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Wednesday, 3 December 2008
Page: 12298

Mr McCLELLAND (Attorney-General) (9:44 AM) —I move:

That this bill be now read a second time.

The main purpose of the Foreign Evidence Amendment Bill 2008 is to streamline the process for adducing business records as evidence in Australian court proceedings.

Part 3 of the Foreign Evidence Act 1994 provides a means of adducing foreign material, obtained in response to a mutual assistance request to a foreign country, as evidence in Australian criminal and related civil proceedings. The provisions are designed to facilitate the use of evidence obtained from foreign countries. However, the current provisions are not always adequate to meet the special evidentiary problems associated with obtaining and using evidence from foreign countries which have differing criminal laws and procedures.

Mutual assistance requests seeking business records from a foreign country are increasingly becoming one of the most common types of requests made by Australia. Globalisation and advances in information technology mean that this form of evidence is particularly important to Australia’s efforts to fight white collar crimes such as fraud and money laundering.

Currently, the Foreign Evidence Act requires that business records must comply with the rules of evidence that apply in the jurisdiction in which the proceedings are being heard. However, the admissibility of business records is governed in Australia by technical evidentiary rules which vary between states and territories. Australian authorities have indicated they experience considerable difficulties in obtaining business records from foreign countries in a form that complies with these admissibility requirements. As a result, reliable evidence obtained through mutual assistance may not be able to be admitted into evidence in court in Australia.

The bill would amend the Foreign Evidence Act to provide that business records obtained through mutual assistance will be presumed to be admissible unless the court is satisfied the records are not reliable and probative, or are privileged. It is appropriate that the process for adducing business records be streamlined as this type of evidence is generally considered accurate and reliable. The court would retain a broad discretion to prevent foreign material being adduced if it is in the interests of justice to do so.

The bill would also provide greater flexibility to the requirements for the form of testimony obtained from foreign countries. Currently, testimony must be taken on oath or affirmation or under caution or admonition. Not all foreign countries, particularly those with a civil law system, provide for the taking of evidence on oath or affirmation, or under caution or admonition. The bill would extend the testimony provisions to provide for evidence to be taken in circumstances where the person is under a legal obligation to tell the truth, even though no formal oath or admonition has occurred.

Other amendments would update and improve the operation of the Foreign Evidence Act. For example, the bill would provide the court with an additional discretion to limit the use to be made of foreign material, where there is a danger that it could be unfairly prejudicial to a party to the proceedings. The bill would also clarify the application of part 3 of the act to non-conviction-based proceeds of crime proceedings.

Part 3 of the Foreign Evidence Act currently applies to criminal and related civil proceedings in states and territories, as well as Commonwealth proceedings. This bill will initially apply to Commonwealth proceedings, with provision to apply the amendments to states and territories through regulations. I will be liaising with the states and territories to determine if and when such regulations should be made.

It is necessary that amendments to facilitate the admission of business records be progressed promptly. However, I also recognise that the Foreign Evidence Act may need to be amended to ensure processes for adducing other types of foreign material are also appropriate. Further proposals for amending the Foreign Evidence Act are under consideration in the context of a review of extradition and mutual assistance laws being conducted by the Attorney-General’s Department.

The Foreign Evidence Amendment Bill will ensure that reliable foreign evidence obtained through formal government-to-government processes is able to be used in Australian criminal and related civil proceedings, while retaining appropriate safeguards.

I commend the bill to the House.

Debate (on motion by Mr Wood) adjourned.