, including marriage, property, criminal law and traditional hunting, fishing and gathering rights.

The report also considered the ways the laws of evidence and procedure adversely affected the proof of Aboriginal customary law. It observed that the rules of evidence gave rise to two main difficulties in this area: the distinction between the ability to give evidence about matters of fact and opinion, the opinion rule, and the requirement for the firsthand evidence based on personal knowledge, the hearsay rule.

The Australian Law Reform Commission reconsidered this aspect of the Recognition of Aboriginal Customary Laws report nearly 20 years later during its examination of the operation of the commonwealth Evidence Act. This examination was undertaken in conjunction with the New South Wales Law Reform Commission and the Victorian Law Reform Commission.

Australian Law Reform Commission Report 102 on Uniform Evidence Law was published in February 2006. It noted the central problem in this area was the discord between the rationale underpinning the hearsay and opinion rules in the common law system and the Aboriginal and Torres Strait Islander oral tradition of knowledge and observed that while law in Australia had been moving towards greater acceptance of oral evidence of Aboriginal and Torres Strait Islander traditional laws and customs, the laws of evidence continued to present undesirable barriers to the admission and use of evidence of traditional laws and customs.

Australian Law Reform Commission Report 102 made several recommendations for reform of the uniform Evidence Acts in operation in other jurisdictions, including specific recommendations on the uniform Evidence Acts that they be amended to provide an exception to the hearsay rule of evidence relevant to Aboriginal or Torres Strait Islander traditional laws and customs and an exception to the opinion evidence 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 content of the traditional laws and customs of the group.

The commonwealth Evidence Amendment Act 2008 substantially implemented the recommendations of the ALRC Report 102, including these two recommendations, which found expression in sections 72 and 78A of the commonwealth Evidence Act, which commenced on 1 January 2009. These provisions now operate in all the uniform Evidence Act jurisdictions: the commonwealth, New South Wales, Victoria, Tasmania, the ACT and the Northern Territory.

However, as a non-uniform Evidence Act jurisdiction, these provisions were not adopted in South Australia. In July 2022, the Law Society of South Australia wrote to the Attorney-General to ask him to consider amending the South Australian Evidence Act 1929 to enact provisions in similar terms to sections 72 and 78A of the commonwealth Evidence Act. The Aboriginal Legal Rights Movement also raised this issue with him.

Having considered their request, the work of the Australian Law Reform Commission to which I have already referred and the South Australian law, it is clear that it is time for South Australia to amend the Evidence Act 1929 to create a statutory exception to the hearsay and opinion rules of evidence to allow evidence of Aboriginal traditional laws and customs to be given by Aboriginal people.

As has already been recognised in the uniform Evidence Act jurisdictions, it is not appropriate for the laws of this state to continue to treat evidence given by an Aboriginal person of Aboriginal traditional laws and customs as being prima facie inadmissible because it is based on what they have been orally told by older generations, when this is the very form by which traditional law and custom is maintained.

Similarly, restricting Aboriginal people from being able to give opinion evidence about the laws and customs of an Aboriginal group, unless they can satisfy the requirement of being an expert by establishing that they have specialised knowledge based on training, study or experience, is not appropriate. The bill addresses these concerns.

As a non-uniform Evidence Act jurisdiction, the drafting of the exceptions does not precisely mirror the provisions of the uniform Evidence Acts. The South Australian Evidence Act differs in structure, style and language to the uniform Evidence Acts. Accordingly, the bill has been drafted in a manner that is appropriately adapted to the South Australian context. However, it still clearly provides that, if an Aboriginal person gives evidence relating to the existence or non-existence or the content of traditional laws and customs of an Aboriginal group, evidence that would ordinarily be inadmissible under either the common law hearsay rule or the common law opinion rule will be admissible.

It is important to remind members that admissibility is not the same as proof; that is, evidence given under the new exceptions will continue to be weighted by the court in the usual way. For example, the evidence may still be tested by the opposing party via cross-examination or repudiated by calling alternative evidence. The court will still need to consider issues of reliability and veracity. This means that the ordinary adversarial processes and safeguards continue to apply, notwithstanding the removal of the barrier to admissibility. This ensures that the process remains fair for all parties to the litigation.

In addition to the two exceptions, the bill provides for the court to make orders relating to the reception and protection of evidence about Aboriginal traditional laws and customs in a culturally sensitive manner. This is not something that has been included in the uniform Evidence Acts, but is something that has received support during consultation on the bill.

The bill includes a broad discretion for courts to make orders or other arrangements about how it may receive or deal with evidence relating to Aboriginal traditional laws and customs. This might include orders to facilitate the reception of the evidence in a culturally appropriate manner, such as permitting more than one person to give evidence at the same time, providing for evidence to be given by song and dance, or restricting who is permitted to be in the courtroom at the time the evidence is given, such as only permitting people of a particular gender to be present. It also provides for the court to make orders to protect the evidence given, if necessary, for example by restricting access to and publication of it.

Although it may be argued that the existing suite of powers available to the court already permits it to make such orders, the bill makes this clear. It also ensures that the court and parties to litigation give due weight and consideration to issues of cultural sensitivity about evidence of Aboriginal traditional laws and customs under the new exceptions.

Aboriginal people are best placed to give evidence about their culture, the oldest living culture on earth. This bill recognises that truth. I commend the bill to the chamber and seek leave to insert the explanation of clauses without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

Part 2—Amendment of Evidence Act 1929

3—Insertion of Part 3 Division 5

This clause inserts a new Division into Part 3 as follows:

Division 5—Evidence relating to Aboriginal traditional laws and customs

34ZA—Evidence relating to Aboriginal traditional laws and customs

The proposed section sets out a number of provisions that will apply when an Aboriginal person gives evidence relating to the existence, or non-existence, or the content, of traditional laws and customs of an Aboriginal group, namely, that:

evidence that would otherwise be inadmissible under the hearsay rule at common law is admissible as evidence of the fact stated;

evidence that would otherwise be inadmissible under the opinion rule at common law is admissible to prove the existence of the fact about the existence of which the opinion was expressed;

the court may make orders or other arrangements that the court thinks fit (including, but not limited to, making orders or arrangements relating to the giving, receiving or publication of evidence) having regard to Aboriginal traditional law and custom, but not so as to prejudice unduly any other party to the relevant proceedings.

Mr TEAGUE (Heysen) (16:52): I note the restatement just now by the Deputy Premier of the contribution of the Attorney in another place. I indicate that I am the lead speaker for the opposition, and I indicate that the opposition has a rolled-up amendment to move in committee. The government has indicated that it is not, at least as presently advised, supporting that amendment, but I will just speak to what is going on in the bill and by comparison to the uniform Evidence Act.

It is right for a start to reflect on the Australian Law Reform Commission that has preceded this and time flies in a way, but I just make particular reference to the contribution of the then Attorney-General, Robert McClelland, in his contribution to the debate in the federal parliament on 28 May 2008, setting out the work that had led to wideranging reforms to the Evidence Act 1995, the commonwealth act, and including among them changes to the opinion and hearsay rules that were the subject of the uniform Evidence Act.

I just note, in particular, in terms of the Attorney-General's contribution in 2008, the following, in so far as it relates to the subject matter here:

The bill also provides new exceptions to the hearsay and opinion rules for evidence/opinion given 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 the group.

He goes on:

The oral tradition of Aboriginal and Torres Strait Islander traditional laws and customs does not fit well with the existing hearsay and opinion rules. Yet evidence of these matters is relevant in a variety of ways such as native title, family law, criminal law defences and sentencing. These amendments will make that evidence easier to provide and more appropriately reflects how knowledge of traditional laws and customs is recorded.

Then we see expressed in the Evidence Act the exceptions to hearsay and the opinion rule, as it is described in the uniform Evidence Act. I will deal firstly with the hearsay point. The uniform Evidence Act provides at section 72 that, under the heading—Exception: Aboriginal and Torres Strait Islander traditional laws and customs, the hearsay rule does not apply to evidence of a representation about the existence or non-existence or the content of the traditional laws and customs of an Aboriginal or Torres Strait Islander group. That is the provision. Pause there.

I indicate that the uniform Evidence Act does not limit the source of that evidence to being an Aboriginal person but rather is applying itself to a representation coming from wherever it might come about the existence or non-existence or the content of traditional laws and customs in an Aboriginal or Torres Strait Islander group.

I hear the Deputy Premier in terms of the overall view that such evidence is best coming from Aboriginal persons. There are examples that might be cited that give way to the application of the uniform Evidence Act in that universal way, not limiting it to being evidence given by an Aboriginal person about the existence of those things. It might be that there is somebody who is not Aboriginal but they have lived in community and on lands and they happen to be the only source of that oral evidence. It might be argued that such a person might qualify as an expert in the ordinary way.

But that would not always be the case. They might be a mechanic or a teacher and they might have heard matters that are no longer available to be given in evidence by an Aboriginal person and so the provision in the uniform Evidence Act has work to do in terms of not limiting the source of that evidence to being an Aboriginal person. That is section 72 of the uniform Evidence Act and it finds expression in the third part of the amendment that is on the file.

The bill that we have before us—and peppered through the debate, including in the other place, have been references to the fact that of course South Australia is not a uniform Evidence Act jurisdiction. We have the common law and we are different and so on. That does not mean that logic does not apply or the force of the effect of provisions does not apply. There is no reason, in my view, why the amendment for the purposes of the South Australian act cannot be or should not be in terms that permit of that evidence being admitted and enjoying exemption from the hearsay rule that would otherwise apply. To the extent that there is an explanation, I have not heard it.

The second point is of perhaps even more immediate and relevant concern in terms of the practical effect and is more directly responsive to the point that the Deputy Premier makes about Aboriginal people being the best source of opinion evidence in relation to the existence and customs of an Aboriginal group.

The uniform Evidence Act, as a result of those amendments that Robert McClelland outlined and that were so celebrated universally in the federal parliament at that time—it is a single word but it makes all the difference—provides in section 78A, and I will cite the provision as a whole for an exception to the opinion rule:

78A Exception: Aboriginal and Torres Strait Islander traditional laws and customs

The opinion rule does not apply to 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 the group.

That is, the uniform Evidence Act requires that in order to enjoy the exception, the relevant evidence about the existence of the group, and the content of the traditional laws and customs of the group, needs to be about the group of which the Aboriginal person is a member.

In contrast, the bill that is before us, the relevant provision, rather than using the definite article deliberately uses the indefinite article, with the effect that the evidence that will be deemed admissible will be in line with the uniform Evidence Act provision in every other way, except in the use of the definite article, with the result that the Aboriginal person is the one eligible to give the evidence and that person, in line with the provision, will be able to give evidence about each of those matters in the same form, I think—I think it is described in the same way—relating to the existence or non-existence, or the content, of traditional laws and customs of an Aboriginal group.

So you are very clearly contemplating—and I have tested this with the Attorney and the Attorney's staff, and so it is not inadvertent—the circumstances in which an Aboriginal person gives evidence about all of those matters in relation to any Aboriginal group.

It might be straightforward to say in response, 'Alright, if an Aboriginal person is wanting to give evidence of that kind about a group about which they do not know anything of any particular usefulness to the court, then the court will accord little if any weight to that evidence.' But it is not a good answer in principle to have a situation in which the court is required by statute to admit evidence which is, in those circumstances, quite considerably removed from the core purpose of the uniform Evidence Act amendment.

I go back to those remarks of the Attorney-General in 2008, Robert McClelland, where clearly in the second reading speech he observes, as the uniform Evidence Act then subsequently provides, that the exception to the hearsay and opinion rules for evidence given 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 is applicable to the group.

I hope that is not too terribly repetitive for the house. I am satisfied that that is a conscious matter of drafting. I am not persuaded that that is somehow the necessary result of South Australia being a blend of common law and statute in terms of its evidence rules. In fact, I am pretty confident it is not, and there is no reason why the provision cannot be couched in terms that are consistent with the uniform Evidence Act. In both respects, I highlight in particular the point about the evidence that is provided by an Aboriginal person about the group.

Perhaps for completeness, it might rise as high as to say that there is a principle that the evidence is best coming from an Aboriginal person. There may be no member of an immediately neighbouring group, and so the provision is therefore to achieve both the purpose of limiting the source of the evidence to an Aboriginal person and, really, for practical purposes, to apply to the existence of some closely connected group, either geographically or some other way that I cannot think of, and so therefore it is leaving all options open. But that is not what the uniform Evidence Act provides, and there is no need for the departure, in my view.

So I just unpack those particular elements and indicate that the amendments to address those matters are filed. There will be an opportunity for the government to put on the record reasons for opposition to that in the course of the committee.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 and 2 passed.

Clause 3.

Mr TEAGUE: I move:

Amendment No 1 [Teague–1]—

Page 2, line 13 to page 3, line 6 [Clause 3, inserted section 34ZA]—Delete the section and substitute:

34ZA—Evidence relating to Aboriginal traditional laws and customs

(1) This section applies to evidence given relating to the existence, or non-existence, or the content, of the traditional laws and customs of an Aboriginal group.

(2) If a member of an Aboriginal or Torres Strait Islander group gives evidence of a kind to which this section applies in respect of the group—

(a) any evidence that would otherwise be inadmissible under the hearsay rule at common law is admissible as evidence of the fact stated; and

(b) any opinion evidence that would otherwise be inadmissible under the opinion rule at common law is admissible to prove the existence of the fact about the existence of which the opinion was expressed.

(3) If any person gives evidence of a kind to which this section applies, any evidence that would otherwise be inadmissible under the hearsay rule at common law is admissible as evidence of the fact stated.

I want to recognise in particular the contribution of the Law Society in respect of consideration of both the process of reform more broadly and the particular provision and a suggested amendment. The Law Society has drawn attention—in particular by the letter of its then president, James Marsh, to the Attorney-General dated 15 February 2023—to the divergence from the commonwealth provisions.

I note also in this regard the debate that occurred in the Legislative Council; I note for the committee's record that that took place a bit over a year ago, in May and June of last year. The upshot of that, insofar as it related to the amendment and the drawing of attention to the divergence from the commonwealth provision, was a welcome indication from the Attorney-General to take up the matter with me between the houses. I think I have adverted, in the course of the second reading contribution, to an appreciation of the capacity to communicate these matters to the Attorney and his office, and I am satisfied that, as I say, the changes that are the subject of the existing clause 3 are not inadvertent. That work has been done.

The amendment in the form that I have moved it will achieve two things that are then applying South Australian law consistently with the uniform Evidence Act. Apart from the point about consistency with the uniform Evidence Act—that has been touted as one of the reasons to advance the legislation here, so I claim a minor tick for that—the reasons for moving this way would apply regardless of the attraction of them being consistent with the uniform Evidence Act, insofar as we are applying particular exceptions so as to ensure that the court has the benefit of relevant evidence.

In one respect, the amendment is providing for the possibility of a non-Aboriginal person to give evidence in certain circumstances, avoiding the hearsay rule. Secondly, and perhaps with all the more force in line with the way that the government has couched the objective, it would ensure that the evidence of an Aboriginal person about the existence of a group and the customs and other relevant matters applicable to the group were in fact about that person's own group. That is really revolving around the deliberate substitution of the definite article for the indefinite article.

It is an amendment, therefore, that in my view is good according to principle but also has the attraction of being in line with those much-vaunted reforms that were applied by the federal parliament 16 or so years ago.

The Hon. S.E. CLOSE: This amendment proposes to repeal the entirety of proposed section 34ZA and substitute a different version. The government opposes the amendment and I will explain why.

There are two main differences in the version proposed by the opposition. The opposition's version makes specific provision to allow non-Aboriginal people to give evidence about the existence or non-existence, or content, of traditional laws and customs of an Aboriginal group and for that evidence to be admitted as evidence of the facts stated, notwithstanding that the evidence they propose to give is hearsay in nature. Secondly, it removes proposed section 34ZA(c), which makes specific provision for the court to make orders or arrangements about the giving, receiving or publication of evidence, having regard to Aboriginal traditional laws and customs.

As to the first point, the hearsay rule is based on the inherent unreliability of hearsay evidence as a class. That is why, as a general principle at law, hearsay evidence is inadmissible. The exception to this principle proposed by the government abrogates the general prohibition only to the extent necessary, recognising that Aboriginal people may be able to more reliably give evidence about traditional laws and customs, including those made known to them via oral tradition than the general population at large. We consider the government's bill has the balance right.

As to the second point, I repeat what was stated in the second reading speech, that is, that although it could be argued the existing suite of powers available to the court already permit it to make such orders, the bill puts this beyond doubt. Not only that, it serves the purpose of ensuring the court and the parties to litigation give due weight and consideration to issues of cultural sensitivity when considering issues of reception of evidence of Aboriginal traditional laws and customs.

The rationale of the opposition in opposing the provision that would ensure that the court can make orders to facilitate the reception of evidence in a culturally appropriate manner and to make orders for the protection of such evidence if necessary is unclear. Inclusion of a provision to achieve this was requested and supported by several stakeholders during consultation on the proposal. It was not opposed by anyone. For these reasons the government opposes the amendment.

Mr TEAGUE: I thank the Deputy Premier for that contribution. It did not address at all the question of the use of the definite article as opposed to the indefinite article—we will call it the definite article point. It is really about the evidence of an Aboriginal person about the existence of a group of which that Aboriginal person is a member. I do not know if the Deputy Premier wishes to address that or has overlooked it. That is really at the nub of what is being proposed

The subsection (c) point is really a red herring to a large extent; the court has powers to do that. But to the extent that that is a source of controversy, then there is no issue from the opposition about (c), and we can certainly work on it. So subsection (c) is not an issue. Indeed, it is such a red herring I did not even address it. I think the court has that capacity anyway.

The point about the possibility for a non-Aboriginal person to give evidence—alright, there can be a range of views about that: the necessity or the rarity of such circumstances should they arise. I can think of practical examples of where someone might not qualify as an expert, but that might be the only source of the hearsay evidence and therefore there is work for the uniform Evidence Act to do in that regard.

But really, the key point—if we are to focus on providing a means by which Aboriginal people can avoid the opinion evidence rule by giving evidence about their own group, then you can go to McClelland and the second reading speech, you can go to the uniform Evidence Act, and I do not see anywhere else suggested, in terms of statute, circumstances in which there is a generalised exception for the giving of ostensibly expert evidence about the existence of an Aboriginal group, and of that group's laws and customs, to any Aboriginal person about any Aboriginal group. It might be reasonably said that this is likely to be not a practical problem, it won't arise very often, and so on.

There is also the neighbour point that might be raised—well, there is the only source of the evidence. But there is a serious concern that much as experts to give evidence to courts on a whole variety of topics will make themselves available nationally, experts who are sought in injury matters or in construction matters or a range of different circumstances in which expert evidence is required by the court, acquire national reputations for expertise and they will be found giving evidence in a whole variety of jurisdictions around the country, the same could certainly occur as a result of this provision.

It is not that I am raising some sort of generalised risk or fear and it is not a matter of respect or otherwise for the integrity of Aboriginal groups, but we are talking about an exception to the opinion evidence rule that is addressed by the commonwealth Attorney-General and by the uniform Evidence Act in terms of the use of the definite article I suggest for an important reason.

Yes, the integrity of Aboriginal people, oral evidence history and then application to the group of which the giver of the evidence is a member are all important principles. As I say, I open that further contribution by indicating that I do not think the Deputy Premier addressed that point at all, and to the extent that the two issues that the Deputy Premier did address our problem is the government, well, I can stand here and jettison them if that would help and maintain the point about the use of the definite article so as to do justice, for want of a better word, to the integrity of the evidence that might be given in line with section 78A, and that is applicable to the group of which the person giving the evidence is a member.

Progress reported; committee to sit again.