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Friday, 23 November 1979
Page: 2947

Senator EVANS (Victoria) - I move:

Page 2, after clause 5, insert the following new clause: 5a. Section 2 1 9f of the Principal Act is amended-

(a)   by inserting after sub-section (I) the following sub-section: (1a) In sub-section (I), "person" includes a court.'; and

(b)   by inserting after sub-section (3) the following new sub-sections: (3a) Where, in proceedings in a court in respect of an offence, objection is taken to the admission of evidence on the ground that the evidence was obtained in contravention of, or in consequence of a contravention of, or in consequence of a failure to comply with, a provision of this Act, in relation to a person, the court shall not admit the evidence unless it is, on the balance of probabilities, satisfied that admission of the evidence would specifically and substantially benefit the public interest without unduly prejudicing the rights and freedoms of any person. (3b) The matters that a court may have regard to in deciding whether, in proceedings in respect of an offence, it is satisfied as required by sub-section (3a), include-

(   a ) the seriousness of the offence in the course of the investigation of which the provision was contravened, or was not complied with, the urgency and difficulty of detecting the offender and the urgency of the need to preserve evidence of the fact;

(b)   the nature and seriousness of the contravention or failure; and

(c)   the extent to which the evidence that was obtained in contravention, in consequence of the contravention of, or in consequence of the failure to comply with, the provision might have been lawfully obtained. (3c) The burden of satisfying the court that evidence obtained in contravention of, in consequence of the contravention of, or in consequence of the failure to comply with, a provision of this Act should be admitted in proceedings lies on the party who seeks to have the evidence admitted. (3d) This section is in addition to, and not in derogation of, any other law or rule under which a court may refuse to admit evidence in proceedings. '. ".

This amendment proposes the insertion of a new clause 5A after clause 5. The effect of it would be to amend section 2 1 9f of the principal Act in certain respects, as set out in the text of the amendment. The first part of the amendment enables the use of the word 'person' to extend to and include the concept of a court. The reality is that as a result of the law articulated in Padman 's case, there is no basic restriction as the law now stands on the ability of witnesses in court cases to communicate information obtained in the course of narcotics inquiries to that court for the purposes of adducing evidence of some other offence, not being a narcotics offence. That follows from the way in which the word 'person', as it appears in the present text of the legislation, has been construed by the judiciary as not extending to and including courts. Essentially this is a technical amendment. I cannot imagine that the thrust of it, in principle or in policy, would be opposed by the Government. I think that the Government would welcome the opportunity to advance further the spirit of this legislation which is to confine the use of listening devices to narcotics type offences and not to enable such information obtained in that way to be communicated at large for the purposes of establishing other kinds of offences.

The second part of the amendment relates to the status of illegally obtained evidence under these new powers. At the moment the general law is that the mere fact that evidence is obtained illegally will not necessarily lead to its exclusion. It is a matter for the court to determine whether in all the circumstances consideration and fairness demand that it be left in or rather that it be kept out. The Opposition proposes an amendment which will create a reverse onus discretionary exclusion rule of the kind that was recommended by the Australian Law Reform

Commission in its 1975 report on criminal investigation, which proposal has not only been the subject of a good deal of debate in other contexts in this chamber but also was picked up by the Government and incorporated into the criminal investigation Bill which it introduced in 1977. Again, I cannot imagine why the Government would have any objection in policy or principle to this amendment. I hope, accordingly, that it will be accepted.

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