642. The Need for Clarification. It is not satisfactory that the evidence of traditionally oriented Aborigines about their customary laws and traditions should be inadmissible in law unless it can be forced into one of the limited exceptions to the hearsay and opinion evidence rules, or that it should be admitted in practice only by concession of the court or counsel, or that it should be admissible where the custom is a generation-old (reputation evidence as in Milirrpum’s case), but inadmissible where the custom relied on is modern and possibly different. What is relevant in such cases is the customary laws of the community at the time the dispute or event occurred. 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. The deficiencies and uncertainties in the present law both as to expert and non-expert opinion evidence, outlined in this Chapter, should be remedied by a provision, along the lines of s 48 of the Indian Evidence Act and s 56 of the Nigerian Evidence Act. 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 that matter; or
would be likely to have such knowledge or experience if such laws existed.
It should also be provided that such evidence is admissible, notwithstanding that the question of Aboriginal customary laws is a fact in issue in the case. Such a provision would have advantages, apart from the basic one of rendering relevant Aboriginal evidence admissible:
it would deal with the problem of ‘experiential’ evidence given about Aboriginal traditions and customary laws by persons without formal academic qualifications but with long contact and experience with Aboriginal communities;
it would avoid any objection to evidence based on the ‘ultimate issue’ rule, the ‘common knowledge’ rule and the problem of opinions based in part on hearsay;
it may encourage counsel and courts to pay closer attention to proof of Aboriginal customary laws, rather than relying on less satisfactory assertions or generalisations.
On the other hand, such a provision would not make undesirable inroads into the laws of evidence so far as they provide a structure for legal proceedings. in particular, other discretions to exclude evidence (eg the court’s discretion to exclude prosecution evidence the prejudicial character of which outweighs its reliability) would be retained. Any more extensive provision, excluding the laws of evidence entirely in relation to the proof of Aboriginal customary laws or traditions, is accordingly unnecessary.