Evidence (Aboriginal Traditional Laws and Customs) Amendment Bill

Introduction and First Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:39): Obtained leave and introduced a bill for an act to amend the Evidence Act 1929. Read a first time.

Second Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:41): I move:

That this bill be now read a second time.

The bill I introduce today is the Evidence (Aboriginal Traditional Laws and Customs) Amendment Bill 2023. In 1986, the Australian Law Reform Commission released Report 31, the Recognition of Aboriginal Customary Laws, which made recommendations about the recognition of Aboriginal customary laws in a wide range of issues including marriage, property, criminal law, traditional hunting, fishing and gathering rights.

The report also considered the ways the laws of evidence and procedure adversely impacted on 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 firsthand evidence based on personal knowledge (the hearsay rule).

The Australian Law Reform Commission reconsidered this aspect of their Recognition of Aboriginal Customary Laws report nearly 20 years later during its examination of the operation of the commonwealth Evidence Act. The 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 the 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 the 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 reforms of the uniform Evidence Acts in operation in other jurisdictions including specific recommendations that uniform Evidence Acts be amended to provide an exception to the hearsay rule for evidence relevant to Aboriginal and 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 and Torres Strait Islander group about the existence or non-existence or the content of traditional laws and customs of the group.

The commonwealth Evidence Amendment Act 2008 substantially implemented the recommendations of the Australian Law Reform 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 new provisions now operate in the Uniform Evidence Act jurisdictions—the commonwealth, New South Wales, Victoria, Tasmania and the two territories.

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 me to ask me to consider amending the South Australian Evidence Act 1929 to enact provisions similar in terms to sections 72 and 78A of the commonwealth Evidence Act. The Aboriginal Legal Rights Movement also raised this issue with me.

Having considered their requests, 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 exemption 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 much 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. This 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 Act. The South Australian Evidence Act differs in structure, style and language to the uniform Evidence Act. Accordingly, the bill has been drafted in a manner which 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 admissible under either common law hearsay rule or the common law opinion rule will be admissible. It is important to take into account that admissibility is not the same as proof; that is, evidence given under the new exceptions will continue to be weighed by the court in the usual way.

For example, the evidence given may still be tested by an opposing party by 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 Act 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 or customs.

This might include orders to facilitate the reception of the evidence in a culturally appropriate manner, such as permitting one or more persons to give evidence at the same time, providing for evidence to be given in another manner, or restricting who is permitted to be in the court at the time that evidence is given, such as permitting only 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 courts already permits such orders to be made, the bill makes it clear. It also ensures that the court and all parties to the 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. The bill recognises that fundamental truth. I commend the bill to the chamber and seek leave to insert the explanation of clauses in Hansard 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.

Debate adjourned on motion of Hon. D.G.E. Hood.