Privilege and traditional laws and customs

19.106 In DP 69, comment was sought on the question whether the uniform Evidence Acts should be amended to allow courts to excuse a witness from answering a question which tends to incriminate the witness under his or her ATSI traditional laws and customs and, if so, on what basis and subject to what criteria.^[134]

19.107 One preliminary matter should be dealt with: what is here being considered is a new form of privilege, as distinct from a broad exemption from giving evidence per se. The distinction has been explained as follows:

This exemption [i.e. privilege] is one from the normal obligation of a citizen to provide the judicial arm of the state with the information and documents which are required for the determination of the litigation. The exemption is associated with but should be distinguished from the exemption accorded by the law to particular persons from the obligation to give any evidence at all in certain proceedings. This immunity from compellability or incompetence … attaches to a person by reason of that person’s status, for example as a spouse of an accused person. [Privilege] concerns the right of a party to refuse to disclose certain confidential communications to a tribunal or other person; not the right to refuse to attend before that tribunal and to give evidence whatsoever.^[135]

19.108 It should be noted that in Chapter 15, the Commissions recommend that the uniform Evidence Acts be amended to include a confidential professional relationships privilege. However, this privilege is unlikely to apply to evidence tending to incriminate a witness under his or her ATSI traditional laws and customs as the privilege requires, among other things, that there be a communication made in the course of a professional relationship.

Consideration of privilege in ALRC 31

19.109 A similar issue was addressed in ALRC 31, where there was consideration of whether an ATSI witness should be compelled to answer questions in court where the answer would disclose a past violation of ATSI traditional laws and customs which might bring ‘shame’ to the witness, or render the witness liable to some form of retaliation.^[136]

19.110 The ALRC stated in ALRC 31:

There have been instances of Aboriginal people seeking to avoid disclosing evidence on the grounds that it might ‘incriminate’ them under their customary laws. To refuse to extend the privilege to cover incrimination under customary laws would appear to deny the significance of customary laws in the lives of many Aborigines. To allow the privilege to be raised in matters of foreign law but not in matters of Aboriginal customary laws also seems unjustified.^[137]

19.111 The ALRC considered that a court should not compel an ATSI witness to answer questions tending to incriminate the witness under ATSI traditional laws and customs unless there are good reasons for so doing. However, it concluded that an absolute privilege, applicable in all cases, is not desirable because there are other ways of protecting confidential or secret information (including the proposal made in ALRC 26 for a confidential communications privilege).^[138]

19.112 The ALRC recommended:

The courts should be given power to excuse a witness from answering a question which tends to incriminate the witness under his or her customary laws. This power should be exercised unless the court finds that the desirability of admitting the evidence outweighs the likelihood of harm to the witness, to some other person concerned, or to the Aboriginal community itself.^[139]

19.113 The factors recommended to be taken into account in making a determination under the privilege provision were to include:

• the importance of the evidence to the proceeding;

• other ways of obtaining the information in question;

• the nature of the proceeding;

• whether the witness is a party to the proceeding; and

• the power of the court to prevent disclosure of the evidence in other ways.^[140]

Consideration of privilege in this Inquiry

Submissions and consultations

19.114 Submissions and consultations, taken as a whole, do not favour the establishment of 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.^[141] Various reasons were given as to why this approach would be inappropriate.

19.115 The Law Society of New South Wales agrees

that a court should not compel a witness to answer questions tending to incriminate the witness under Aboriginal and Torres Strait Islander customary laws unless there are good reasons for doing so…^[142]

19.116 However, it does ‘not favour an absolute privilege that would apply in all cases … because there are other ways of protecting confidential or secret information’.^[143]

19.117 Some submissions and consultations stress the importance of retaining, and indeed enhancing, the flexibility in the current approach. In the experience of a number of employees of the Cape York Land Council, current practice is flexible enough to accommodate the concern of an ATSI witness not to incriminate himself or herself under traditional laws and customs.^[144] The Northern Land Council also observes that, currently, courts and counsel do not force the issue if an ATSI witness states that he or she does not want to answer a particular question.^[145] The Office of the Solicitor-General for the Northern Territory makes a similar point, noting that a court could move into closed session, excluding men or women as appropriate to the relevant traditional law or custom.^[146]

19.118 Given that the current approach is operating effectively, it is submitted that there is no need for an amendment to create this new form of privilege which, in any case, would be difficult to define.^[147] It is also suggested that the establishment of such a privilege might have unintended consequences, such as making it more difficult to expose violence in ATSI communities.^[148]

19.119 Reference has also been made to the practice in foreign jurisdictions. For instance, in one United States court (with jurisdiction over people from the Navajo Nation), a judge can speak informally with a native American witness, prior to this witness giving evidence, about problems which may arise from the giving of such evidence because of the witness’ customary or traditional law.^[149]

The Commissions’ view

19.120 The Commissions believe that two critical and interrelated questions arise in relation to the mooted new form of privilege.

(i) What is the essential nature of the mischief which is sought to be addressed?

(ii) Does a statutory amendment to the uniform Evidence Acts creating a new form of privilege constitute the best means of addressing this threat without unintended adverse consequences?

19.121 In relation to question (i), the nature of the potential mischief seems clear. In ALRC 31, the ALRC expressed concern about an ATSI witness being compelled to give evidence if, in so doing, this person risks incriminating himself or herself under ATSI traditional laws and customs.^[150] This concern is echoed in a number of the submissions and consultations.^[151]

19.122 The Commissions are of the view that this accurately describes the nature of the potential mischief. Moreover, the Commissions believe that it is highly undesirable that this mischief, which is here expressed as a hypothetical, eventualise. For an ATSI witness, such an eventuality would be harmful and unfair. Also, for the criminal justice system more generally, there are also strong policy grounds in favour of avoiding this situation.^[152] That is, it is likely that the risk of this occurring would discourage ATSI witnesses from giving evidence in the first place.^[153]

19.123 Question (ii) asks a practical question: whether a new form of privilege is likely to be the best means to address the threat identified. As earlier noted, in 1986, the ALRC recommended that courts be given the power to excuse a witness from answering a question which ‘tends to incriminate the witness under his or her customary laws’, but the decision was made notto recommend the establishment of an absolute privilege.^[154]

19.124 Consistent with the view expressed in ALRC 31, the Commissions do not recommend the establishment of a new form of privilege. However, the Commissions do not now see the need, which was perceived by the ALRC in 1986,^[155] to grant an additional, specific power to the courts (which, as earlier explained, would be in the nature of a privilege) to excuse an ATSI witness from answering a question which may incriminate him or her under his or her traditional laws and customs.

19.125 A number of the consultations and submissions highlight that the courts currently deal adequately with the issue. The Commissions agree that this is the case. Judicial officers possess the power under each court’s inherent jurisdiction to obviate the risk of ATSI witnesses incriminating themselves under traditional law or custom.^[156] It appears that judicial officers are exercising that power.^[157]

19.126 Moreover, the methods available to judicial officers—such as closing the court to men in respect of material which, for reasons of traditional law or custom, should only be seen by women (or vice versa); or, modifying the mode of questioning—are adaptable to the exigencies of the particular situation.^[158] In contrast, privilege is a blunt instrument which operates to preclude the admission of evidence which, if appropriate safeguards are engaged to protect an ATSI witness from this form of self-incrimination, ought rightly to be admitted because it is probative and reliable.^[159]

19.127 A further reason against legislating to create a new form of privilege is that it may disadvantage the very people which the amendment is intended to protect. That is, if the privilege is created, it seems likely that there will be greater pressure on ATSI witnesses to avail themselves of the privilege or not to give evidence on the particular matter.^[160] However, such evidence can (and often is) useful to the case of an ATSI witness who is also a litigant or a criminal defendant.^[161] Particularly given that submissions and consultations have not disclosed strong support for the creation of a new form of privilege, and that they have in fact shown that there are cogent reasons against adopting such a privilege, it may cause new problems to put an ATSI witness in a position where, if he or she does claim the privilege, he or she may be unable to adduce the evidence at all.

19.128 For these reasons, the Commissions do not recommend that the uniform Evidence Acts be amended to create a new form of privilege which would excuse an ATSI witness from answering a question which tends to incriminate the witness under his or her traditional laws or customs.