The Uniform Evidence Act and First Nation People

THE UNIFORM EVIDENCE ACT AND FIRST NATION PEOPLE
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Introduction
Australian Common Law offers privileges to witness to prevent instances of self-
incrimination. These privileges ensure that a witness decide on the questions that they want to
answer, or related documentation that they can produce before a jury. The power that is
offered to a witness comes in when evidence that is being sought might expose the welfare of
the witness to risk. The privileges cover three specific rights of witnesses. These include;
privilege from self-incrimination in criminal cases, rights from self-incrimination that may
lead to administrative or civil fines (this encompasses penalties of a monetary nature that may
be instituted by the judiciary but not damages that accrue from private legal proceedings)
Finally, there is also protection from self-incrimination that may limit of the basic rights of a
person (This is less often invoked)1.
Therefore, the main difference that exists between the Uniform Evidence Acts and the
Australian Common Law is the manner in which the privilege against self-incrimination
statutes are applied. Under Common Law, the right against self-incrimination provides a
witness with absolute power. However, under the Uniform Evidence Laws, the Privilege
Against Self-Incrimination is dependent on various factors as determined by the court. Hence,
the witness may be compelled to attest2. Section 128(5) of the Uniform Evidence Act
articulates that the court may consider sensible reasons for allowing a witness to remain
silent3. This occurs where the evidence may act as an incriminating tool against the witness,
the evidence doesn’t associate the witness to the purported crime, and where the jury doesn’t
need confession from the witness to prove a case. Outside the definition of this guidelines, a
witness can be compelled to attest to a crime although a certificate will be provided for
protection. This offers the witness with direct or derivative immunity. Where the court denies
the right to claim privilege under the Uniform Evidence Act, but latter finds out that the
welfare of the witness might have been put to risk, it is necessary that a certificate is offered
immediately4. However, this doesn’t apply to defendants associated with criminal
1 D.Manderson. Not yet: Aboriginal people and the deferral of the rule of law. (Arena Journal.
2008)29.
2 MB Powell MB. PRIDE: The essential elements of a forensic interview with an Aboriginal person.
(Australian Psychologist 2000)186.
3 Kastigar v. United States, 406 U.S. 441, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972).
4 C.Dauvergne Making people illegal. InMigrants and Rights (Routledge 2017) 94

proceedings, where the evidence that is offered pertains to actions that were undertaken by
the person being charged. S128 of uniform evidence denies the privilege against self-
incrimination to corporations5.
What Justice implies to the Aboriginal persons
The aboriginal community have a varied point of view in regards to justice. The society
usually tries to take control of criminal activities. Mitigation of unwarranted behavior is
achieved through apprehension, interdiction, and enforcement. Emphasis is generally placed
on punishment of characters that have chosen to pursue deviant ways. This is seen as a way
of ensuring that a criminal is able to conforms, while protecting the interests of the other
society members. The aboriginals, on the other hand, view and use the justice system as a
way of establishing peace and achieving balance in their community. Therefore, the
Aboriginals use justice as a way reconciling the wrongdoer to their personal conscience and
to those who have been erred6.
This is a major differentiating factor that creates conflict when guidelines under the Uniform
Evidence Act are applied as they are on the Aboriginal community. Aboriginal Statutes have
been there since time in memorial, and the same continue to exist even in today’s society.
The Aboriginal Legislature has the power to make laws and enforce statutes of the
constitution7. Therefore, determining instances where first nation witnesses have to be forced
to provide evidence as outlined under the Uniform Evidence Acts put this group of persons in
conflict with their customary laws and leads to instances of self-incrimination. Extending the
privilege against self-incrimination under the Uniform Evidence Act would be essential in
upholding the liberty of the community8. However, when the need of extending personal
privileges is weighed against the importance of conducting investigations and availing
justice, it becomes evident that the Uniform Evidence Act should be left unchanged.
5 Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964).
6 D.Eades. The politics of misunderstanding in the legal system: Aboriginal English speakers in
Queensland. (Routledge 2014) 207.
7 J.Allen J. 12 Evidence and silence: feminism and the limits of history. (Feminist Challenges:
social and political theory 2013)173.
8 MH McHugh. Does Chapter III of the Constitution protect substantive as well as procedural rights?.
(Bar News: The Journal of the NSW Bar Association. 2001)34.