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Wednesday, 18 June 2008
Page: 5253


Mr McCLELLAND (Attorney-General) (6:08 PM) —in reply—I would like to thank members for their contribution to the debate. The Evidence Amendment Bill 2008 is a significant step towards the harmonisation of evidence laws throughout Australia. The model Uniform Evidence Bill underwent extensive consultation both through the development of the Australian, New South Wales and Victorian law reform commissions report Uniform evidence law—and I congratulate them on their work and thank them in particular for their report—and the Standing Committee of Attorneys-General. In addition, a number of Commonwealth law enforcement and regulatory agencies were consulted by my department about the model provisions.

The amendments in this bill are largely technical and will have most impact on the courts and on legal practitioners. Promoting uniform evidence laws will increase efficiencies for the courts, legal practitioners and business, which, in turn, will benefit the broader community accessing the courts. The bill contains a number of important reforms, including amendments to make it easier for children and people with a cognitive impairment to give evidence by promoting the use of narrative evidence and disallowing improper questioning of vulnerable witnesses under cross-examination.

One of the most significant aspects of these reforms is provisions which will make it easier for children and people with an intellectual disability to give evidence before the courts. This is of particular significance where a child witness has been the victim of an offence and may know their offender. The reforms will also give courts greater control of cross-examination, including, for example, of victims of sexual assault. Of course, the changes do not alter existing discretions for the court to exclude evidence which may be unfairly prejudicial, misleading or confusing but, as mentioned, will provide greater accommodation for the needs of vulnerable witnesses in the context of the broader objectives of securing justice.

In addition to technical amendments, the bill also updates compellability provisions to provide that same-sex couples will be able to object to giving evidence against their partner in a criminal proceeding in the same way that currently exists for a married couple or a cohabiting de facto spouse. This implements part of the government’s announced reforms to remove discrimination in Commonwealth legislation against same-sex couples and their children. Likewise, de facto partners who may not cohabit but are in a genuine de facto relationship will have the same right to object to giving evidence against their de facto partner in a criminal proceeding as currently exists for a married spouse. This will cover situations where de facto partners are living apart as a consequence, for instance, of one partner working interstate. We believe these amendments reflect contemporary community views on this issue.

The bill also amends the exceptions to the hearsay and opinion rules so that oral evidence of the traditional laws and customs of an Aboriginal or Torres Strait Islander group is no longer treated as prima facie inadmissible when this is the very form by which these laws and customs are maintained—in other words, they are handed down from generation to generation orally by way of story and recount. This amendment will make it easier for the court to hear evidence of traditional laws and customs where relevant and appropriate. These amendments move away from a focus on whether there has been a technical breach of the hearsay and opinion rules because the evidence is handed down, as I have indicated, in oral form rather than in a written form and will instead focus on whether particular evidence is reliable.

The opposition has indicated its general support for the bill, and I welcome that. However, the opposition has referred the bill to a Senate committee for further consideration. Of course the government have no objection to that course of action when you are dealing with a technical subject matter, but, given the extensive consultation and consideration that has already been undertaken in the development of the bill itself, we are disappointed that the opposition has sought to set a reporting date of late September. We would certainly like the legislation passed earlier than that.

In conclusion, as the introduction of this bill highlights, the Commonwealth is committed to working with states and territories to achieve harmonisation of evidence laws across Australia. The New South Wales government has already passed evidence reform legislation based on the model provisions endorsed by SCAG. Indeed, I received particular representations from the New South Wales Attorney General, John Hatzistergos, encouraging the Commonwealth to move in the same direction. I congratulate and commend him and the New South Wales government on that move. I understand Victoria, Western Australia and the Northern Territory have also indicated that they are considering joining the uniform Evidence Act scheme. Again, I would certainly encourage those jurisdictions to follow through on that commitment.

The bill is an important step in progressing harmonisation of evidence laws across Australia, and I am keen to encourage all jurisdictions to implement the model Uniform Evidence Bill. This will result in a more uniform, coherent and accessible approach to evidence law, and reduced complexity and costs associated with juggling two evidence regimes in non-uniform Evidence Act jurisdictions. It will make legal practitioners more mobile and more effective as they travel around Australia and appear in separate jurisdictions.

I will certainly be encouraging Queensland and South Australia to join the rest of the nation by joining the uniform evidence acts scheme. When this occurs, the further harmonisation of the laws will be significantly advanced. Before I finish, I would like to table some minor amendments to the explanatory memorandum which address some cross-referencing issues that were in error in the primary explanatory memorandum.

Question agreed to.

Bill read a second time.