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Thursday, 9 March 1972
Page: 617

Senator GREENWOOD (VictoriaAttorneyGeneral) - Dealing with each of the points raised by . Senator Cavanagh, the definition of 'court' must be sufficiently comprehensive to include those places- where evidence is likely to be received. Naturally - this is why it must be included in the definition- it means a court of the Territory, whether it be the Court of Petty Sessions or the Supreme Court. Clause 6 states: court' means -

(b)   a tribunal or person . . . having authority under a law in force in the Territory or by consent of parties to receive evidence.

For example, included in those tribunals or persons would be a person appointed under the Inquiries Ordinance to conduct an inquiry who is to receive evidence: or, where there is an arbitration by consent of the parlies, the arbitrator who conducts the matter and is entitled to receive evidence. They aTe examples which I envisage are covered by the expression 'tribunal or person'. Of course, the character of a committee of the Senate or of the House of Representatives is different from that of a court because its function is different. Such a committee is probably to be regarded more as inquisitorial in its investigation rather than adjudicative and the provisions of the ordinance are felt, properly, not to be applicable. I think we all appreciate that at the present time inquiries are going on into areas of privilege and the rights of witnesses before parliamentary committees so that an appropriate code or standard of conduct can be evolved which will govern those proceedings. The second point raised by Senator Cavanagh deals with the provisions of clause 7 of the ordinance.

Senator Cavanagh - Clause 7 (4.).

Senator GREENWOOD - Clause 7(3.) first of all. I think that was referred to. It states:

This Act does not prevent the making by or under an Ordinance of the Territory of a provision with respect to evidence., not being a provision inconsistent with this Act.

Insofar as there may occur in the future an ordinance which enacts a particular provision relating to evidence, that ordinance will prevail and it cannot be regarded as invalid by virtue of any conflict with these provisions. If, at the present time, there exists an ordinance which deals with a provision, it is not to be taken that that ordinance repeals the existing provision unless there is an inconsistent provision, in which case it must be taken to be repealed. Clause 7 (4.) states:

This Act does not apply with respect to the taking of evidence under an Ordinance where the Ordinance contains a provision to the effect that the tribunal or person taking the evidence is not to be bound by any rules of evidence.

I assume that there are ordinances - I cannot readily without some research put my finger on one of them - which contain such provisions. It is not an altogether uncommon provision to find in certain ameliorating statutes such as the Conciliation and Arbitration Act in regard to the taking of evidence in proceedings before the Commonwealth Conciliation and Arbitration Commission or before commissioners. I think that this is an expression which one comes across in other statutes. It is a matter of the policy of the legislature as to whether the rules of evidence are lo be adhered to. If, in particular instances, the legislature decides that rules of; evidence are not to apply then specific provision is made to that effect. Bin generally, with regard to the established courts of the land the rules of evidence do apply. 1 think the provision is made simply to ensure that where there is a statute which mav have force in the Territory saying that the rules of evidence are not to apply, a person cannot insist on strict adherence to the rules of evidence by virtue of this ordinance.

Senator Cavanagh - Can ministerial action exclude an ordinance from the Evidence (Australian Capital Territory) Act?

Senator GREENWOOD - I would think that if an ordinance were subsequently made and it contained a provision that the rules of evidence were not to apply then that ordinance would have effect according to its terms and the rules of evidence would not apply. Accordingly, this ordinance would not apply. But if that is a matter of concern I point out that the ordinance would be subject to scrutiny by either House of Parliament because the ordinance would be tabled in each House of the Parliament. As far as the final point raised by Senator Cavanagh is concerned, I point out that the Act is to apply to every proceeding, criminal or civil, unless the contrary intention applies.

Senator Byrne - Would that include arbitral proceedings?

Senator GREENWOOD - If the proceedings are before an arbitrator who, with the consent of the parties, is to receive evidence and who is not, by terms of the arbitration, required to ignore the rules of evidence then I think that the answer must be in the affirmative.

Senator Cavanagh - The words 'unless the contrary intention appears' would suggest that one could again opt out by another Act of Parliament.

Senator GREENWOOD - I do not think that 1 would go that far in the case of this ordinance. I think that one must find a contrary intention in this ordinance to enable a decision to be made that the provisions of the ordinance are not to apply to a particular proceeding. I take the view that this is a draftsman's expression. To me it quite clearly indicates that if one talks about any proceeding one means every proceeding. If one wants to make a distinction between a criminal proceeding and a civil proceeding then that must be expressly indicated. If one looks through the provisions of the ordinance in many places one finds reference made to proceedings not being a criminal proceeding or a civil proceeding.

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