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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2023-06-01 Daily Xml
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Bills

Evidence (Aboriginal Traditional Laws and Customs) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 4 May 2023.)

The Hon. T.A. FRANKS (15:20): 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.

The Hon. J.M.A. LENSINK (15:24): I rise to place some remarks on the record in relation to this bill, which amends the Evidence Act 1929 and which was introduced in this place on 4 March this year. By way of background, the rules of evidence generally require that a witness providing expert evidence must do so based on that person's expert qualifications or experience in the relevant field. Without such qualifications evidence would be inadmissible according to the opinion rule or the hearsay rule.

The law of evidence in South Australia is the subject of both common law and statute. Some jurisdictions in Australia have codified the law of evidence by statute, and this is known as the 'uniform' Evidence Act. The uniform Evidence Act includes exceptions to the rules of evidence in relation to evidence of traditional laws and customs of an Aboriginal group. This bill will provide an exception to the rules of evidence in the case of evidence given by an Aboriginal person of traditional laws and customs from an Aboriginal group.

Clause 3 of the bill inserts a section which will have the effect of providing an exception to the opinion and hearsay rule where an Aboriginal person gives evidence relating to the existence or non-existence or the content of traditional laws and customs of an Aboriginal group. It will also allow the court to make orders or other arrangements that it sees fit, having regard to Aboriginal traditional law and custom.

The bill will incorporate rules along the lines of those applicable in the uniform Evidence Act jurisdictions but will apply those exceptions only to such evidence given by an Aboriginal person and not limit the scope of the exception to the person's own group respectively. I understand there is some case law relevant to this matter that is quite contemporary. With those comments, I indicate support for this bill.

The Hon. E.S. BOURKE (15:26): I rise to speak in support of the Evidence (Aboriginal Traditional Laws and Customs) Amendment Bill 2023. The inadmissibility of hearsay and opinion evidence are long-established principles of common law. Our legal system says that evidence from a witness is only admissible if it is something they have personally experienced, seen or heard. The hearsay evidence rule prevents a witness telling the court what someone else has told them. Similarly, opinion evidence is only admissible if it is from a recognised and suitably qualified expert.

These essential rules of our legal system are inconsistent with the rich oral history traditions of Aboriginal culture. As we all know, the Aboriginal and Torres Strait Islander people of Australia have the oldest continuing culture on earth. This is a source of pride for many Australians. Aboriginal culture has been able to continue for thousands and thousands of years due to customs and laws being passed down orally.

This bill is the result of representations to the Attorney-General by the Aboriginal Legal Rights Movement and the Law Society of South Australia and comes after the Australian Law Reform Commission's Report 102, published in 2006. The report considered, among other things, whether the uniform Evidence Acts, which are in place in other Australian state jurisdictions and the commonwealth, should be amended to allow admissibility of evidence of the Aboriginal and Torres Strait Islander laws and traditions.

As a result of the Australian Law Reform Commission recommendations, the uniform Evidence Acts were amended to allow Aboriginal people to give hearsay or opinion evidence. If this bill is passed, similar changes will be made to South Australia's Evidence Act. The Mabo case helped pave the way for these changes. During those proceedings over 30 years ago, the Meriam people faced great difficulty in submitting evidence of their traditions and customs. Over 300 objections were made to Eddie Mabo's evidence of what his grandfather had told him about the Meriam people's connection to the land on the grounds that it was hearsay.

Since then, courts have been more willing to take into account the customs and laws of Aboriginal traditions, particularly in relation to the native title claims. However, the laws of evidence still present a barrier to admissibility of that evidence. A strict application of the hearsay and opinion evidence rules would make it nearly impossible for the courts to understand the culture and laws of Aboriginal people.

The Law Reform Commission's report noted that, in addition to native title claims, oral history of Aboriginal laws and customs is relevant to criminal law defences and sentencing, succession, family law (including the placement of children) and coronial matters. For example, evidence on traditional punishment such as spearings or banishment might be taken into account in sentencing submissions, and the importance of maintaining a connection to culture is relevant to family law and child protection matters.

However, without statutory amendment, the risk remains that evidence of Aboriginal traditional laws and customs will be treated inconsistently by the courts. Admission of the evidence is often contested by opposing counsel, and judges can take very different approaches regarding its admissibility.

It should be noted that this bill does not seek to give special weight to Aboriginal oral history evidence. Courts will still be required to weigh up evidence and find the facts in the way that they normally would. These amendments simply allow the court to reach a proper understanding of traditional Aboriginal customs and laws.

It is significant that we are debating this bill during National Reconciliation Week. It is one more step in recognising Aboriginal people as the custodians of this land and the importance of Aboriginal laws and customs to them. The bill also shows exactly why we need a Voice to Parliament, because plainly some of our laws do have a specific impact on Aboriginal people about which they should be consulted. I commend the bill to the chamber.

The Hon. T.T. NGO (15:31): I rise to speak in support of the Evidence (Aboriginal Traditional Laws and Customs) Amendment Bill. As a member of the Aboriginal Lands Parliamentary Standing Committee in this Fifty-Fifth Parliament and during the previous parliament, I have a deep interest in all matters that affect our Indigenous people.

For the purpose of providing a summary background in regard to the progression of this bill, in 1986 the Australian Law Reform Commission released Report 31. This report identified that the laws of evidence and procedure adversely impacted on the proof of Aboriginal customary law. It found two main difficulties in the rules of evidence, one relating to the ability to give evidence about matters of fact and opinion (the opinion rule) and the other with firsthand evidence based on personal knowledge (the hearsay rule).

The difficulties with the opinion rule and the hearsay rule are highlighted if we put them in the context of treating evidence presented by an Aboriginal person of traditional Aboriginal laws and customs. If an Aboriginal person provides evidence based on what they have been orally told by older Aboriginal generations, which is the way by which customs and traditional law are passed on, the discord between the justification underpinning the hearsay and opinion rules in the common law system with the Aboriginal and Torres Strait Islander oral tradition of knowledge becomes apparent.

Likewise, restricting Aboriginal people from being able to offer opinion evidence about Aboriginal laws and customs unless they can satisfy the requirements of being an expert by establishing that they acquired this specialist knowledge through training, study or experience is also not appropriate for Aboriginals providing evidence.

Some 20 years after this finding, Report 102 issued by the Australian Law Reform Commission about the uniform Evidence Act noted this same discord between the hearsay and opinion rules in the common law system with the way in which the Aboriginal and Torres Strait Islander oral traditional knowledge is maintained. Recommendations were proposed which resulted in the commonwealth Evidence Amendment Act 2008 implementing sections 72 and 78A to address this discord.

Just to clarify, the uniform Evidence Act is a legislative framework that aims to enhance the administration of justice by providing a clear and predictable framework for the admissibility of evidence including hearsay and opinion evidence. It provides guidelines and criteria for determining the relevant credibility and weight of evidence presented in court.

The provisions sections 72 and 78A now currently operate in Australia's uniform Evidence Act jurisdictions: the commonwealth, New South Wales, Victoria, Tasmania and the two territories. Because South Australia was a non-uniform Evidence Act jurisdiction, these provisions were not adopted in our state. The Attorney-General, the Hon Kyam Maher MLC, introduced this bill amending the South Australian Evidence Act 1929 to enact those provisions similar to sections 72 and 78A of the commonwealth Evidence Act.

This bill will amend South Australia's laws so that evidence will not be deemed inadmissible when it is given by Aboriginal people of Aboriginal traditional laws and customs solely because that evidence is based on what has been told to them by older generations. It will also not restrict Aboriginal people providing evidence with a requirement they show they acquired their specialised knowledge through training, study or expert experience.

This bill also 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 inclusion arose out of the consultation process and was sought or supported by the Chief Justice, the Law Society of South Australia, the Aboriginal Legal Rights Movement and the Director of Public Prosecutions. This bill will allow Aboriginal people to provide evidence about their own traditional laws and customs in court. I commend this bill to the house.

The Hon. J.E. HANSON (15:37): I rise to provide some thoughts in relation to this bill, obviously being supportive of it. It will provide a statutory exception to the common law rules against hearsay and opinion, as has been noted by many other members and speakers. What is the importance of that? It is in relation to evidence which will critically be given about laws and customs of Aboriginal people, something which we see at federal level has been amended and really should form part of uniform laws across Australia. However, South Australia is a little bit behind.

These rules of evidence, as they currently operate, will prevent Aboriginal people from giving evidence about their own traditional customs in court. What I would like to highlight is a couple of things. The Hon. Mr Ngo has rightfully already referred to the Australian Law Reform Commission report in 1986, which recommended further evidence be given in courts by Aboriginal people concerning the content and nature of the Aboriginal customary law at that time.

Out of that particular report, if you like, the commissioner made a couple of points that I think are worth highlighting. The commissioner, who was Professor James Crawford at the time, noted that:

It would be odd if the courts were to accept the opinion of outside experts, while declining to accept as expert the opinions of the Aborigines whose customs and traditions were at issue.

It is a fairly pertinent point. He went on to highlight a particular case in regard to that, which is Milirrpum v Nabalco Pty Ltd. Without going into the content of that case, it was noted by the commissioner that it was assumed that the Aboriginal clan leaders who gave evidence were not experts. I quote:

Objections to the admissibility of their evidence had to be dismissed on other, special, grounds. If this assumption reflects the common law, clearly some change is needed.

That was in 1986 and here we are today. I move on to another paragraph of that report, where the commissioner further notes:

In practice it is inevitable that Aboriginal witnesses with authority to speak on these matters will be asked to express their view in more general terms. Beyond a certain point, general statements about customary laws, and about their application in a particular case, would be classed as matters of opinion rather than fact, and would therefore be inadmissible unless some other exception to the opinion evidence rule applied.

That is the end of that quote from the report. Opinion rather than fact, making them, of course, inadmissible. That gives some weight to some of the other statements made by members here today in support of these changes, but it is worth noting that that observation was made at a very high level in 1986: there is a problem with our laws.

I further go on to note Commissioner and Professor James Crawford's evidence in his report, which states:

Both overseas and Australian experience (in the courts and in land claims) demonstrates the importance of Aboriginal testimony about their customary laws. Such testimony has its difficulties, but so does anthropological evidence. The best evidence seems to be a combination of both, with expert evidence providing a framework within which the Aboriginal evidence can be understood and assessed. This should provide that evidence given by a person as to the existence or content of Aboriginal customary laws or traditions is not inadmissible merely because it is hearsay or opinion evidence, if the person giving the evidence:

has special knowledge or experience of the customary laws of the community in relation to this matter; or

would be likely to have such knowledge or experience if such laws existed.

I think that really gives a fair chunk of context to what it is we are doing today, and that is why I went to that report, and really highlights part of the problem of why it needs to be done and should have been done way before today. That report was in 1986. Those observations were made very strongly in 1986 and it has taken quite some time. While I concede that changes were made in other jurisdictions, including the federal jurisdiction—I think in the federal jurisdiction in 2008—it has taken quite some time for those very clear and wise observations to reach through and be changed in our law.

It is also worth noting in regard to that that this has been raised with former attorneys-general, not least of all former Attorney-General the Hon. Vickie Chapman. On 10 February 2021, the Law Society wrote to the Hon. Vickie Chapman, who was Attorney-General at that time, stating:

I am writing at the instigation of the society's Aboriginal Issues Committee to request your consideration of amendments to the Evidence Act 1929. In our view, amendments are needed to resolve difficulties that arise in state courts exercising federal jurisdiction as to the proof of Aboriginal Customary Law by direct testimony of Aboriginal witnesses, which is severely limited by the strict operation of common law rules that presently apply.

No action was taken by the former Attorney-General in regard to that letter from the Law Society. I am aware also that the Aboriginal Legal Rights Movement wrote to the former Attorney-General outlining similar concerns and no action was taken in regard to their request either.

But here we are today. Despite the fact that in 1986 we had the Australian Law Reform Commission's report and despite the fact that I have no doubt previous attorneys-general have had these concerns brought before them, targeted consultation on the draft bill, which we have here, took place over January and February 2023 and, unsurprisingly, were met with a great deal of support. The proposed amendments enable and empower, I would hope, Aboriginal people to give hearsay or opinion evidence in a court about the traditional laws and customs of an Aboriginal group. As I go back to that 1986 report that was given, I think that pretty clearly outlines why that is important.

These changes will effectively replicate the position as it has existed for several years in the uniform Evidence Act jurisdictions, which of course has prevented much of the injustice around evidence given by Aboriginal people in courts. However, they only include the commonwealth, New South Wales, Victoria, Tasmania, the ACT and the Northern Territory. What we are seeing in regard to the laws we are putting in place here is not a cut and paste of those uniform evidence provisions, because the South Australian Evidence Act differs in structure, style and so on to the uniform Evidence Acts.

Accordingly, the bill has been drafted in a manner that is appropriately adapted to a South Australian context. I will save everyone the very boring reality of going through how; however, I note that that has occurred. It still clearly provides what we are doing here though, regarding if an Aboriginal person gives evidence relating to the existence, non-existence or content of traditional laws and customs of an Aboriginal group, evidence that would ordinarily be inadmissible in line with what was noted in the 1986 report, under either the common law hearsay rule or the common law opinion rule.

I feel it is not appropriate for the laws of this state—and I think many other speakers have made that clear as well—to continue to treat evidence on traditional laws and customs given by an Aboriginal person as being prima facie inadmissible primarily because it is based on what they have been orally told by older generations, when this is the very manner and form in which traditional law and custom is maintained.

Similarly, I feel that it is also not appropriate to restrict Aboriginal people from being able to give opinion evidence about the laws and customs of an Aboriginal group unless they can satisfy the requirements of being an expert by establishing that they have specialised knowledge based on training, study or experience. This bill addresses those concerns too, I feel.

The bill includes, as has been highlighted by the Hon. Mr Ngo (saving me from having to repeat it), a fairly broad discretion from courts to make orders or other arrangements about how it may receive or deal with evidence relating to Aboriginal traditional laws and customs. This inclusion arose, as was noted by the Hon. Mr Ngo, out of the consultation process that I have referred to and which was sought, or indeed supported, by people no less than the Chief Justice, the Law Society of South Australia, the Aboriginal Legal Rights Movement and the Director of Public Prosecutions.

There is a lot more that could be said about how we have come to this point; however, I think that, under the circumstances, we will treat it all as positive and we will move on. Obviously, I support the bill we have.

The Hon. S.L. GAME (15:48): I rise briefly in opposition to this bill. That is because it is another piece of legislation based on race. While I absolutely support improvement to the court system, it needs to benefit everyone. The rule of law is meant to be followed by all, and this is a system that allows people of certain races to present evidence differently than others.

It is concerning how the worlds of politics and law are merging at the moment. Just last week, a Supreme Court Justice in New South Wales called a member of parliament racist because of his views on the Federal Voice. We are all supposed to be equal under the law, and for this reason I cannot support the bill.

The Hon. C. BONAROS (15:48): I rise to speak on behalf of SA-Best on the Evidence (Aboriginal Traditional Laws and Customs) Amendment Bill 2023. The bill, as we know and as has been highlighted, seeks to amend the Evidence Act 1929 to provide an explicit exemption to the common law hearsay and opinion rules for matters relating to the existence or non-existence of the traditional laws and customs of an Aboriginal group.

It will allow a magistrate or judge the opportunity to listen to oral accounts which may otherwise be ruled inadmissible. It will allow a magistrate or judge to hear evidence about traditional hunting, fishing and gathering rights; criminal law and sentencing and other local justice mechanisms; as well as family and kinship groups and property matters, before deciding what weight, if any, should be given to that evidence. Evidence may—and I think this is a very critical point to make—then be tested during cross-examination or by a rebuttal witness.

The amendments recognise the distinct contrast between what has been referred to as the Anglo-Australian legal system and Aboriginal traditional laws, customs and cultures. One is well documented, while the other relies heavily on stories and accounts which have been passed down through generations.

We also know not all Indigenous Aboriginal groups are the same. As respected elder, Nunga Court member and Ngadjuri woman Patricia Waria-Read, Aunty Pat as she is most commonly and better known to all of us, told ABC news recently:

We're not all the same, we're all different clans, we've got our own special certainties in our culture.

This change gives the magistrate a chance to listen to and respect the person that sits in the court and enhance their idea about how we should talk about a sentence.

If Aunty Pat says these changes are needed, then I for one accept that they are.

The Hon. K.J. Maher: You'd be in trouble if you didn't—a lot.

The Hon. C. BONAROS: She is a very influential woman, Aunty Pat. There have been many other expert stakeholders and people with lived experience calling for these changes for a number of years. The difficulty in catering for the uniqueness of Aboriginal customs and traditions was canvassed nationally as far back as 1986—and I think that is also another very critical point to make in this debate—when the Australian Law Reform Commission first gave consideration in the context of native title.

The ALRC report gave further consideration in 2006, triggering an update of commonwealth laws soon after, in 2008, which is another very critical point to make in this debate. Other jurisdictions have since followed suit, and I believe that we are now one of the last to amend our laws consistent with those changes. I am not entirely sure why it has taken so long for these laws to come before our parliament. I think we may have some theories about that, but perhaps the Attorney might be in a position to shed some more formal light on that in a moment. Nevertheless, we are pleased to see that they have.

The second part of the bill contemplates the need to ensure flexibility in the way in which evidence is given, received and published. I understand this was not in the draft bill originally circulated to stakeholders but nevertheless received the blessing of the Chief Justice, the Law Society, the ALRM and the DPP.

I make the point again that the examples which have been provided to us include allowing more than one person to give evidence at the same time, making orders permitting only a particular gender to be present at certain times, permitting evidence to be given through song and dance and, while powers already exist for closed courts, the exclusion of certain people from a courtroom and conducting matters off site.

We appreciate that this bill seeks to make it crystal clear, and I note once again and impress upon all members of this place that this is not a situation that is by any stretch of the imagination unique to South Australia. Indeed, there are other, similar provisions that apply in relation to other areas that do not necessarily have anything whatsoever to do with Aboriginal traditional laws and customs but do nevertheless have similar qualifying provisions.

I make the point once again, and impress upon members of this place, that we are one of the last jurisdictions to do this and that the recommendations of the ALRC date back as far as 1986, 2006 and then, obviously, their implementation federally in 2008. This is not a new concept. We are—

The Hon. T.A. Franks: Who was the Attorney-General back then?

The Hon. C. BONAROS: Who was the Attorney-General back then the member interjects. This is absolutely not a unique situation to South Australia. If anything, I would say it is bringing our laws up to date with other jurisdictions and the commonwealth, a modernising of our laws if you like in relation, in this instance, specifically to Aboriginal traditional laws and customs. For those reasons, and with those words, I confirm our support for the bill.

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:55): I thank members for their contributions during the committee stage, and I thank members who reflected on how important changes like this are, reflecting something that has been an omission from our body of evidence law in South Australia. Many other states have these provisions, and I am pleased that this parliament is now considering and, hopefully from the contributions, will update this.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. J.M.A. LENSINK: I advise the council that we would like to foreshadow that we would like the Attorney to take consideration of a matter between the houses for when this bill is discussed down there. We were considering an amendment, which I will read as follows, and would appreciate if the Attorney would take that on board for consideration. This relates to incorporating the uniform evidence exceptions as follows:

Admissibility of 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 kind to which this section applies—

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

The Hon. K.J. MAHER: I thank the honourable member for her contribution, and I can say that I would be most happy to have a look between the houses at anything that would usefully add to the effectiveness of this bill. Of course, we want this to be as effective as possible. I have not had the chance to properly consider what the honourable member has put forward. It might be that there are some differences. We will look in the spirit of collaboration to see if it is something that we will add to the bill, but it is different from what the commonwealth provisions apply.

The commonwealth, as well as New South Wales, Victoria, Tassie and the territories, are uniform evidence law jurisdictions and so there are some differences to what we see apply in those, but we are happy to have a look at that and if it adds to what we are doing we will be most happy to discuss that with the honourable member and the member for Heysen, the shadow attorney-general, between the houses.

The Hon. T.A. FRANKS: I would just like to say that this is the second time we have had an Aboriginal affairs related bill where the Liberals have said that they are going to do amendments in the other place. I remind them that there is a crossbench, not just the government. If they are going to have these conversations between the houses, they should remember that both of the houses are different in their composition and perhaps in the future be more respectful of the crossbench.

The Hon. J.M.A. LENSINK: I am happy to take that on the chin for the honourable member. It is not intentional, but this is just something that slipped through the radar.

Clause passed.

Remaining clauses (2 and 3) and title passed.

Bill reported without amendment.

Third Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (16:01): I move:

That this bill be now read third time.

Bill read a third time and passed.

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