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Thursday, 24 March 1994
Page: 2308


Senator BOLKUS (Minister for Immigration and Ethnic Affairs and Minister Assisting the Prime Minister for Multicultural Affairs) (9.38 p.m.) —I move:

  That the committee agrees to the amendments made by the House of Representatives in the bill.

I seek leave to incorporate a statement in Hansard.

  Leave granted.

  The statement read as follows

Foreign Evidence Bill 1994

The aspects of the Foreign Evidence Bill with which we are concerned today have been considered by the Senate on a previous occasion. The issue relates to the matters a court must take into account when considering whether to exclude, in the exercise of its discretion, foreign material which otherwise is admissible. The scheme of the Bill is to make foreign evidence prima facie admissible, subject to two mandatory exceptions. This is provided under clause 24 in Part 3 and clause 32 in Part 4 of the Bill. As the debate on this aspect of the Bill has been on Part 3 I shall continue to focus on Part 3, but the arguments apply equally to Part 4.

Subclause 25(1) maintains the common law discretion in a court to exclude legally admissible material, and in particular foreign material that is admissible under clause 24. If foreign material is not admissible under clause 24 then that is the end of the matter so far as that material is concerned. The foreign material that may be excluded under subclause 25(1) includes evidence that is of low probative value but highly prejudicial to an accused person. However, under subclause 25(2) the court when considering exercising its discretion to exclude legally admissible foreign material must take into account certain matters. In the Bill as originally introduced into this place four matters were set out. At the suggestion of the Opposition the Government agreed to include a fifth matter which the court must consider in its exercise of the discretion to exclude foreign material, new paragraph 25(2)(e).

It became apparent to the Government that the paragraph, which was drafted on the run during the debate, was less than perfect and that a better formulation could be drafted. The Government had proposed to introduce an amendment in the House of Representatives but, by way of counter proposal, the Opposition moved its own amendment in the House. The Government supported the Opposition's amendment. Now we understand that the Opposition may be proposing a further amendment to paragraph 25(2)(e) to amend the formulation that the Opposition themselves proposed.

The Government, quite frankly, believes this to be a waste of parliamentary time. The Government does not consider that the proposed amendment adds anything of substance not already covered by clause 25(1). Clause 25(2) sets out certain grounds that the court must have regard to when considering whether to exercise the discretion in clause 25(1), without in any way limiting the generality of clause 25(1). The Explanatory Memorandum has been revised (at Paragraph 40) to make it clear that the discretion covers the exclusion of evidence that is highly prejudicial but of low probative value. Parliamentary time is sufficiently precious for it not to be wasted on semantic niceties.

As a result of discussions with the Opposition the Explanatory Memorandum has been significantly redrafted to better explain the interaction between clauses 24 and 25 and clauses 32 and 33. In a spirit of co-operation paragraphs 25(2)(e) and 33(2)(e) have been inserted into the legislation. Both of these efforts have significantly enhanced the legislation. But there is a law of diminishing returns. As I have already said the proposed words, while perhaps reflecting a nuance, do not add anything to the substance of the clause. There must be an end, at some point, to the redrafting of provisions of proposed legislation, otherwise the Senate will deal with nothing else. Therefore the Government supports the Bill, as returned from the House of Representatives.

During the course of discussions with the opposition on the interaction between clauses 24 and 25, and 32 and 33, the government agreed to modify the explanatory memorandum to better explain their operation. The government has honoured its commitment. I table the replacement memorandum which, I understand the opposition agrees, clarifies the operation of those provisions.