Indigenous Oral History and the Australian Justice System: Nothing But the Truth? |
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Sue Anderson Nevertheless, the Australian judicial system is increasingly privileging the written record over the oral, particularly in cases involving Indigenous peoples, for whom the transcribing of oral testimony into written form is doubly problematic. Some legists even forecast that technological changes will see an end to the courtroom process and oral evidence altogether. By means of a discussion of the authority of the written over the spoken word in the court system and an analysis of the failings of the legal process in this regard for Indigenous people I will argue that current and developing mores serve to perpetuate, and indeed further, unequal power relations within the justice system in this country. Written versus Oral While it is now widely accepted in academia that written records are highly value laden and cannot represent an 'uncontestable historical truth' (Curthoys 1997: 8), and oral histories have gained status in academia as an equally reliable record, past notions of their illegitimacy due to their perception as fallible, unscientific sentimental mythology as opposed to the perception of written records as scientific and objective have prevailed elsewhere, particularly within the Australian legal system. Oral accounts have been regarded with disfavour by some anthropologists and social scientists, as well as some historians. They were often assumed to lack empirical status, and concern was expressed about the selectivity and colouring of memory as a limitation on the 'truthfulness' of oral accounts (Gray 1998: 254).This despite the notion of the fallibility of oral history having been successfully challenged by oral historians over the last 30 years or so (2). In fact, if 'much documentary evidence is oral evidence which has been committed to paper at a particular point in time' (Lummis 1987: 12), then literature can be seen as doubly unreliable as subject to the inaccuracies of the initial account and the biases of the interpreter. Indeed, for some, oral history 'is a method which has … cut history loose from the tyranny of the document and the institutions which generate them' (Lummis 1987: 141). Many accounts can also be found which support the notion of oral and written evidence standing in binary opposition (Nicholls 1996: 60-62), which by definition necessitates the privileging of one mode over another (Grosz 1994: 3). This 'reinforces the consistent privileging of literate modes of social, cultural and religious thinking and knowledge transmission' (Nicholls 1996: 59) of the dominant culture. This has all fostered patronising views of Indigenous orality. Indeed the English word 'Dreaming' devised by the anthropologist Stanner in the 1950s and now firmly entrenched in the lexicon, implies that Indigenous cultural stories are less significant than other religious parables and therefore lack validity. Coupled with the 'blanket stereotype of Aboriginal cultures as “oral” and non-Aboriginal culture in Australia as “literate”' (Gray 1998: 249), these views have served to maintain unequal power relations within the justice system. Converting the oral to text In more 'traditional' Indigenous societies oral history acts as a vital means of maintaining social structure and connection to land, as part of a holistic, non-linear world view. The historicity of the oral tradition for Indigenous peoples has long been recognised (e.g. Rose 1991). However, in more 'urban' communities, oral history is an important means of maintaining cultural and personal identity and the preservation of the oral expression is the means by which this is achieved (Huggins1998: 122). That the verbal transmission of culture is vitally important to Indigenous community cohesion is drawn out by Carmody: The personal contact needed to transmit values, philosophy, etc. [is] an essential component in drawing people together. Dead documentation on library shelves negates this vital personal aspect of community cohesion. In light of this, should Aboriginal oral history be written down? Aboriginal people had control of the data which, since colonization, has been taken out of their hands by researchers, interpreted (sometimes erroneously), and deposited on library shelves (1987: 5).Coombe agrees: 'There is a colonial cognitive inertia inherent in transforming oral data into eurocentric academic documentation'(1987: 4)(3). Further, 'transformation of oral texts and utterances into written texts [is] a means of legitimation that appropriates Aboriginal agency to articulate culture' (Coombe cited in Nicholls 1996: 70). The impact for Indigenous peoples of converting the oral record to text is coming to be recognised by some members of the legal system. For Justice Peter Gray, 'the transformation of an oral history into a text impacts on the usual processes of change and continuity evident in oral cultures' (1998: 264). However, this should be seen in the context of how the legal system has affected Indigenous court representation. Implications for the courts The introduction of the Commonwealth Native Title Act in 1994, following the High Court's decision in Mabo v State of Queensland [no.2] in 1992, brought to light some crucial barriers to justice for Aboriginal and Torres Strait Islander peoples within the Australian legal system directly related to the privileging of the written word over the spoken. While it has long been recognised that Indigenous legal systems differ from western systems and that these systems have co-existed, they had not been recognised under Australian law until Native Title legislation effectively 'made this nation officially a legally pluralist one' (Gray 1998: 249), by recognising Indigenous law with regard to land tenure and possibly in other ways as well (4) However this legal pluralism is anomalous, because it does not extend fully to Indigenous law, as non-Indigenous law can withdraw recognition of Indigenous entitlements, which continue to exist (Gray 1998: 249). Legal pluralism remains hierarchical (Rose 1996: 25). In arguing the case for the recognition of Indigenous law in 1983, Justice Michael Kirby predicted some implications for accepting a dual legal system and ways in which this could be problematic for Indigenous peoples, such as the unacceptability of corporeal punishments under the western system and the changing nature of traditional law (Kirby 1983: 124-6; Rose 1996: 4). Indigenous legal systems differ from western systems because they are not separate codes, but part of a social process which includes connection to country, and because they operate at a local level and therefore encompass differing local processes, do not represent a homogenous system. As a result of this, legal pluralism has the potential for further colonisation in the guise of ethical sensitivity (Rose 1996: 5)(5). Today in addition, because of a lack of understanding of Indigenous law, under Native Title Indigenous people are required to prove their entitlement to land tenure by means of evidence of continuing occupation, and this must be done in accordance with non-Indigenous law. For Gray, this leads to a 'clash between Indigenous and non-Indigenous modes of proof', predominantly because Indigenous legal systems value the spoken word, while the non-Indigenous system privileges written documentation (Gray 1998: 248-9). Case studies Case studies can illuminate how oral history is paradoxical, undervalued and indeed, used to discredit Indigenous evidence. In her exposé of the privileging of literature in the 1995 Hindmarsh Island Bridge Royal Commission, Christine Nicholls (1996) shows how this devaluation of Indigenous orality – and indeed the oral accounts of the less powerful in society generally – can be manipulated to serve political or economic ends (6). Orality was central to this case in a number of different ways. Firstly the cultural claims of the proponent Ngarrindjeri women were based on an inherited oral transmission; secondly, the material corroboration for this evidence was in the form of historic oral history recordings (by Ngarrindjeri women); and thirdly there was an absence of written evidence (by non-Indigenous anthropologists) to support the claims. For Nicholls: Such ways of thinking [valuing literature over orality] have become deeply embedded in most western discourse and permeate hegemonic western cultural practice to such an extent that for the most part the underlying premises remain unquestioned and are regarded as unproblematic. In short these ways of thinking about orality and literacy appear so 'natural' that the ethnocentrism on which they are founded has become masked (1996: 63).While according to Nicholls 'the orality/literacy nexus has been the largely invisible paradigm on which this case has hinged'(1996: 66), what her account shows is that the binary has insidiously worked to promote non-Indigenous interests at the expense of Indigenous culture. What is also alarming in this case is the way in which Indigenous oral evidence was dismissed, while at the same time circumstantial, non-Indigenous evidence was accepted unquestioningly. As Nicholls points out, evidence of a conversation overheard at a social gathering by an anonymous witness was given the status of truth while 'orally-conveyed religious or cultural knowledge' was determined to have been fabricated. Clearly, oral evidence can be weighted according to culture (7). The impact of privileging the written over the oral in the legal system is also striking in the case of compensation cases brought by Indigenous individuals against the state or institutions for having been removed from their families. For example, in the case of Cubillo v Commonwealth (FCA 1084 August 2000), a thumb-print signature by Peter Gunner's non-English speaking mother on a complex consent-to-release form was held to constitute primary evidence for her sanction of his removal by the authorities to St Mary's Hostel in Alice Springs. J. O'Loughlin's decision in this case 'placed heavy reliance on the documentary record', because it was: not affected by the vicissitudes of human memory. … However, the judgment has been criticised for its lack of sensitivity to the possibility that the written word may have failed to record accurately Aboriginal perspectives on these events (Melbourne University Law Review)(8).On the other hand, although his oral testimony had been recorded some time beforehand by a fellow Indigenous resident of the Home for a social history project aiming to reveal the pain and hardship suffered, Gunner's recording was selectively accessed in order to advance the case that his upbringing in the Home was a happy one. As a result, the case was dismissed and no similar compensation case has yet been successful. Is there a future for orality? Written records are seen to be gaining status in native title claims and, for some, will continue to do so (Finlayson 1997: 6; Sutton 1994: 21). This seems to be because the courts are forced to accept oral evidence from claimants, but refuse to allow it to stand alone. As a result, a claim book is needed (to record evidence in writing) along with documentation to corroborate the oral testimonies or to provide genealogies beyond three generations. This essentially makes the oral evidence redundant - if the oral evidence 'is accepted as authentic only when confirmed by documentary sources then one might as well use the documents' (Lummis 1987: 155). This is patronising for Indigenous individuals and communities, and it negates Indigenous oral evidence. Yet the trend towards literacy shows no sign of decreasing. On the contrary, in the adversary system generally, technological changes which 'give the freedom and the ability to produce, amend and analyse written materials at high speed' are further promoting the status of literacy over orality (Glasser 1993: 324). This is despite the fact that the principle of orality has traditionally dominated the judicial process – after all, witnesses are required to swear to tell the truth and to speak to the court. Further, due to the increasing prominence of literary evidence combined with the ability of technology to further the cause, some argue that while '[a] continuous trial with an oral judgment delivered at its conclusion is still standard practice' (Glasser 1993: 315-6) these developments could nevertheless lead to courtroom trials becoming obsolete (Glasser 1993: 324). While it seems that such a proposition, if it does in fact eventuate, is yet a long way off, this is a frightening possibility for Indigenous participants, whose voices could become all but silenced. Conclusion It is clear that the Australian justice system is falling far short of the standards of impartiality to which it would aspire. Although some aspects of Indigenous law are now recognised, it can be seen that native title and other areas of justice remain subject to the processes of the dominant culture, which can insidiously work to undermine and devalue Indigenous perspectives. This can be illuminated through a critique of individual cases such as the Royal Commission into the Hindmarsh Island Bridge and compensation cases such as Cubillo v Commonwealth. While jurisprudence continues to ignore the biases inherent in privileging the written over the oral record and increasingly marginalises oral evidence, the rights to justice of Indigenous peoples will continue to be eroded. This issue needs to be urgently addressed. References
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