A new UQ report, launched by The Honourable Justice Margaret McMurdo AC, has found that there is no coherent system in place for proof or pleading of Indigenous customary law in Queensland and this forms a barrier for those relying on these laws in courts.
The report, Pleading and Proof of Indigenous Customary Law in Queensland Courts, has been authored by the Director of the TC Beirne School of Law’s Centre for Public and International Comparative Law, Associate Professor Jennifer Corrin.
Dr Corrin said the Report was the outcome of an 18-month investigation into how Indigenous customary law is proved in Queensland courts in civil and criminal cases and also the question of pleading in civil cases.
“The Report was undertaken because there is very limited information available on how Queensland courts deal with issues of proof and pleading of traditional laws and customs," she said.
"This can be an issue in a wide range of cases including criminal law defences, sentencing, succession, family law and heritage protection.
“The Report analyses relevant statutory provisions and court rules as well as pertinent case law; identifies the current issues; evaluates the current regime; highlights the hurdles raised by the State system when Indigenous customary law is raised in formal court proceedings; and discusses the options for reform.
"It also looks at other parts of Australia and the South Pacific.
“Our research has found that it is unclear how evidence of Indigenous customary law is to be presented and proved in the formal courts under the present regime.
"This is due to a dearth of explicit guidelines, case law, and empirical data on the issue.”
Dr Corrin said the Report did not in any way purport to speak for, or represent the views of, Indigenous Australians, but only to examine the position from a State law perspective.
“This Report deals with one area of disadvantage and it is hoped that it will stimulate interest in the issue of pleading and proof of Indigenous customary law and the broader issues arising from the interaction of Indigenous customary law and common law in Australia, as well as providing a platform for reform in this area.”
The report was undertaken with funding received from the Queensland Department of Justice and Attorney-General under the Legal Practitioner Interest on Trust Accounts Fund (LPITAF) which operates to assist Queenslanders’ access to the justice system.
Dr Corrin was assisted by two TC Beirne School of Law Bachelor of Laws students, Principal Research Assistant Ms Sarah-Jane Bennett and Assistant Research Assistant Ms Alison Chen.
The Report is available online at http://www.law.uq.edu.au/documents/cpicl/Pleading-and-Proof-of-Indigenous-Customary-Law.pdf
Media: Lynda Flower, 3365 2523
