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Thursday, 27 November 2008
Page: 7519


Senator BRANDIS (1:10 PM) —I suppose it is a reflection on the way in which the parliament works, where all of the attention is directed only to matters of political controversy, that the Evidence Amendment Bill 2008 will pass through this chamber in a matter of a few minutes without any significant debate, yet the bill, which the opposition supports, is probably one of the most important pieces of legislation that this parliament will consider this year. It has a long history. As honourable senators would be aware, originally the whole of the law of evidence was judge made. But in 1979 the then Fraser government made a reference to the Australian Law Reform Commission to inquire into the possibility of the comprehensive rationalisation and reform of the rules of evidence. The ALRC produced a substantial research paper and draft legislation in 1985 and a final report on the possibility of uniform evidence legislation in Australia in 1987. In 1991 the Commonwealth government and the New South Wales government each introduced legislation substantially based on the ALRC’s draft. The parliaments of those two jurisdictions passed in 1993 evidence bills which came into effect from 1 January 1995. They are a model for the gradual process by which Australia’s rules of evidence will become both statutory and uniform, and that has happened in some but not all jurisdictions. The current bill is the first full-scale review of the operation of the 1995 legislation and it will bring into effect a number of very important changes.

To most people, I suspect, the rules of evidence would be a very dry and prosaic subject, but to me as a lawyer they are endlessly fascinating. I regard the law of evidence as being—along with the symphonies of Beethoven or the architecture of Christopher Wren or the poetry of John Milton or Einstein’s general theory of relativity—among the great achievements of the human mind. The complexity, the subtlety and the sophistication of the rules are indeed remarkable, and the manner in which legislative draftsmen have captured the complexity of those rules, which consist of a large number of categories, subcategories, sub-subcategories, exceptions and subexceptions, is a great tribute to them. The rules of evidence have been expressed by great legal textbook writers like James Bradley Thayer and Wigmore, in America, and by the incomparable Sir Rupert Cross, at Oxford University, who, like a 20th century Teiresias, laboured through blindness to create his monumental work on the law of evidence.

They have now been reduced to statutory form, and the statutory formulation in the 1995 bill has now been improved upon. But these are more than merely technical changes. Again, these are the sorts of things that perhaps could only get a lawyer very excited. There have been significant changes to the exceptions to the hearsay rule. There have been very important changes to the rules regarding the competence and compellability of witnesses. There have been important changes to the testing of the credit of witnesses. The question of privilege, which does trespass a little more beyond the technical legal nature of these changes, is also addressed in this bill.

For those of us who are interested in the rules of evidence—I suspect there are not all that many in the parliament—this is a very, very important day. This is a very, very important bill. The opposition hopes that it will speed the process towards the day when all of the Australian jurisdictions adopt a uniform set of rules. In closing, can I express the congratulations and appreciation of the opposition to those at the Australian Law Reform Commission, those in the Attorney-General’s Department and the legislative draftsmen who have brought this bill to fruition.