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Wednesday, 18 June 2008
Page: 5251


Mr HAYES (5:58 PM) —The Evidence Amendment Bill 2008 marks an important step in evidence law in reforming the Evidence Act 1995 to harmonise evidence law based provisions giving form to the Uniform evidence law report of the Australian, New South Wales and Victorian law reform commissions. This bill also amends the Amendments Incorporation Act 1905 to provide a presumption that certain printed and electronic versions of the act, including compilations of the act, are an accurate record of those acts. That will in turn lead to greater efficiency and make it a little easier for our legal colleagues in the administration of justice and for the courts themselves.

In 2005 the New South Wales and Victorian law reform commissions were asked to inquire into the operations of the uniform evidence law regime. This inquiry was conducted over an 18-month period, with numerous consultations held right across the nation, and I am advised that 130 written submissions were taken from a wide range of individuals, organisations and professionals. As a result, a working group comprising representatives of all jurisdictions, with the exception of Queensland, considered and developed a model set of provisions with a view to creating greater national uniformity in evidence laws. This culminated in the report Uniform evidence law and this bill directly arises out of that report.

The commissioners found that the uniform evidence laws were working well and that there were no major structural problems with the laws or the underlying policy. However, they did recommend that there would be a number of finetuning aspects, if you like, to the Evidence Act and promoted uniform laws which are more coherent and accessible and less complex and which reform some of the probably more unsatisfactory and more archaic aspects of the common-law provisions.

In developing the bill, the Commonwealth has worked constructively with the states and territories through the Standing Committee of Attorneys-General. The standing committee established a working group to advise ministers on reforms arising out of the report. They also considered the report’s recommendations and developed model evidence provisions with a view to creating greater national uniformity in evidence laws. The model was considered by a panel of experts established by the Standing Committee of Attorneys-General, which recommended some of the modifications. In July 2007 the standing committee endorsed the final model bill.

The reforms in this bill will do a number of things, including promoting harmonisation between Australian jurisdictions; increasing the efficiency of our courts, legal practitioners and businesses; and, in turn, benefiting those in the community who have occasion to access those courts. This bill implements the majority of the Standing Committee of Attorneys-General’s model evidence provisions. However, it does not include the provisions regarding the implementation of a general confidentiality relationships privilege or the provisions extending the right of client privilege and public interest immunity to pre-trial proceedings. These matters have been well canvassed in the media of late but they are all subject to a further investigation. As I understand it, a report was compiled by the Australian Law Reform Commission, entitled Privilege in perspective, and tabled by the Attorney-General earlier this year. Given that the report made some significant recommendations in terms of the government, it is yet to be finalised. That being the case, the matters subject to that report have not been included in the direction of this bill. Many of the amendments proposed in this bill are largely technical. The bill contains a number of important reforms, including amendments to make it easier for the giving of evidence by children and people with cognitive impairment—and that is something I would like to address briefly during my short contribution to this debate.

The bill addresses the misconception that evidence from children is inherently less reliable than evidence from adults. Specifically the bill provides that a trial judge is not to give warnings about the reliability of the evidence of a child solely on account of the age of the child. In fact, recent research undertaken tends to indicate that, quite frankly, for some time in our legal system, a child’s cognitive and recall skills have been undervalued. For example, the Australian Law Reform Commission and particularly the Human Rights and Equal Opportunity Commission, in their joint report entitled Seen and heard: priority for children in the legal process, note that very young children are able to remember and retrieve from memory very large amounts of information, especially when the events are personally experienced or regarded as highly meaningful. These reforms have particular significance for a child witness when the child may have been the victim of the offence. The bill recognises that the standard question and answer format for giving evidence, particularly by children, may be somewhat unsuitable. That being the case, the bill seeks to promote the use of constructive narrative as opposed to leading a witness and to control cross-examination of vulnerable witnesses. It gives the court the flexibility to receive the best possible evidence in any trial. This bill introduces a duty on the court to disallow improper questions put to a witness during cross-examination, and this includes questions which may be misleading or unduly harassing, intimidating or offensive. It will replace those provisions of the existing act which permit a court to disallow such questions. Therefore, it imposes a duty.

For those reasons, I do commend the bill. I think what this bill does is highly significant in bringing about uniformity amongst our criminal justice jurisdictions. Certainly, it puts at the forefront the procedure for taking evidence from children and persons of intellectual impairment. It gives great weight to the use of narratives in adducing evidence, as opposed to direct cross-examination. This will be of great significance, as it has now been adopted by most jurisdictions throughout Australia, and it will serve to be the model by which criminal justice, particularly in relation to children related criminal matters, will proceed across the country. On that basis, I commend the bill.