Compelling evidence: Marriage, colonialism and the question of Indigenous rights

In 1986 the Australian Law Reform Commission found that Aboriginal spouses who married traditionally were compellable witnesses against each other in criminal trials, despite the privileging of spouses as non-compellable within the common law. The basis of this was that they were not recognised as husbands and wives according to the laws of evidence. The Commission argued that failure to extend the common law rule of inter-spousal non-compellability to traditional spouses gave the impression that the law cared only about the stability of Marriage Act (1961) marriages, despite the continuing importance of traditional marriages. This article traces a debate about the compellability of Aboriginal spouses (wives) back to 1930s and 40s Australia. Seeing this as symptomatic of the legal injustices faced by Indigenous people, humanitarians and white women reformers were calling for human rights and legal equality. Now, the Law Reform Commission is arguing that the way to ensure this is to first recognise customary law. Then, reformers came up against a bureaucracy and legal fraternity prepared to recognise neither Indigenous customary law, Indigenous women's legal equality nor human rights.