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Clause 72

provides an exception to the hearsay rule for evidence of a representation about the existence or non-existence, or the content, of the traditional laws and customs of an Aboriginal or Torres Strait Islander group. This exception is in accordance with the 2005 LRCs' Report (recommendation 19-1). It found that the UEAs should be amended to make the hearsay rule more responsive to Aboriginal and Torres Strait Islander oral tradition. The laws of evidence have treated information passed on orally as a second class form of knowledge. In Australian Indigenous societies, the value given to information about traditional law and custom passed on via oral tradition is determined by considering factors such as the actual transmission, the source of the information, and the person to whom it has been passed. This clause does not treat orally transmitted evidence of traditional law and custom as prima facie inadmissible, as this is the form by which law and custom are maintained under Indigenous traditions. The intention of this clause is to make it easier for evidence of traditional law and customs to be adduced where relevant and appropriate. The exception shifts the focus away from whether there is a technical breach of the hearsay rule, to whether the particular evidence is reliable. Factors relevant to reliability or weight will include the source of the representation, the persons to whom it has been transmitted, and the circumstances in which it was transmitted. The requirements of relevance in clauses 55 and 56 may operate to exclude representations which do not have sufficient indications of reliability. Reliability can be enhanced through use of judicial powers to control proceedings, to create a culturally appropriate context for the giving of evidence regarding the existence or content of particular traditional laws and customs. The Note to clause 72 refers to the exception for contemporaneous statements about a person's health in clause 66A.