Evidence (Aboriginal Traditional Laws and Customs) Amendment Bill

Committee Stage

In committee (resumed on motion).

Clause 3.

The Hon. S.E. CLOSE: I am responding to the question and comment that were made before. The government's position in opposing this amendment remains steadfast. The member is interested in why we would oppose a change that restricts Aboriginal or Torres Strait Islander people to be only from the particular group that would be the subject of whatever is being considered by the court, and why it is an Aboriginal or Torres Strait Islander person from 'a group' rather than from 'the group'.

The argument really is over why one would restrict, unnecessarily, a court from hearing from an Aboriginal person who may have evidence of traditional law or custom that is of relevance and worthy of being heard by the court. It is only the first test of admissibility that is being offered through our bill. The relevance and usefulness of the evidence would then be weighed by the court.

To unnecessarily restrict by saying that a person from one group would be incapable of offering evidence that would be of use to understanding the impact on another—maybe because of interactions that the two cultures had, or the cultural knowledge of that group that might have bearing on understanding the experience of the other, is something that one could imagine could be the case and that a court would be very adept in the specific to know whether that was of relevance.

It is unlikely that someone from the Torres Strait Islander group would come down to try to give evidence on something that occurred for Kaurna people, and it is unlikely, if they did, that that would be something the court would find useful. It is very likely that people from different groups who have had long, intertwined histories would have things of relevance to say. Therefore, we see it as an unnecessary step to unduly restrict who is able to benefit from being able to speak as an Aboriginal person about traditional laws and customs.

Mr TEAGUE: I am grateful to the Deputy Premier for putting those matters on the record. It makes it clear that that is the government's view on the matter. I would just indicate again that that is a novel approach. It is an unusual approach by reference to the uniform Evidence Acts. I guess we will see whether the particular proposition that the Deputy Premier makes in relation to someone coming down from the Torres Strait Islands to give evidence about traditional laws and customs of the Kaurna people occurs. It highlights an example of where there is a significant distance involved, but that is the very possibility.

I have identified, by analogy, the common practice of experts in Australia, and even worldwide, who will develop a specialised practice in giving opinion evidence in a subject area of expertise. It is obviously the case that there will not be a geographical relevance in the same way—perhaps in a variety of different areas, personal injury being one example.

It ought to be borne very clearly in mind that the uniform Evidence Act that applies in a range of jurisdictions in Australia, including the commonwealth, is quite distinctly clear about this matter and so in terms of the Deputy Premier couching this in terms of the government not wanting to restrict or not wanting to limit or not wanting to avoid the possibility of there being some evidence given in circumstances where there has been interaction or something of that nature, let there be no doubt that the provision is contemplating evidence of the existence or non-existence, or the content, of traditional laws and customs of any Aboriginal group by an Aboriginal person. It is unusual and it is contrary to the uniform Evidence Act.

Again, I do not think endless worked examples necessarily assist. The point is well made. We are talking about evidence in a court that is in circumstances where by definition there is highly likely to be some conflict, some disputation around what is in fact the case. Yes, there may be circumstances where it is just a question of the adequacy of unchallenged evidence, but in circumstances where there are opposing sides and there is a motivating purpose to call admissible evidence, then this provision will, and quite deliberately so, provide for such evidence in what can be a really wideranging and open-ended way.

I draw particular attention to its divergence from the uniform Evidence Act. It appears that the government is both cognisant of that and deliberate in that course. The outcome in practice will further inform where we go from here. It may be that it rises to no particular height in practice. It may be that it is the source of a particular problem that will need to be revisited in terms of future reform.

Amendment negatived; clause passed.

Title passed.

Bill reported without amendment.

Third Reading

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) (17:33): I move:

That this bill be now read a third time.

I thank all the participants.

Bill read a third time and passed.