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Tuesday, 3 December 1985
Page: 2745

Senator GRIMES (Minister for Community Services)(10.11) —I move:

That the Bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows-

Mr President, this Bill proposes two reforms to the Evidence Act 1905. The first relates to the obtaining of evidence abroad for use in criminal or civil proceedings in Australia under Commonwealth law; the second to the class of persons who are competent to give ancillary evidence to prove business records. Deficiencies in the law in these areas have been brought to attention by, in particular, the former Special Prosecutor, Mr R. F. Redlich, Q.C., and by the Director of Public Prosecutions, Mr Ian Temby, Q.C.

Obtaining Evidence Abroad

In relation to the first amendment, the Special Prosecutor drew attention in his 1982-83 and 1983-84 Annual Reports to the difficulty of obtaining evidence overseas for use in Commonwealth criminal proceedings. The problem was further highlighted in recent prosecutions in Western Australia for alleged breaches of the Banking (Foreign Exchange) Regulations. The Federal Court held that the relevant court, which was a Magistrates' court, had no power to issue Letters of Request to an overseas court to have certain evidence taken abroad. The Director of Public Prosecutions has recommended that action be taken to remedy the situation. He comments that most of the heavy work with which his office is concerned has overseas aspects. He gives as examples drug prosecutions and revenue and other fraud cases.

In most respects the law concerning evidence, practice and procedure in relation to Commonwealth civil and criminal proceedings is that applying in the State or Territory where the hearing is being conducted. The Evidence Act 1905 only deals with limited areas, and these do not include procedures for the taking of evidence overseas.

The laws of evidence and procedure differ from State to State. The High Court, the Federal Court and Supreme Courts are able to order the obtaining of evidence overseas in civil matters before them. However, not all superior courts may order the taking of evidence in criminal matters. In no State or Territory does it seem possible for such evidence to be obtained in relation to criminal matters in inferior courts.

The Bill will allow the obtaining of evidence overseas, both oral and documentary, for use in Federal and Territory Courts or State Courts exercising federal jurisdiction in civil or criminal matters. This will fill gaps that exist in State laws.

The central features of the Bill are:

(i) In relation to proceedings before a superior court-the High Court, the Federal Court, Family Court and State and Territory Supreme Courts-the legislation will empower the relevant court on the application of a party to the proceedings to issue Letters of Request to an overseas court, or to order the taking of evidence overseas by commission or by the appointment of an examiner.

(ii) In relation to proceedings before an inferior court, such as a District Court or a Magistrates Court, a party to the proceedings who wishes to have evidence obtained overseas for the purpose of those proceedings may apply to the appropriate superior court for an order for the taking of such evidence.

(iii) The use of evidence obtained overseas will be subject to the following safeguards, since it may not be obtained in the presence of the defendant, and in criminal jury trials will be obtained in the absence of the jury:

(a) The issuing of the order will be at the discretion of the superior court.

(b) The superior court may include special conditions or directions in the order e.g. that cross-examination of a witness be permitted as a special procedure where this would not otherwise take place.

(c) Only evidence which answers the tests of admissibility in Australia will be admissible in Australia proceedings. Where the evidence is obtained for use in an inferior court, that court will determine the question of admissibility in its proceedings, and this determination will be subject to normal appeal processes.

(d) The Australian court hearing the matter will have a discretion to exclude any of the material obtained overseas if it seems unfair to receive it, nothwithstanding that the evidence satisfies Australian tests of admissibility.

Business Records

Turning now to business records, although the Evidence Act makes special provision for their admission into evidence in Federal and A.C.T. courts, attention has been drawn to the difficulty in obtaining the admission into evidence of documents originating overseas where there is no witness in Australia concerned with the making or keeping of the records competent to give the necessary ancillary evidence to prove the documents. A provision has, therefore, been made in clause 3 to enable a person authorised by the Attorney-General, a member of the Australian Federal Police of or above the rank of sergeant or an Australian Diplomatic or Consular Officer, to give the necessary ancillary evidence on the basis of information and belief, if it is not reasonably practicable, or would involve undue expense, to call the maker or keeper of the records.

Financial and Regulatory Impact

The making of an order by a court for the taking of evidence overseas could result in increased costs for the parties since overseas representation at the examination could be necessary. In civil cases existing practice deals with this point. However, in criminal cases where the Commonwealth is the applicant for an order, it is reasonable for the Commonwealth to provide assistance to the defendant in cases of hardship, where in all the circumstances it is reasonable for such assistance to be granted. This will be done within the existing guidelines for financial assistance. The costs involved cannot be quantified but the occasions when such provision will be made are likely to be few. The Bill will have no regulatory impact.

I commend the Bill to the Senate.

Debate (on motion by Senator Kilgariff) adjourned.