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Thursday, 5 February 2009
Page: 547


Mr DEBUS (Minister for Home Affairs) (11:35 AM) —I would like to thank members for their contributions to the debate on the Foreign Evidence Amendment Bill 2008. I particularly acknowledge the members for Farrer, Eden-Monaro, Cowan, Corio, Isaacs, Blair and Fisher. I thank the opposition for its support for the bill. The collection of foreign evidence relies on the willingness of foreign counterparts to provide assistance to Australia. The increasing globalisation of business and advances in technology mean that Australia’s efforts to fight crime depend ever increasingly on this form of foreign assistance, but our laws governing the admissibility of foreign evidence are not always flexible enough to deal with international differences in procedure. Barriers remain that can prevent the use of reliable evidence obtained from foreign countries with systems of criminal investigation and procedural law which differ from ours.

That brings us to the amendments before the House. Requests for business records are one of the most common types of requests for foreign evidence made by Australia. Business record evidence is used in financial fraud and proceeds-of-crime matters—a high-profile example referred to by members being the prosecutions arising out of what we call Operation Wickenby. But business record evidence is also used in prosecutions for crimes like money laundering, drug importation and child pornography and, while business records are generally considered a reliable and accurate form of evidence, compliance with Australia’s admissibility requirements is onerous from the point of view of many other countries. These requirements are now adversely impacting on Australia’s ability to obtain reliable evidence in a timely manner, and it is therefore appropriate, and indeed necessary, that more flexible rules are introduced to apply to the admission of foreign business records in domestic proceedings. It is also vital for the administration of justice that the law retains appropriate safeguards and that judicial discretion is maintained in this area.

In order to protect against the inappropriate admission of unreliable evidence, the bill provides that foreign business records may not be adduced if the court considers the records are not reliable or probative or if the records are privileged. The court also retains a broad discretion to prevent the foreign business records being adduced if justice would be better served if the foreign material were not adduced—that is to say, the discretion of the judge in any particular case is of great significance.

The bill strikes an appropriate balance in retaining safeguards while ensuring that there is sufficient flexibility in the law as it will stand. I ask that the relatively technical and minor appearance of this bill not detract from an understanding of its fundamental importance as a much-needed legal reform. Indeed, the provisions of this bill are vital to the more effective operation of Australian criminal and associated civil proceedings, and I commend it to the House.

Question agreed to.