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by Mary Fisher
Secrecy, Proof & Confidentiality of Aboriginal Customary Laws in the Legal System
The Australian Law Reform Commission's proposals for the recognition of Aboriginal Customary Laws, if adopted, will mean that aspects of Aboriginal customary laws, will be required to be proved before the Courts.[1]
An argument frequently raised against recognition of Aboriginal customary laws is the problem of maintaining secrecy in such circumstances. Apart from the damage that such disclosure may cause, a breach of secrecy may result in the imposition of customary law sanctions. Moreover for Aboriginal people to even acknowledge having certain information to which they are not entitled may lead to further punitive action.
The importance of secrecy is one reason why codification should be rejected as a means of recognising customary law. Codification entails the risk of Aboriginal people losing control over their laws and the possible unwarranted exposure of secret material. However, where a matter comes before a court, the court can only act on information that can be communicated to it and tested by the parties. Thus there will be circumstances in which Aboriginal people will need to choose whether to disclose secret material to the courts as the price of seeking the benefit or protection of the general law.
In almost every land claim heard to date Aboriginal people have chosen to present secret material to the Aboriginal Land Commissioner in the form of oral evidence, the performance of ceremonies and the relevation of objects and sites of significance. Procedures have been adopted by the Land Commissioner to ensure that such evidence is received on a restricted basis.[2] For example, certain evidence has been given only in the presence of women.[3] In other circumstances the Land Commissioner has received evidence alone and prohibited access to all participants including the other party. The rules of natural justice require that this last step only be taken in exceptional circumstances.[4]
To exclude a party ... it must appear that exclusion of the party is essential to preserve the properconfidentiality of the information needed to determine the application. It is necessary to show the information is of such importance and cogency that justice is more likely to be done by receiving the information in confidence and denying the party access to it, than by refusing an orderto exclude the party. This criterion is not easily satisfied but it is possible to do so.[5]
In the Warumungu Land Claim, the Commissioner declined to exclude counsel for the objectors (the Northern Territory Administration) from hearing arguments about the disclosure of secret material, and ordered disclosure under strict conditions as to its confidentiality.[6]
Problems of secrecy are by no means confined to land claims, and judicial experience suggests that secrecy can to a large extent, be preserved through the exercise of existing powers, including the power to regulatejudicial procedure, to hear evidence in camera, to allow the production of evidence on a restricted basis and to grant protective orders, including orders suppressing publication of proceedings. The courts inherent discretionary powers have been reinforced by statutory provisions.[7] A number of examples could be given of the court's sensitivity in customary law cases. For example in R v Williams[8] and R v Gudabi[9], women were excluded from the court and an all male jury was empanelled (with the prosecution's consent). In other cases, the suppression of all evidence has been ordered, the matter proceeding with the consent of the prosecution, by way of affidavit. It is desirable that there be legislation confirming these powers to ensure that they extend to protect secret customary law matters and to provide for their exercise on application by a party rather than by consent.
Existing powers enable evidence communicated by Aboriginal informants to, for example, anthropologists, linguists, and land councils, to be presented to the courts on a protected basis, with the consent of the Aboriginal informant. A party opposing may however seek to subpoena such material. This may lead to the disclosure of confidential material against the wishes of the Aboriginal informant and against the wishes of the person to whom the information was communicated. The issue arose in the Warumungu Land Claim, where public interest immunity, legal professional privilege, and breach of confidentiality were raised as objections to disclosure of materials prepared by anthropologists and linguists in the course of preparation of the land claim.
Claims to public interest immunity in respect of materials gathered for the Sacred Sites Protection Authority were rejected by the Land Commissioner, Justice Maurice, on the basis that while there may be public interest in the effective performance of the Sacred Sites Protection Authority, no parallel could be drawn between the case before him and those categories of public interest generally recognised as attracting Crown privilege. Furthermore, it was considered inappropriate to extend the categories of public interest to cover the material in question. Justice Maurice held that where Aboriginal people sought protection of the Northern Territory Land Rights (Northern Territory) Act 1976, (Cth) they must be prepared to reveal information necessary to bring themselves with the Act.[10] It is difficult to conceive of circumstances in which the public interest privilege could be successfully invoked in a cose involving aspects of Aboriginal Customary law.[11]
The Land Commissioner held however, that certain documents were protected from disclosure by legal professional privilege. These included the claim book and drafts of claim books, which are to be regarded as draft pleadings; anthropological and other notes prepared for the purpose of legal proceedings although the documents may be in the hands of third parties;[12] copies of field work done for the Sacred Sites Protection Authority for other purposes, provided the copies themselves are made for the purposes of preparing the land claim.[13] At the same time a broad doctrine of waiver was applied[14] which, while prompted by notions of fairness, also raises questions of the appropriateness of the use of waiver to counteract the perceived failure of the adversary process in the land claim procedure.
The Land Commissioner recognised the importance of maintaining confidentiality of information relating to secret, sacred matters[15] disclosed by Aborigines, on a confidential basis. However any discretion he may possess to exclude the evidence on the basis of confidentiality was considered to be overridden by the public interest in ensuring proper testing of land claims and the difficulties faced by objectors and counsel assisting the Commissioner to gain access to information with which to test the claims of the Central Land Council and experts employed by the Council.[16]
The decision to require disclosure has caused concern among anthropologists and others involved in the preparation of the land claim, not withstanding the undertakings given to ensure that the disclosure takes place on a restricted basis.
A recent resolution passed by a meeting of the Australian Anthropologists Society in Darwin said the following: AAS regards the confidentiality of the relationship between the anthropologist and the informant as essential to anthropological research and considers it to be in the best public interest that such relationship be afforded any appropriate legal protection.
It has been argued that it is difficult to ensure the confidentiality of the disclosed material and that in future Aboriginal people will be reluctant to confide in anthropologists and others. It is difficult to predict the extent to which these fears are justified. The decision highlights the fact that, albeit that in certain limited circumstances anthropologists and informants may be able to bring themselves with the scope of the privilege, the category of absolute professional privilege does not extend to anthropologist/informant communications. The Australian Law Reform Commission in its Interim Evidence Report has rejected the creation of new categories of privilege[17] to cover anthropologists/informant communicants preferring instead to o give the Courts a broad discretion to exclude evidence of confidential communications.[18] This approach is to be preferred. Any extension of absolute privilege to anthropologists is undesirable given that there would be no reason to limit the privilege to anthropologists as it could be extended to community advisors, linguists and others. There would then be reason to create separate categories for priest/ penitent and doctor/patient communications. It is undesirable to extend the categories of absolute privilege in this manner. However a discretion to exclude confidential communications would appear to be justified. However a discretion to exclude confidential communications would appear to be justified. Before exercising its discretion the court should be required to weigh up the importance of the evidence, the nature of the proceedings, the degree to which secrecy could be protected against the likelihood of harm to the informant, the Aboriginal community concerned, and to the confidential relationship. Such a provision should apply to courts and to other tribunals having the power to take evidence, including the Aboriginal Land Commissioner under the Aboriginal Land Rights (NT) Act. It should apply in conjunction with the exercise of the courts powers to protect disclosure already mentioned.
An aboriginal witness may be reluctant to respond to questions incourt on the ground that their answer might tend to show that he had, in the past, violated Aboriginal customary laws and as a consequence may be liable to some form of punishment. It is unclear whether the common law privilege against self-incrimination would extend to cover this situation by analogy with the privilege of self-incrimination against foreign law. It may be that the position should be clarified to allow a witness to be excused from answering a question which would tend to incriminate them under their customary laws.
Diane Bell has compiled a document which is a resource bibliography dealing with issues of law, ethics and professional practice in Australia and North America.
Diane Bell is a consulting anthropologist and Research Fellow at the Australian National University. The document was originally prepared for those involved in the Warumungu Land Claim (she is working for the Central Land Council) brought under the Aboriginal Land Rights (NT) Act, 1976 and those researchers served subpoenas who were giving evidence before the Aboriginal Land Commissioner Mr Justice Murice.
Copies of the bilbiography are available from the Aboriginal Law Research Unit, Faculty of Law, UNSW, PO Box 1, Kensington, NSW 2033 or telephone (02) 697-2256.
[1] The Commissions Report to the Federal Government is due early next year.
[2] G. Neate,'Keeping Secrets Secret' (1982) 5 ALD 1, 17, Justice Toohey,'Land Claims' (1982) 3 AboriginalLB 4. See 'Undertakings made by Attorney-General on inspecting documents ordered to be disclosed', in the Warumungu Land Clam.
[3] Daly River (Malak Malak) Land Claim, AGPS 1982, 88.
[4] Re Pochi and Minister for Immigration and Ethnic Affairs, [1979] AATA 64; (1979) 2 ALD 33, 54.
[5] Id, 56.
[6] Reasons for Decision, 16 July 1985,1 October 1985. And see generally N. Andrews,'Documents Issue in Warumungu Land Claim', Central Land Council. Alice Springs, November 1985.
[7] For example Justices Act (NSW) 1902,2 32; Justices Ordinance (NT) 1928, s 107.
[9] Unreported, NTSupreme Court, see No. 85of 1982, reported on another point on appeal [1938] ArgusLawRp 53; (1982) 44 ALR 424.
[10] Reasons for Decision, 1 October 1985, 100, 106.
[11] For the Law Reform Commission's proposals, see ALRC 26, Evidence Interim Report, vol 1, pare 120.451, Draft Evidence Bill 109-13.
[12] Reasons forDecision, 1 October 1985.22-30. 51, 158.
[13] Though original field work prepared for the Sacred Sites Protection Authority prepared for other purposes. For example the development or the Australian National Railway was not considered priviliged, Ibid.
[14] Id, 52-73.v
[15] Id 75.
[16] Id 75-8.107-8,148-9.
[17] ALRC 26. Evidence Interim Report, vol 1. para 955, 956.
[18] Id, Draft Evidence Bill, cl 103.
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