19.1 This chapter discusses two questions concerning the evidence of Aboriginal or Torres Strait Islander (ATSI) witnesses.[1] The first is whether the uniform Evidence Acts should be amended to include a provision dealing specifically with the admissibility of evidence of ATSI traditional laws and customs.[2] The second is whether there should be a new form of privilege with respect to evidence that, if disclosed, would render an ATSI witness liable to punishment under traditional laws and customs. Other aspects of evidence law and practice applicable to ATSI witnesses are discussed elsewhere in this Report.[3]

[1] In this Report, and specifically in this chapter, the term ‘Aboriginal and Torres Strait Islander persons’ (or, if more appropriate, ‘Aboriginal or Torres Strait Islander persons’) is used to describe Australian indigenous persons. This term is consistent with advice received by the Commissions from Aboriginal and Torres Strait Islander persons and with the advice on the use of non-discriminatory and accurate language in New South Wales Department of Health, Communicating Positively: A Guide to Appropriate Aboriginal Terminology (2004), 9.

[2] The definition of ‘traditional laws and customs’ is discussed below.

[3] In particular, see Ch 5 in relation to the giving of evidence in narrative form.