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Thursday, 9 March 1972
Page: 623


Senator MURPHY (New South WalesLeader of the Opposition) - The amendments I propose to move on behalf of the Opposition to Part VI of the Bill have been circulated. I indicated in my speech on the motion for the second reading of the Bill that the. Opposition would seek further guidance on certain matters and that, in the light of the guidance given, it might modify some of its proposals. But at the moment I intend to move the amendments which have been circulated.


Senator Greenwood - Has the Leader of the Opposition in fact circulated some amendments?


Senator MURPHY - Yes, 2 lots of amendments. They were circulated only a few minutes ago. There are 5 amendments in all to Part VI. They all touch upon the same point, namely, whether there should be a provision restricting Part VI to civil proceedings. Firstly, I move:

Before clause 28, insert the following new clause in Part VI. 27a. In this Part, "proceeding" does not include a criminal proceeding.'.

The other 4 amendments are consequential upon that amendment. The question the Opposition raises is whether Part VI of the Bill should apply only to civil proceedings or to criminal proceedings as well. The Opposition has some doubts about the width of Part VI in relation to civil proceedings. I think that there may be some considerable dangers in practice. My colleagues and I have discussed the various ways in which these provisions could be used to the detriment of, say, persons commencing actions at common law and how statements which have been gathered by insurance investigators and so forth could be used. On the balance we have come, down in favour - unless the discussion causes us to change our minds - of not opposing the extension of these provisions to civil proceedings. It appears from the second reading speech of the AttorneyGeneral that those who advised him in relation to the ordinance did not advise him properly and that the ordinance did not provide for the application of these rules in criminal proceedings. We feel that further experience of these provisions in civil proceedings is warranted before they are extended to the criminal proceedings.


Senator Byrne - Do similar provisions exist in New South Wales?


Senator MURPHY - Not in criminal proceedings.


Senator Byrne - I mean in civil proceedings.


Senator MURPHY - More or less, yes. They seem to have been hedged around a bit. Very little use has been made of them.


Senator Byrne - Were they written into the New South Wales law fairly recently?


Senator MURPHY - No, the first part of them, 1 think, is found in clause 14b of the Evidence Act of New South Wales. My colleagues and 1 who have had considerable experience in civil matters in New South Wales find that these provisions, while they are on the books and although there may be some variations from what is proposed here, rarely come to be used. We have had no practical experience of them in civil matters. It is quite a rarity. I can think of one or two cases only in which they have been invoked, and then not to any subs' an tia] degree.


Senator Durack - Does the honourable senator think that this is probably because the profession has been brought up on the old idea that hearsay is excluded and its members have not really caught up with the changes?


Senator MURPHY - Perhaps that is so. Whatever the reason is, I cannot say that there has been a proper experience of these provisions. Wc are not suggesting that they should be cut out of the civil proceedings although I am a little apprehensive about the extensions of the New South Wales rule. But we are not prepared to say that we are opposed to them in civil proceedings. Not having had any experience of them in criminal proceedings, not having had any real practical working of them in civil proceedings to the full extent that they are provided here, our feeling is that we would like to see them operate in this Territory in civil jurisdiction before they are extended to criminal proceedings. That is in accordance with what was originally proposed in the Ordinance.

Broadly, that is our approach to the mater. We do not say that essentially they are bad. We need to be extremely cautious, as I think appears from the second reading speech, in dealing with criminal matters. We feel that we would like to see how these provisions operate in the Territory in civil jurisdiction. Let them remain where they would have been with respect to the proposals in the ill-fated Ordinance, but let us see how they opera' e for a while before we extend them to the criminal proceedings.







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