643. Problems in Taking Aboriginal Evidence. Quite apart from the technical legal difficulties created by the rules of evidence for proof of Aboriginal customary laws, which were discussed in Chapter 24, the giving of evidence about their customary laws can raise particular sensitivities for Aboriginal people. These may be due to considerations of secrecy, or to customary rules prescribing who may be permitted to speak for what, and to whom, on a particular matter. These rules may apply in subtle and complex ways, depending very much on the context, the identity and status of those involved, and the surrounding circumstances.[731] The Aboriginal Land Commissioner, Justice Maurice, has described the relevance of secrecy in the following terms:

... [O]nly some will have been admitted to information concerning the mythology of a particular site, and then possibly, only to part of it. The possession of such information brings with it esteem, power and influence and is therefore sought after, but it can only be achieved by degrees over a long period of time, and in seemingly undefinable ways involving some sort of group acceptance. To acknowledge having information of this kind without being recognised as entitled to it may lead to the imposition of extreme sanctions. And, whilst being entitled to have knowledge according to such systems is one thing, having the right to tell others is quite another. Those who possess and control the flow about Aboriginal mythology control the country and in particular, control the ability of people to move about it freely and to exploit its natural resources.[732]

Not all the problems of secrecy can be overcome by legislative means. Primarily they require the careful selection of witnesses, flexibility in court procedures, and care in the way evidence is received. Nonetheless, it is necessary to examine some of the difficulties that the giving of evidence may present for Aborigines, to see if better ways can be found for dealing with these issues. Five areas of difficulty are discussed in this Chapter:

  • authority to speak (para 644-645);
  • group evidence (para 646-648);
  • secrecy (para 649-656);
  • privileged communications (para 657-661);
  • self-incrimination under Aboriginal customary laws (para 662-665).