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Wednesday, 18 June 2008
Page: 5188


Mr PYNE (1:37 PM) —I am pleased to speak on the Evidence Amendment Bill 2008 in the House today, representing Senator George Brandis SC, our esteemed colleague in the other place, who is responsible for the carriage of this particular bill through the parliament. Of course, it will get detailed consideration and a comprehensive response from him in the Senate when it reaches that place, but in the meantime I am happy to report that the opposition support this bill going forward. We do of course believe that it needs to be considered by a Senate committee. A number of issues and objections to the bill were raised by particularly the New South Wales Bar Association and us. The New South Wales Bar Association have indicated that their objections have been met, but because of the issues they originally raised we believe that it would be sensible for this bill to be properly considered by a Senate committee.

The bill seeks to enact the joint recommendations of the Australian Law Reform Commission, the New South Wales Law Reform Commission and the Victorian Law Reform Commission in their Uniform evidence law report of December 2005. The ALRC inquiry was commissioned by the then Attorney-General, the Hon. Philip Ruddock MP, the current father of the House. The inquiry also consulted the law reform bodies of Queensland, Western Australia, Tasmania and the Northern Territory, and the members of the ALRC who participated included Justices Kenny, Kiefel and Weinberg. The report recommended amendments to the uniform evidence acts relating to the examination and re-examination of witnesses before and during proceedings, the hearsay rule and its exceptions, the opinion rule and its exceptions, the coincidence rule, the credibility rule and its exceptions, and privileges including client legal privilege. The recommendations have already been enacted in New South Wales.

On preliminary examination, the bill adheres fairly faithfully to the recommendations of the report. The majority of these recommendations clarify and harmonise the rules of evidence, and we do not consider them to be controversial. However, there are some recommendations that the bill does not seek to enact and there are some proposed amendments that vary from those recommended in the report. The recommendations not addressed by the bill relate to the creation of new professional confidentiality relationship privileges. These would be qualified and considered by the court on a case-by-case basis. These matters would be better considered in terms of the recent ALRC report on legal professional privilege, entitled Privilege in perspective, of January 2008, and will doubtlessly be the subject of a later bill.

There is also variance with the report’s recommendation relating to the self-incrimination privilege arising in the context of civil search and freezing orders. The variation is more mechanistic than substantive but, again, requires further consideration. Also of note are the provisions extending so-called spousal privilege to de facto couples, including same-sex couples. The response to the report has been low-key. However, as I said at the beginning of my remarks, the New South Wales Bar Association has indicated that it opposed some of the report’s recommendations, particularly as they relate to the test of competence of witnesses, examination of witnesses, and aspects of hearsay and opinion evidence. These issues are too complex for detailed consideration at this time because of the short notice upon which this bill has been introduced but appear to be suitable for consideration by a Senate committee. For that reason, while the opposition supports the bill so far, we do that is subject to its consideration in more detail by a Senate committee. I recommend that course of action to the parliament.