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Thursday, 24 March 1994
Page: 2309


Senator VANSTONE (9.39 p.m.) —I move:

At end of motion, add:

",but with the following amendment and consequential amendment:

Amendment (2), proposed paragraph 33(2)(e), omit "whether exclusion", substitute "whether the admission or exclusion".

"Clause 25, page 10, line 30, paragraph (2)(e), omit "whether exclusion", substitute "whether the admission or exclusion".

These two amendments—one substantive and the other consequential—are a consequence of an amendment being taken on the run, so to speak, when we last considered this matter. At that time, the government looked at those amendments and said, `Well, they have good intentions. They are not bad but, if you're going to do it in the criminal area, you should do it in the civil area as well'. I think in the other place there was a bit of argy-bargy about the appropriate words to use, and it looked as though everything might be okay.

  Subsequent to that though there were meetings between officers of the department. I am not sure whether the Minister for Justice (Mr Kerr) was there but certainly the shadow Attorney-General (Mr Williams) was. There has been some disagreement as to the relationship between two opportunities to include and exclude evidence. The shadow attorney believes it would be appropriate to omit the words `whether exclusion' and substitute `whether the admission or exclusion' in relation to 33(2)(e) and 25(2)(e)—being, respectively, the criminal and civil matters.

  This is a very technical area. We believe that the view put forward by Mr Williams is a correct view and that the minister has actually missed the point that Mr Williams was making. We therefore want to press these amendments. Senator Ellison may well want to speak to the amendments because it was he who spotted the problem that we are now trying to fix.

  There has been an exchange of letters between the minister and the shadow attorney. I think it is appropriate that we incorporate that correspondence so that in later years those who want to delve into the finer points of whether it should read `whether exclusion' or `whether the admission or exclusion' can be satisfied that they have the best outline of the two arguments. With that in mind, I seek leave to incorporate in Hansard the following: a letter to the shadow attorney from the Minister for Justice, Duncan Kerr, dated 3 March; the shadow attorney's reply of 16 March; Mr Kerr's subsequent response dated 22 March; and Mr Williams' subsequent response dated 23 March.

  Leave granted.

  The letters read as follows

Minister for Justice

The Hon. Duncan Kerr MP

3 March 1994

The Hon Daryl Williams AM QC MP

Member for Tangney

Shadow Attorney-General

Parliament House

CANBERRA ACT 2600

Dear Mr Williams,

I refer to your letter of 2 March 1994 concerning the Foreign Evidence Bill 1994.

I thank you for your support in the debate last evening. As you are aware, the Government was more than happy to support the amendments moved by you to paragraphs 25(2)(e) and 33(2)(e).

The Government is also prepared to recast those parts of the Explanatory Memorandum that relate to clauses 24 and 32 (and clauses 25 and 33) in order to clarify what is meant by admissible evidence for the purposes of those provisions. Let me say that there is no intention to fundamentally change the law relating to what evidence would be admissible if given by a person in Court, and on this point there is no dispute. What I do have some difficulty with is the particular proposal as set out in your letter, not because I disagree with the principle but because it does not seem to be a good example of the type of problem I, and the departmental officers, understood we were seeking to address.

At the risk of making points you no doubt have already focused on I think it might be useful to set out my understanding of the interaction between clause 24 and clause 25. The same interactions apply equally to clauses 32 and 33 but for the purposes of argument I propose to focus on clauses 24 and 25.

The first point to consider is terminology. There is the overall admissibility question which is broken into two parts;

the first part relates to whether the evidence is admissible in a strict application of the law (sometimes referred to as legal admissibility) and relates to such things as the competence of the witness, hearsay or whether a person who purports to give such evidence as an expert is qualified to give evidence as an expert etc.

the second part relates to the exercise of a discretion in the court to exclude certain types of evidence.

My understanding of the scheme of the Bill is that Clauses 24, particularly paragraph 24(2)(b) seeks to address the legal admissibility question and relies on the existing law in that area, while clause 25 seeks to reflect the court's discretion to exclude legally admissible evidence. Clauses 24 and 25 together seek to:

introduce a rule that prima facie the foreign evidence is admissible unless the person could give it in person or it would not have been legally admissible; and

preserve a broad discretion in the court to exclude such legally admissible evidence.

The combined effect is to modify existing rules of evidence only in relation to certain foreign evidence, and in respect of that only to overcome legal admissibility.

In the discussions you had with departmental officers the examples discussed included that used by Senator Ellison of low probative but highly prejudicial evidence. The discussion then turned to whether evidence that would not normally be legally admitted would be admitted under clause 24. I am advised that the departmental officers suggested that the Explanatory Memorandum could be amended so as to clarify this concern. On reflection, however, I am not sure that evidence of low probative value but highly prejudicial is necessarily a good example to put into the Explanatory Memorandum in relation to clause 24. I say this for the reason that, as stated in your letter, the issue is not whether such evidence is legally admissible but whether in the exercise of the court's discretion such evidence could be excluded. I agree with your view of the court's discretion at common law but I consider, as outlined above, that that general discretion of the court at common law is reflected in clause 25 and therefore the appropriate place to reflect such a discretion is properly in clause 25. In order to make this clear the Explanatory Memorandum in respect of clause 25 could be amended and could include the example of low probative but highly prejudicial evidence.

I am of the opinion that, if your view of the admissibility test in paragraph 24(2)(b) is correct there would be a discretion to exclude evidence inherent in paragraph 24(2)(b) which would either nullify clause 25 (because the discretion addressed in clause 25 merely seeks to reflect the court's common law discretion which would then be imported into clause 24) or create a two tiered system of discretions where clause 25 would give a discretion to exclude evidence notwithstanding that the court had already considered exercising its discretion, and decided not to exercise it, under clause 24. Neither of these results are, to my mind, desirable.

I regret any confusion created in discussions on this matter and am not suggesting that the Government will not honour commitments given in the discussions. This is, obviously, a very complex and technical issue and I think there has perhaps not been a meeting of minds on the issue. I am more than happy to discuss this issue with you should you so wish. I have copied this letter to Senators Vanstone and Ellison for their information.

Yours sincerely,

Duncan Kerr

cc  Senator A Vanstone, Shadow Minister for Justice

Senator C Ellison

Daryl Williams AM QC MP

Member for Tangney

Shadow Attorney-General

and Shadow Minister Assisting the Leader

on Constitutional Reform

16 March 1994

The Hon Duncan Kerr MP

Minister for Justice

Parliament House

CANBERRA ACT 2600

Dear Minister,

I refer to your letter dated 3 March 1994 concerning the Foreign Evidence Bill 1994.

I note your view that it is undesirable that clauses 25 and 32, and in particular clauses 25(2)(b) and 33(2)(b), should be interpreted to allow the court to exercise a common law-type discretion when determining what foreign material may be adduced as evidence. Your view is that the common law discretion to exclude is reflected in clauses 25 and 33.

While I understand that difficulties could arise from a tiering of discretions, the amendments moved by me in the House were done so on the basis that at the initial stage in the statutory scheme (clauses 24 and 33, respectively), the court would not admit evidence the prejudicial effect of which outweighed its probative value.

My concern in this respect was highlighted by the amendment moved by Senator Ellison in the Senate (as later varied at your request) that the court must consider in exercising the discretion to exclude evidence under clauses 25 and 33, respectively whether the exclusion of the foreign material would unfairly prejudice any party to the proceeding. My difficulty was that there was no corresponding requirement that the court consider whether inclusion of the foreign material would cause unfair prejudice. Whilst such a factor could be considered under the broad discretion to exclude under 25(1) and 33(1), it need not be expressly considered by the court. Further, the amendment contained a practical and illogical emphasis on the exclusion of the evidence causing prejudice as opposed to its inclusion.

In my meeting with officers of the Attorney-General's Department I suggested that clauses 25(2)(e) and 33(2)(e) be amended to include reference to inclusion as well as exclusion of the evidence causing prejudice. The view was expressed by Attorney-General officers that that would be inconsistent with the scheme of clauses 25 and 33 to provide for the exclusion of otherwise admissible evidence. I do not see that that necessarily follows.

However, the bulk of my difficulties were resolved following discussion of the relationship of clauses 24 and 25 (and 32 and 33) to the discretion of a court at common law to exclude evidence, which would otherwise be admissible, on the basis of the prejudicial effect of the evidence as against its probative value. As noted above, it was my understanding from the discussion that the intention was that the common law discretion would be retained within clauses 24(2)(b) and 32(2)(b). That would deal with my difficulties because it would be at that preliminary point that the court would consider that evidence should not be adduced (ie included) on the basis that the probative value of the evidence was outweighed by its prejudicial effect. It was on that basis that my further amendments were moved in the House.

Given your difficulties with a two-tiered discretion, my original problem returns. Given that judicial discretion to exclude evidence resides exclusively in clauses 25 and 33, the disparity between specific regard being made to exclusion of evidence causing unfair prejudice as opposed to inclusion is highlighted.

This difficulty can be resolved simply by amending both clause 25(2)(e) and clause 33(2)(e) to omit "whether exclusion" and substituting "whether the admission or exclusion".

I would welcome your support for the amendments.

I realise that this is a technical point which has already consumed considerable parliamentary and departmental time. The further amendment will add to that. However in my view the question is of significance to parties to proceedings involving foreign evidence.

Yours sincerely,

Daryl Williams

Minister for Justice

The Hon Duncan Kerr MP

Mr D Williams AM QC MP

Member for Tangney

Shadow Attorney-General

Parliament House

CANBERRA ACT 2600

22 March 1994

Dear Mr Williams,

I refer to your letter of 16 March 1994 concerning the Foreign Evidence Bill 1994.

I am advised that at a meeting on 2 March 1994 between yourself and officials of the Attorney-General's Department you sought clarification of the interrelationship between, and effect of, clauses 24 and 25, and by implication of clauses 32 and 33.

An undertaking was given at the meeting that the Explanatory Memorandum would be recast so as to better explain the intended effect of those provisions. Copies of the Replacement Explanatory Memorandum have been made available to your Office. I understand that you are satisfied with the changes made to that document.

However, the separate issue of the drafting of paragraphs 25(2)(e) and 33(2)(e) remains, and in your most recent letter to me on this matter you state that you wish to further amend those two paragraphs.

I am further advised that at the 2 March meeting, the drafting of clauses 24 and 25 was discussed. In particular, the specific issue of the formulation of 25(2)(e) was canvassed. The discussions focused on whether the words "inclusion or" should have been inserted immediately before the word "exclusion". Departmental officers advanced certain arguments against that proposal. Later that same day in the House of Representatives you moved an amendment, which the Government supported, that did not raise this issue.

I am advised that the amendment proposed will have minimal impact on the substance of the clause. Accordingly, the Government does not propose to support the amendment.

Yours sincerely

DUNCAN KERR

Daryl Williams, AM QC MP

Member for Tangney

Shadow Attorney-General

and Shadow Minister Assisting the Leader

on Constitutional Reform

23 March 1994

The Hon Duncan Kerr

Minister for Justice

Parliament House

CANBERRA ACT 2600

Dear Minister,

Thank you for your letter dated 22 March 1994, received today.

With respect, you have missed the point of my letter dated 16 March 1994. The reason that I did not raise the question whether a reference to inclusion should be inserted in paragraphs 25(2)(e) and 33(2)(e) in the debate in the House is explained in the first complete paragraph of the second page of my letter. I made reference to that background in my speech in the second reading debate on 2 March.

My understanding of the intention as to the judge's discretion was derived from what I was told in the meeting with officers of the Attorney-General's Department earlier that day.

Given that you have subsequently withdrawn what I was told by the officers, on which I relied, I find it disappointing that you will not support what I believe is a sensible amendment.

Yours sincerely,

Daryl Williams