SA ‘playing catch-up’ to change laws stopping Aboriginal people giving cultural evidence

The South Australian government will seek to remove legal barriers that prevent Aboriginal people giving evidence about their own traditions and customs in court.

Khatija Thomas from the Aboriginal Legal Rights Movement said the change was needed to bring South Australia into line with the rest of the country.

“We’ve been pushing for these changes to be brought to the Evidence Act,” she said.

“Aboriginal people haven’t been able to have their own stories admitted directly into the court. They’ve had to rely on anthropologists or archaeologists to present that information.

“A lot of Aboriginal people have rightly found that quite insulting to their traditional knowledge, [the] ability to be heard and to be recognised as the holders of that knowledge.”

Ms Thomas pointed to traditional hunting and fishing as a primary example.

“Aboriginal people have been charged with offences, such as poaching, but we should be able to practice those rights in a way that is small-scale, or even on a scale that’s about feeding our families,” she said.

A common law issue

South Australian Law Society president James Marsh said changes to hearsay and opinion laws in relation to Aboriginal traditions would help resolve the odd paradox.

“It’s something we’ve been advocating for since at least 2021,” he said.

“Changes were made at the Commonwealth level in 2008, so we’re playing a little bit of catch-up here in South Australia, but it’s good to be getting there at last.

“A judge would still have to assess whether the evidence is reliable and would not be bound to accept it, but at least the evidence gets submitted in the first place.”

Legal cultural consultant and Nadjuri-Narrunga woman Pat Waria-Read said it was important for magistrates to know the cultural background of Aboriginal people appearing before court.

“We’re not all the same, we’re all different clans, we’ve all got our own special certainties in our culture,” she said.

“This change gives the magistrate a chance to listen to and respect the person that sits in the court and enhance their idea about how we should talk about a sentence.”

Change expected by year’s end

State Attorney-General and Aboriginal Affairs Minister Kyam Maher said the SA government would introduce legislation to allow cultural evidence to be given by Indigenous people by the end of the year.

“It’s important to hear directly from people whose traditions and customs have been passed down, often verbally, over thousands of generations,” he said.

“Aboriginal people should be regarded as the experts in their own customs and traditions.

“It is out for consultation now with a broad section of the legal profession and also the courts, and we’re hoping to have this bill before parliament to be considered during the course of this year.”