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Thursday, 29 March 1973
Page: 899


Mr N H Bowen (PARRAMATTA, NEW SOUTH WALES) - I have a special interest in this small Bill because in 1968. when I had the honour to have the portfolio of Attorney-General, I established a committee to prepare a new code of evidence for the Australian Capital Territory. At that time in the Territory we were applying the New South Wales law, which was in the Evidence Act of 1898 and partly in the Crimes Act of 1900. It was considered, at any rate by me, to be somewhat out of date. I appointed the committee, which was headed by Mr Justice Fox, with the object, in the first place, of preparing a new evidence code which would be something of model for the rest of Australia. As the work proceeded, this was found to be a very heavy task. We consulted various experts. For example, we consulted, among others, Professor Cross who assisted the British with their 1968 Evidence Act. Professor Cross was lecturing in Australia and he has written a standard work on evidence.

It became apparent that the task would be a long one. In the result, what occurred was that the most obvious deficiencies were cured or attempted to be cured by this committee and a new evidence ordinance was prepared for the Australian Capital Territory which was a very great advance on anything previously but which I would not have described as the ultimate model code for Australia. For example, it provided for the admission of statements in writing and made other provisions on hearsay. It provided for the admission in evidence of statements from computers, with proper safeguards. These were somewhat novel provisions in Australia. Nevertheless, so far as it went, it was a good ordinance. It came into operation .aid, thereafter, cases in the Australian Capital Territory were conducted with this ordinance governing the provisions relating to evidence.

This ordinance came before the Senate Standing Committee on Regulations and Ordinances which took a view which should be referred to in this House. The Committee took the view not that the ordinance was bad but, in effect, that it was so good that its provisions should be enacted in the form of legislation and not by ordinance..


Mr Enderby - That it should be dealt with by the Parliament.


Mr N H Bowen (PARRAMATTA, NEW SOUTH WALES) - That it should be dealt with by the Parliament in the form of a Bill. So many substantive provisions, such as the new companies legislation, had been allowed to be enacted by ordinance that the. prospect of putting every decent piece of legislation as it affected the Australian Capital Territory through this Parliament was a daunting one. Nevertheless, the Senate, on the recommendation of its Regulations and Ordinances Committee, decided to disallow the ordinance which was considered to be a good one. The result of that was that for a period there was no law of evidence applying in the Australian Capital Territory and for about a week it was not possible even to try criminals satisfactorily in the courts of the Australian Capital Territory. This obviously was a position that could not be allowed to continue. So the first attempt was made to produce a short Act to continue the terms of the ordinance in force until such time as a Bill could be. introduced and debated as desired by the Senate Committee. Time went on. In fact, as my learned friend, the Minister for the Capital Territory (Mr Enderby) said. a Bill eventually was introduced by my colleague, Senator Greenwood, and brought before the Senate in order to put it in the form of an Act. It was debated for some days. It reached the Committee stage in the Senate, but it was not passed. Again, there was the risk of expiry and the Territory being left without any law of evidence. So, another Bill was introduced to extend the provisions of the ordinance, and today we are debating the matter again. This ordinance, supported by the other short Act, expires on 21st March and we are confronted with the necessity of passing another Bill to continue the ordinance in force.

I cannot oppose that being done; it obviously is absolutely necessary. But I do register this degree of protest: There was no objection in substance to the ordinance. It was felt that it contained substantive provisions which the Senate would have liked to have debated. The Senate could have debated those provisions on the ordinance, but it did not. The Senate wanted to debate them in the form of a statute. I respectfully suggest that this is not a practical way of proceeding until there is some form of self-government in the Territory where its laws can be debated, if necessary, but not necessarily in the national Parliament thus delaying the enormous legislative program that we necessarily have in this place. I do not want to delay the passage of this Bill. As I said, 1 agree with my learned friend that the Bill is necessary, and we do not oppose it.

Question resolved in the affirmative.

Bill read a second time.







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