Bill to recognise Aboriginal people as experts on traditional laws and customs

A legal system rule that’s been criticised for shutting Aboriginal experts out of cases unless they have specific qualifications would be removed under the change.

Legal Policy and Advocacy Officer at Aboriginal Legal Rights Movement, Khatija Thomas outside Adelaide Magistrates Court. Khatija has been advocating for a State Governm. Picture NCA NewsWire / Emma Brasier

Aboriginal people will be able to present traditional customs and lores as judicial evidence under changes to the state’s legal system.

The Evidence (Aboriginal Traditional Laws and Customs) Amendment Bill will be introduced to parliament this year to override current legislation which denies First Nations people the right to give expert evidence about their customs unless they hold a degree or similar qualifications.

Legal policy and advocacy officer at the Aboriginal Legal Rights Movement (ALRM), Khatija Thomas, has been advocating for the legislative change since February 2021.

Ms Thomas said the proposed amendment would create a fairer playing field for Aboriginal people.

“For Aboriginal people, it allows them to be heard in their own right,” she said.

“In the practical sense, it makes it a much clearer exercise for judges to include Aboriginal people talking about their own laws and customs.

Aboriginal Affairs and Attorney-General Minister Kyam Maher Pic Roy VanDerVegt

“They don’t need to have anthropologists present information about them, which is a really important part of empowering Aboriginal people and recognising our culture.”

The proposed amendment would also allow Aboriginal people to give customary evidence on matters of heritage, child protection, hunting and fishing practices and all other matters where traditional knowledge and customs apply.

Attorney General Kyam Maher said it was “vital” for such evidence to be legally taken into account by magistrates and judges because it was knowledge passed down for “thousands of generations.”

“Our legal system should recognise Aboriginal people as the true experts in their culture,” he said.

“Oral storytelling and histories are a vital part of Aboriginal culture and have been for thousands of generations.

“Evidence on such matters could presently only be presented by an anthropologist or similarly qualified and often non-Aboriginal expert.”

Mr Maher is drafting a Bill to change common law hearsay and opinion rules in SA’s Evidence Act 1929.

The current rules mean evidence about Aboriginal culture, knowledge and practices which have been passed down verbally by elders are inadmissable in court.

The government is also consulting with SA Police, the Crown Solicitor’s Office, the SA Bar Association, the Office of the Director of Public Prosecutions and ALRM about the changes.

Klynton Wanganeen outside court after he spoke on behalf of five men charged with poaching more than 30 times the legal amount of abalone worth almost $25k.

Narungga Nation Aboriginal Corporation chief executive Klynton Wanganeen has previously been called to give evidence on behalf of members from his community.

“On a number of occasions when I’ve given evidence for young (Narungga) people who were charged with breaching the Fisheries Act, I was not allowed to be called an expert in Narungga fishing,” he said.

“But the anthropologist who found out about Narungga fishing practices from myself and other Narungga elders was allowed to be called an expert.

“I found that absurd and ridiculous.”

Mr Maher said the government will be considering feedback from consultations with stakeholders before preparing the Bill that will be introduced to parliament.