Proof of Aboriginal Customary Laws: The Australian Experience

622. The Need for Proof of Aboriginal Customary Laws. This brief review of the overseas experience supports the need for examination of the laws of evidence and procedure in Australia so far as they affect proof of Aboriginal customary laws. It is perhaps significant that modifications to the common law have been found necessary in many jurisdictions. There is also a need to examine alternative forms of proof, including the use of assessors and documentary sources, and related procedural changes.[617] On the other hand, the developments, which have occurred in some African countries and are proposed for Papua New Guinea, where the courts take judicial notice of custom in many cases and play a more active role in its application, are not necessarily appropriate for Australia. Such developments would require the courts to identify with and assist in developing customary law. In a country such as Australia, where the relevant customary laws are those of a small indigenous minority, this is not appropriate. On the contrary, there is a real risk of Aborigines losing control over their own customary laws, a matter which was referred to in Part II of this Report, and which is of understandable concern to many Aborigines.[618] There is only very limited scope in Australia for courts to take judicial notice of particular Aboriginal rules or customs, or to rely on previous decisions on these matters. The reasons for this include:

  • the variability of Aboriginal customary laws between different groups;

  • their differing application depending on the circumstances of each case;

  • the court’s incapacity directly to develop or control them;

  • the need for flexibility; and

  • the fact that they are generally not recorded in writing.

Suggestions for greater involvement by Australian courts in developing and systemarising customary law through precedent or judicial notice are, for these reasons, misplaced. As Allott points out, ‘once customary law has been codified or settled by judicial decision, its binding force depends on the statute or the doctrines of precedent; in short, it ceases to be customary law’.[619] Even if possible this is, in the Australian context and for reasons given already, certainly not desirable.

623. Codification of Aboriginal Customary Laws Rejected. For the same reasons, while there is merit (for anthropological as well as legal reasons) in unofficial attempts to record customary law, its codification is not desirable. This point has been made both in submissions and evidence to the Commission.[620] Overseas attempts at codification of customary law have not been successful, and are now generally regarded as misconceived.[621] Aboriginal customary laws should be proved in particular cases, rather than being codified or subject to a regime of judicial notice. Aborigines themselves will necessarily play a central role in the proof of their laws’ common law rules of evidence which might impede this are examined later in this Chapter.

624. Judicial Insistence on Proof. It appears that Australian courts are increasingly insisting upon proof of Aboriginal customary laws or traditions in cases where they are relevant, rather than relying upon statements of counsel which may be vague, unsubstantiated or poorly informed. In granting an application for bail in R v Joe Murphy Jungarai, Chief Justice Forster commented:

In these circumstances and notwithstanding the fact that persons charged with murder are normally not allowed to be released on bail I considered it right to make the order which I did make. This should not be regarded as a precedent in the sense that the mere assertion of similar facts from the bar table will be sufficient, in my view at least, to justify a similar order in every case. There must be credible evidence to support such a course being taken. As is well known at least to the people of the Northern Territory, Aboriginal customs vary greatly from place to place and, of course, the circumstances of killings must differ. What may be almost certain to occur in one place with respect to the circumstances of one killing may be unlikely to happen in another with respect to the circumstances of another killing.[622]

In Moses Mamarika v R the Federal Court declined to hold that injuries inflicted on the defendant by way of ‘payback’ were a reflection of Aboriginal customary law in the absence of evidence to that effect (although the Court nonetheless took the payback into account sentencing).[623] And in Jacky Anzac Jadurin v R the Federal Court declined to hold that Aboriginal customary law allowed the accused to beat his wife in the circumstances of the case, in the absence of clear evidence to that effect. The Court said:

There was a suggestion made on behalf of the appellant, not by way of justification but by way of explanation, that in Aboriginal society it is not unusual for women to be beaten if they do not obey their husbands. In response to a question along those lines ... a relative of the appellant who gave evidence in mitigation of sentence, answered ‘yes, that happens sometimes, yes ...’. In our opinion that answer goes no further than to describe something which may occur from time to time; it goes no distance towards establishing that such conduct is an accepted facet of Aboriginal society. The suggestion overlooks the fact that, at least in the experience of the courts, when such beatings take place it is usually after a great deal of alcohol has been consumed. It also ignores the very complex web of relationships between men and women in Aboriginal society. In the present case we are of the opinion that the Court should approach the matter on the basis that the appellant beat his wife in anger when they were drunk, and that this brought about her death.[624]

Obviously much will depend on the facts of each case, and there can be practical and logistic difficulties in marshalling and presenting appropriate formal evidence in some cases. But this insistence on evidentiary support for assertions of Aboriginal custom or tradition is salutary. It avoids the risk of accepting uncontested assertions of counsel based on instructions from his client. Experience in a number of cases has shown that such assertions may be without foundation.[625] However evidence has often been presented and acted on although given in an informal way by persons who would not qualify as experts for this purpose. Admittedly this evidence is often presented as part of a submission on sentence. There has always been greater informality and flexibility in applying the rules of evidence in relation to sentencing, and judges have sometimes been prepared to accept statements from the bar table, for example, as to the nature of any ‘traditional punishment’ the accused was likely to receive.[626] However similar evidence from persons who would not qualify as experts may have to be given on issues of substantive liability, both under the present law and under the Commission’s proposals, and in such cases the rules of evidence are likely to be applied more strictly.

625. Some Australian Cases. Before examining in more detail the present Australian rules regulating the proof of Aboriginal customary laws it is helpful to set out some cases in which such proof was given. The best known of these, Milirrpum v Nabalco Pty Ltd,[627] is discussed later in this Chapter. But other significant examples include the following:

  • Police v Ralph Campbell.[628] The accused was charged before a magistrate with unlawful wounding. The victim was, he claimed, his traditional wife. The police prosecutor sought to call her, claiming that she was merely a de facto spouse, and that in any event she was a compellable witness because the law does not recognize traditional Aboriginal marriage for this purpose. Thus apart from the dispute as to the law of compellability,[629] there was a dispute between prosecution and defence over whether the victim and defendant were married under their customary laws. Evidence was given by the victim that they were married under the customary law of the Aranda. They were not promised to each other, and the Aranda have no ceremonial marriage. But they were ‘right skin for each other’, and their marriage was accepted by her parents and the Hermannsburg community.[630] On the other hand the victim’s father’s evidence was confused: this seemed to result in part from a confusion between ‘church marriage’ and ‘bush marriage’, and in part from opposition to their relationship in view of the defendant’s violence towards the victim. Thus he said that ‘bush marriage was no good’, that they were not ‘really married from church’.[631] The confusion was reduced to some extent by the victim’s mother who stated that her daughter and the defendant were ‘bush married’ and that they were allowed to live together in Aboriginal law. In response to a question whether the marriage was a ‘good marriage’ (presumably in the sense of a valid one), she replied that it was not, because of the fighting between the victim and the defendant.[632] A local Lutheran Pastor then gave evidence that a second marriage (such as this was for the defendant) was possible under Aranda tradition after the break down of the former marriage.[633] The defendant himself denied the relevance of a marriage ceremony and asserted that they were married: ‘our marriage is a marriage in the tribal way as the white and white’.[634] On this evidence Mr Murphy SM found that the victim was ‘the tribal wife of the defendant’.[635]

  • R v Andy Marnarika.[636] The defendant, 34 years old, was charged with murder at Groote Eylandt. He pleaded not guilty to murder but the Crown accepted a guilty plea to manslaughter, on the basis that he did not intend to kill or do grievous bodily harm. The defendant arid the victim had been drinking separately at the local club. No-one saw them speaking during the evening and they did not leave the club at the same time. Later in the evening the defendant walked to the victim’s house, went into the bed room and without any conversation speared the deceased once in the chest with a shovel-nose spear, killing him. He claimed that he did not intend to inflict any serious harm but ‘to spear him a bit, not to finish him’. The apparent motive was an argument the previous night: the police investigation failed to uncover any other motive. The defendant’s counsel, in a successful submission in mitigation of sentence, called as witnesses the community adviser at the time of the offence, the current community adviser, a leading member of the defendant’s clan (who was the defendant’s brother and Council President at Umbakumba), two members of the victim’s clan (both of whom were leaders at Angurugu, the other Aboriginal community on Groote Eylandt, and also participants in the subsequent settlement of the dispute), and a member of another related clan. The evidence indicated that, while the defendant was in police custody awaiting trial, a large meeting was held at Umbakumba between the different clans. As a result a full-scale minungudawada or trial by spears was held forthwith. A large number of spears were thrown at the defendant’s brothers and family.[637] Only one person was struck, causing minor bruising. The trial by spears removed the tension and disturbance in the community, and especially among the victim’s relatives, allowing the defendant to return. As a member of the victim’s clan said, ‘we settled this business’.[638] Justice Gallop sentenced the defendant to 3 years imprisonment with hard labour, with a 12 month non-parole period. This, however, was suspended on the defendant’s entering into a recognisance in the sum of $500 to be of good behaviour for a period of 3 years. Justice Gallop said, in part:

I take account of the impact on the accused himself, of this trial by ordeal that his clan was subjected to and I accept the evidence which has been put to me about that by Mr Josif and the other witnesses. A very significant matter for a sentencing power is the attitude of the community, particularly the community in which the accused lives and works. I have abundant evidence here before me of the attitude of the community and it is that having considered the non-violent nature of this man and his good standing generally in that community and the fact that the trial by spears has already been carried out, imprisonment is not expected by the community in relation to this offence and this accused.[639]

No objection was made by the Crown to the admissibility of any of the evidence led for the defence, despite the fact that some of it at least was probably strictly inadmissible. Some of the community adviser’s evidence, relating to the consequences of the minungudawada, may well have been inadmissible as hearsay; some of it was clearly opinion evidence, although the qualifications of the witness to speak about the community as an expert may have made this admissible.[640] On the other hand this witness observed, and all 4 Aboriginal witnesses participated in the settlement process, and under ordinary rules of evidence all could testify as to what they saw and did and as to their understanding of its significance. Beyond that, the Aboriginal witnesses gave some evidence about customary law and gave their opinions about the resolution of conflict within the community. Whether such evidence is technically admissible is unclear,[641] but it was admitted without any difficulty and, indeed, acted upon by the judge in sentencing the defendant.

626. The Work of the Aboriginal Land Commissioner.[642] The work of the Aboriginal Land Commissioner under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) is also relevant, as the most extensive formal inquiry yet held into matters of Aboriginal customary laws. The Commissioner, though a judge,[643] does not act in a strictly judicial capacity in hearing land claims. His function is to determine the traditional Aboriginal owners of certain Crown land in the Northern Territory on an application by or on behalf of Aborigines claiming to be tradition al owners, and to recommend to the Minister, in appropriate cases, the granting of such land under the Act. The Commissioner conducts an administrative inquiry, not a judicial proceeding, and he is not bound by the laws of evidence. On the other hand, he can take evidence on oath or affirmation,[644] can compel attendance of witnesses and the production of documents,[645] and in exercising his functions is clearly bound by the rules of natural justice. He has to determine the existence of traditional owners and the strength of their attachment and then, applying the principles stated in s 50(4), to make recommendations for the granting of the land claimed or any part of it.[646] Obviously a crucial part of his role is to hear and assess evidence of traditional attachment to land:

each land claim involves a particular group of people claiming traditional ownership of a particular area of land. Naturally, as claims proceed, some general body of principle emerges and in a real sense each claim builds upon the knowledge and experience gained in earlier ones. But in the end findings and recommendations must have regard to the material presented. Hence decisions about the identity of traditional Aboriginal owners may vary.[647]

In a number of respects land claim hearings have been conducted rather like court proceedings. The Commissioner’s Practice Directions for hearings, as revised in 1979, stated:

The hearing of an application will be conducted broadly along the lines of conventional court proceedings although with less formality ...

Witnesses will be asked to take an oath or make an affirmation before giving evidence and ordinarily will be subject to cross-examination.[648]

To this extent the hearings provide useful guidance on the evidentiary problems of proof of Aboriginal customary law.

  • Admissibility of Evidence. Practice Direction 25 (1979) stated:

There will be no strict adherence to the ordinary rules of evidence. In particular as a general proposition hearsay evidence will be admitted, the weight to be attached to it to be a matter for submission and determination. Relevancy will be the controlling test for the admissibility of evidence.[649]

In the Borroloola Land Claim, the first claim heard, counsel for two Northern Territory primary producers’ organizations argued that evidence given by witnesses Avery and McLaughlin was hearsay. Counsel for the claimants denied this. The Commissioner, Justice Toohey, commented that in his view:

... both counsel were half right. When Mr Avery described the nature of the landowning group, the concept of clans and territories, the attributes of ownership of land and the nature of semi-moieties and sub-sections, he was speaking as an expert dealing with general anthropological propositions. The fact that his opinions were to some, perhaps to a large, extent based upon what he had been told by Aboriginals did not make that evidence hearsay any more than it would be right to describe as such the opinion of a physician based in part upon what he had been told by patients over a number of years. At the same time, when Mr Avery and Mr McLaughlin recounted what Aboriginals had said regarding the whereabouts of their own country, they were in my opinion giving evidence of a hearsay nature. But as I indicated in the practice directions I do not adhere strictly to the rules of evidence; indeed there would be serious difficulties for all concerned if I did. In my opinion the issue is more one of the weight to be attached to that sort of evidence. This depends to some extent upon the degree to which it is corroborated. What Mr Avery and Mr McLaughlin were told was substantially supported by the testimony of Aboriginals given at Borroloola.[650]

More recently the Commissioner has re-emphasised both the hearsay character of much of the evidence, but also its value. In his reasons for decision of 1 October 1985 in the Warumungu Land Claim, Justice Maurice commented that:

what an anthropologist is told, at least in the context of gathering materials for the purposes of a land claim, is hearsay through and through.[651]

However he also stated that:

Statements spontaneously volunteered by Aboriginal informants may be of great value in assessing a claim. No doubt this is why they are so often cited when anthropologists and others give evidence. Ordinarily, self-serving statements made out of court are excluded because of the ease with which they can be manufactured. However, in land claims the value of and place for such materials has been clearly demonstrated.[652]

  • Informality in Presentation of Evidence. Considerable informality has been allowed in the presentation of evidence. For example videotaped discussions and meetings have been presented, although these would not be admissible under the ordinary rules of evidence in establishing the truth of things said.[653] Evidence has been taken from persons (especially women) in groups, although the Commissioner has observed that care needs to be taken in ensuring that what is said really does represent the view of the group and not only vocal individuals within it.[654] Considerable leeway has been shown in allowing interpreters to discover what is being said and to express it clearly[655]: this contrasts with the sometimes pedantic insistence of the ordinary courts on ‘literal’ interpretation. As the Commissioner commented, ‘it is important to retain flexibility in the way in which evidence is presented’.[656]

  • Importance of Anthropological Evidence. From the first, the evidence of anthropologists has been of great importance, and not merely in giving form and better expression to that of the Aboriginal claimants. As the then Commissioner (Justice Toohey) said in an early Report:

In the course of the Warlpiri hearing it was said by those called on behalf of the claimants: ‘We would emphasise however that we are not the authorities on the matters of land ownership, only the recorders on behalf of the traditional owners.’ That may underplay the role of anthropologists, for their opinions have been valuable in regard to the language of the Act itself. As the principles to be applied under the Act become settled the position of the anthropologists as recorder only will, perhaps, become more accentuated.[657]

There has been no tendency for the role of the anthropologist to be reduced in this way, in subsequent claims. In the Utopia Land Claim, Justice Toohey said:

the Land Rights Act is not an exercise in anthropology. Anthropologists are the recorders of material and their capacity to collate it, aid in its presentation to a hearing and comment upon it has proved invaluable. The views of anthropologists concerning the language of the Act, especially where the statute uses terms having a reasonably understood meaning in anthropology, are of great assistance and I have relied upon them in earlier hearings. But, in the end, what has to be done is to determine the meaning of the words used in the Act, construe the definition accordingly and then apply it to the material presented ... There was general agreement that, with the exception of the phrase ‘local descent group’, neither the term ‘traditional Aboriginal owners’ nor the components used in its definition were technical anthropological expressions or had any generally accepted meaning among anthropologists.[658]

Anthropologists continue to play a highly significant role in the hearings, as indicated by the practice of appointing consultant anthropologists in relation to each claim, in the responsibility of the consulting anthropologist to report to the Land Commissioner on the interpretation of the anthropological evidence, and in the involvement of anthropologists in the preparation of Claim Books in each case.

  • Relationship between Aboriginal and Anthropological Evidence. Apart from questions of the meaning of technical terms in the Act, the evidence of anthropologists has chiefly been important in relation to that of Aborigines themselves. Successive Commissioners have stressed the need for corroboration of the anthropological evidence by that of the Aboriginal claimants, although there has been some difference of approach as to how this is best done.[659] In the early hearings, the practice was to hear the evidence of the anthropologists after that of the Aboriginal claimants. The advantages of this, in Justice Toohey’s view, included:

an immediate familiarity with the claimants and with the country. Also it cast the anthropologists more truly in ‘the role of recorders. A comprehensive and helpful claim book was available to give a broad picture before the evidence began but there were not the same tendency to see the anthropological model as one into which the evidence of all witnesses should fit.[660]

The same course was taken in the later Utopia Claim.[661] More recently, however, Justice Maurice has insisted that the anthropological evidence, or at least the written materials on which it is based, should be available both to the Commissioner and to counsel for objectors, before the Aboriginal evidence is given, on the ground that this enables a more thorough testing of the Aboriginal evidence.[662] Whichever procedure is adopted, the land claims experience supports the view that the evidence of traditional Aborigines is a primary source of information about the content and working of their customary laws.