EVIDENCE AMENDMENT BILL 2008

This bill marks an important step in evidence law reform.

Members would be aware that the Commonwealth, New South Wales, Tasmania, the Australian Capital Territory and Norfolk Island have been part of a Uniform Evidence Law regime for over 10 years.

In 2005, the Australian, New South Wales and Victorian Law Reform Commissions were asked to inquire into the operation of that regime and to propose updates and amendments. Their work took 18 months, involved consultations in every State and Territory and more than 130 written submissions. This culminated in their report Uniform Evidence Law.

The Commissions reported that the uniform evidence laws are working well. They found no major structural problems with the legislation or with its underlying policy. Their recommendations were aimed at fine tuning the Acts and promoting uniform evidence laws that are more coherent and accessible; less complex and reform unsatisfactory and archaic aspects of the common law. These reforms will increase efficiencies for the courts, legal practitioners and business and in turn, benefit the broader community who access the courts.

In developing this 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 which considered the Report’s recommendations and developed a Model Bill that implemented many of the Commissions’ recommendations. The Model was also considered by an Expert Reference Group. The Standing Committee endorsed the final Model Bill at its meeting in July 2007.

The Evidence Amendment Bill varies from the SCAG Model in only two regards - it does not introduce a professional confidential relationship privilege and does not extend existing client legal privilege and public interest immunity to pre-trial proceedings. These are matters that have been canvassed in the media extensively. The Government notes they are significant issues and we will be considering these matters separately.

It is appropriate that the Government considers issues relating to privilege as it develops its response to the Australian Law Reform Commission Report Privilege in Perspective, which I tabled earlier this year.

I can also advise that the Government’s election policy, Government Information: Restoring Trust and Integrity, included commitments relating to journalist shield issues, and the Government is working on implementation of these commitments.

Many of the amendments proposed in this bill today are largely technical and in some cases they address developments in case law. For example, the amendments:

• provide further guidance on the hearsay rule
• introduce a general test for the coincidence rule
• help to ensure the reliability of admissions in criminal proceedings, and
• provide that the court may make an advance ruling or advance finding in relation to any evidentiary issue.

This bill also contains some significant reforms. For example, it extends compellability provisions in the Evidence Act to ensure that same-sex couples cannot be compelled to give evidence against their partner. This supplements the work being done by the Government to remove same-sex discrimination from a wide range of Commonwealth laws.

The compellability provisions will also be extended to provide that 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.

The bill also provides new exceptions to the hearsay and opinion rules for evidence/opinion given by a member of an Aboriginal or Torres Strait Islander group about the existence or non-existence, or the content, of the traditional laws and customs of the group. The oral tradition of Aboriginal or Torres Strait Islander’s traditional laws and customs does not fit well within existing hearsay and opinion rules. Yet, evidence of these matters is relevant in a variety of areas such as native title, family law, criminal law defences and sentencing. These amendments will make that evidence easier to provide and more appropriately reflects how knowledge of traditional laws and customs is recorded.

This bill also addresses the misconception that the evidence of children is inherently less reliable than that of adults. Specifically the bill provides that warnings by a judge as to the reliability of a child’s evidence should only be given where there are circumstances particular to the child witness that warrant a warning. Research conducted in recent years demonstrates that children’s cognitive and recall skills have been undervalued. For example, the joint ALRC and HREOC report Seen and Heard: Priority for Children in the Legal Process noted that very young children are able to remember and retrieve from memory very large amounts of information, especially when the events are personally experienced and highly meaningful.

These reforms will apply generally but will have particular significance where the child witness has been the victim of an offence.

Also, the bill recognises that the standard question and answer format for giving evidence may be unsuitable for a number of witnesses, such as children, and people with an intellectual disability. Its provisions extend the use of narrative evidence by providing the court with the power to direct a witness to give evidence wholly or partly in narrative form. This gives the court flexibility in receiving the best possible evidence.

Again these reforms will apply generally but will have particular significance where a child or a person with an intellectual disability has been the victim of an offence. Of course, before making such a direction the Court will take into account a range of matters, including fairness to all parties. The fact that these provisions have been introduced, in the context of children and people with an intellectual disability perhaps being among the most vulnerable in our community, is a significant advance.

Further, this bill revises the test for determining a witness’s competence to give evidence. This will enhance the participation of witnesses, including children and persons with an intellectual disability, in proceedings and ensure that relevant information is before the court.

Finally, the bill introduces a duty on the Court to disallow improper questions put to a witness during cross-examination. This includes questions which may be misleading or unduly harassing, intimidating, offensive or repetitive. This replaces the current approach which permits a Court to disallow such questions. The Commissions’ Report had found that this approach in practice had not provided a sufficient degree of protection for vulnerable witnesses.

I am pleased to note that the New South Wales Government has already implemented the model evidence reforms and that Victoria and other jurisdictions have signalled their intention to join the uniform evidence scheme.

In addition to implementing the Model Evidence Bill, this bill amends the Amendments Incorporation Act 1905, which will be renamed the Acts Publication Act 1905. These amendments will provide for certain printed and electronic versions of Acts (including compilations of Acts) to be taken, unless the contrary is proven, to be a complete and accurate record of those Acts. This will facilitate parties before the courts being able to prove the current state of the law. This is a practical reform to improve the accessibility of freely available authoritative information about Australia’s laws and will allow courts to rely on electronic versions of Commonwealth Acts.

I commend the bill.