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Foreign Evidence Amendment Bill 2010

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2008-2009

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

SENATE

 

 

 

 

FOREIGN EVIDENCE AMENDMENT BILL 2008

 

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

 

 

Amendments and New Clauses to be Moved on Behalf of the Government

 

 

 

 

(Circulated by authority of the Attorney-General,

the Honourable Robert McClelland MP)

 

 

 

 

 

 

 

 

 

 

 



AMENDMENTS TO THE FOREIGN EVIDENCE AMENDMENT BILL 2008

 

OUTLINE

1.            The purpose of these amendments to Schedule 1 of the Foreign Evidence Amendment Bill 2008 (the Bill) is to respond to the report of the Senate Standing Committee on Legal and Constitutional Affairs (the Committee) following its inquiry into the Bill. 

2.            The Foreign Evidence Act 1994 provides that foreign evidence may be adduced provided the evidence would have complied with all relevant rules of admissibility in the particular jurisdiction, had the person given the evidence in person at the hearing.  The Bill sought to streamline the requirements for foreign business records by providing that business records could be adduced unless the court was satisfied the records were not reliable or probative, or the records were privileged.  In response to the Committee’s report, the amendments would remove a number of the provisions of the Bill and instead maintain the current position in the Foreign Evidence Act that all types of foreign evidence, including business records, may be adduced provided they comply with the evidentiary rules in the relevant jurisdiction.  However, in order to address the problems identified in adducing foreign business records under the current provisions of the Foreign Evidence Act, the amendments would displace the operation of the rule against hearsay with respect to foreign business records.  That is, foreign business records could be adduced even where the records contain hearsay evidence, provided the other evidentiary requirements in the particular jurisdiction are satisfied. 

3.            The amendments would also:

·          enable the court to examine foreign material and draw inferences from the material, in order to establish the material is a business record and may be adduced

·          remove a provision of the Bill which would have given the court a discretion to limit the use to be made of foreign material

·          remove a provision of the Bill which would have created a presumption that foreign material complied with the testimony requirements in the Foreign Evidence Act, and

·          make minor consequential amendments to the application provisions.

 

FINANCIAL IMPACT STATEMENT

 

4.            There is no direct financial impact on Government revenue from this Bill.



NOTES ON AMENDMENTS

Amendment 1

5.            Amendment 1 would omit item 8 of the Bill.  Item 8 sought to add proposed subsection 22(3), which created a presumption that the requirements as to testimony in subsections 22(1) and 22(2) of the Foreign Evidence Act had been met, unless evidence sufficient to raise doubt was adduced to the contrary.  Omitting item 8 would implement Recommendation 1 of the Committee’s report by making clear that there is no onus on the non-adducing party to establish that foreign material does not comply with the testimony requirements in the Foreign Evidence Act. 

Amendment 2

6.            Amendment 2 would omit items 11 and 12 of the Bill and substitute new item 11.  New item 11 would add proposed subsections 24(3) and 24(4) to existing section 24 of the Foreign Evidence Act. 

Proposed subsection 24(3)

7.            Proposed subsection 24(3) would provide that foreign business records may be adduced where the records contain hearsay evidence, provided the other evidentiary requirements of the Foreign Evidence Act are satisfied.

8.            The Foreign Evidence Act currently provides that foreign evidence may be adduced provided the evidence would have complied with all relevant rules of admissibility in the particular jurisdiction, had the person given the evidence in person at the hearing.  The Bill sought to streamline the requirements for foreign business records by providing that business records could be adduced unlessthe court was satisfied the records were not reliable or probative, or the records were privileged. 

9.            The amendments address issues identified in the Committee’s report by maintaining the current position in the Foreign Evidence Act that all types of foreign material, including business records, may be adduced provided they comply with the evidentiary rules in the relevant jurisdiction.  The Bill, as amended, will implement Recommendation 1 of the Committee’s report by making clear that the adducing party is required to satisfy the court that foreign business records meet the evidentiary requirements of the Foreign Evidence Act. 

10.        In order to address problems identified when adducing business records pursuant to the current provisions of the Foreign Evidence Act, the amendments would displace the rule against hearsay with respect to foreign material that is a business record.  Proposed subsection 24(3) would provide that paragraph 24(2)(b) of the Foreign Evidence Act, which provides that foreign material may be adduced unless it would not have been admissible had the person given the evidence in person at the proceeding, does not apply to foreign material that is a business record if the only reason the evidence would not have been admissible is that an Australian law relating to hearsay evidence would have applied to the evidence.  That is, foreign business records could be admissible where the records contain hearsay evidence, provided the other evidentiary requirements in the particular jurisdiction are satisfied. 

11.        The term ‘Australian law’ is defined in subsection 3(1) of the Foreign Evidence Act to mean a law (whether written or unwritten) of or in force in the Commonwealth, a State or a Territory.  This would encompass both statutory and common law. 

12.        The rule against hearsay generally provides that evidence which contains previous representations that are intended to assert the existence of a fact is not admissible unless a relevant exception applies.  Often the only reason a business record is inadmissible is because it technically constitutes hearsay evidence.   For example, where the person giving evidence about the business record is not the person who created the record, the evidence may constitute hearsay and be excluded from evidence, notwithstanding that the records are otherwise reliable.  While some jurisdictions provide for an exception to the rule against hearsay for business records, witnesses in the foreign country may be unable or unwilling to provide testimony which would satisfy the requirements of the exception. Amendment 2 would ensure that foreign business records are not excluded from evidence simply because the evidentiary requirements relating to an exception to the hearsay rule cannot be met.  The person tendering the business records would not be required to provide proof that the records fall within an exception to the rule against hearsay. 

13.        Paragraph 24(3)(b) refers to ‘an Australian law relating to hearsay evidence ( however described ) …’.  This provision makes clear that it is not necessary for the relevant laws to use the terminology of ‘hearsay’ for the laws to be applicable.  For proceedings to which Commonwealth evidence law applies, the hearsay rule is set out in section 59 of the Commonwealth Evidence Act 1995

14.        The court would retain its general discretion under current section 25 of the Foreign Evidence Act to prevent foreign material from being adduced.  However, the intention of subsection 24(3) is that evidence should not be excluded solely on the basis that it does not comply with the rule against hearsay. 

Proposed subsection 24(4)

15.        Proposed subsection 24(4) would provide that the court may draw inferences from certain matters in determining whether foreign material is a business record, and may be adduced.  This amendment would ensure that the court is able to draw inferences from matters such as the content and form of the foreign material and the manner in which it was obtained (including that it was obtained pursuant to a request by the Australian Government for formal government to government assistance), in order to determine both that the foreign material is a business record, and that it may be adduced as evidence. 

16.        A similar provision enabling the court to draw inferences is contained in section 183 of the Evidence Act 1995 (Cth).

Item 12 to be omitted

17.        Amendment 2 would also omit item 12 of the Bill.  Item 12 of the Bill would have inserted proposed section 24A.  Proposed section 24A would have created an additional discretion enabling the court to limit the use to be made of foreign material.  This was included as the court’s general discretions to limit the use of material were excluded by the other provisions in the Bill in relation to foreign business records.  As the other changes made by amendment 2 would require all foreign material to comply with the relevant rules of admissibility in the jurisdiction (with the exception of the rule against hearsay in some instances), amendment 2 would remove this discretion from the Bill.  Relevant rules of admissibility would encompass discretions to limit the use to be made of evidence where applicable in the jurisdiction.

Amendment 3

18.        Amendment 3 would amend the heading of item 15 of the Bill to omit references to amendments made by item 8.  This amendment is a consequential amendment to amendment 1, which would omit item 8 from the Bill. 

Amendment 4

19.        Amendment 4 would amend item 15 of the Bill to omit references to amendments made by item 8.  This amendment is a consequential amendment to amendment 1, which would omit item 8 from the Bill. 

Amendment 5

20.        Amendment 5 would omit item 17 of the Bill which provided for the application of item 12 of the Bill.  This is as a consequence of amendment 2, which would omit item 12 of the Bill.