Shayne Neumann (Blair, Australian Labor Party) Share this | Hansard source

I rise to speak in support of the Evidence Amendment Bill 2008. As someone whose background is as a lawyer for about 25 years, I have always taken a keen interest in issues associated with law reform and I am pleased to see the Rudd government is taking national leadership in this particular area. I am also pleased with the amendments contained in this bill, which comes out of the Standing Committee of Attorneys-General. The Evidence Amendment Bill 2008 and the Judiciary Amendment Bill 2008 are clear examples of the Rudd government working closely with the states and territories to achieve real progress for our country in areas of law reform. The evidence bill is based on a model adopted by the Standing Committee of Attorney-Generals. It supports the uniformity of evidence laws in Australia and, of course, will improve efficiencies when it comes to courts, legal practitioners and business. The reforms make it easier for children and for people with intellectual disability to give evidence before courts. In addition, they provide greater flexibility to courts considering evidence given by people from an Aboriginal or Torres Strait Islander background concerning their traditional laws and customs.

Already the New South Wales state government has introduced reform legislation; I understand that Victoria, Western Australia and the Northern Territory intend to join the uniform Evidence Act as well. As a Queenslander, I am looking forward to the day when my own state parliament joins the uniform evidence scheme to advance the harmonisation of these laws. I urge the Queensland Attorney-General, Kerry Shine, to carefully consider this matter and I urge the Queensland government to sign on to the national approach.

All jurisdictions should strive for a uniform, coherent and accessible approach to evidence law. When this is achieved, complexity will be reduced and so too will costs that are associated with juggling two evidence regimes in non-uniform evidence jurisdictions. It will improve access to justice. There will be more transparency in court proceedings, and litigants in person will find court proceedings less baffling and bewildering. Explaining to Australians without a law degree the wonders of the legal oddities and eccentricities of Australian federalism is always a challenge. The history of law reform in this country has had some considerable successes, such as defamation law, corporations law and family law; but those reforms have been too few and far between.

I concur with the Attorney-General’s assessment that this bill is ‘an important step in evidence law reform’. Manifestly, this bill demonstrates the Rudd government’s continued commitment to uniform evidence law across the nation. It will have a positive impact on our courts, legal practitioners and other people associated with the courts system. While many of the amendments proposed in this bill are largely technical, the reforms provide a clear benefit for the broader community, who access courts on a daily basis. You only have to go to a local Magistrates Court, the Federal Magistrates Court or the Family Court to realise that the Australian public accesses courts every day. For those people, this reform will have a tangible impact on their dealings and interaction with our courts system. This bill seeks to amend the Evidence Act 1995 to harmonise evidence law based on the Uniform evidence law report by the Australian, New South Wales and Victorian law reform commissions and to amend the Amendments Incorporation Act 1905 to provide a presumption that certain printed and electronic versions of acts, including compilations, are an accurate record of those acts.

I am very impressed with this bill, and I have had a good look at it. In schedule 1 it implements a number of key reforms relating to the hearsay rule, the admissibility of expert evidence, compellability provisions, new exceptions to the hearsay and opinion rules, evidence given by children and vulnerable witnesses, admissions in criminal law proceedings, coincidence evidence, the credibility of witnesses, advance rulings and evidentiary matters, and warnings and directions to juries.

As I said, the impetus for this bill is found in the Uniform evidence law report prepared after the inquiry by the Australian and New South Wales law reform commissions, which was released on 8 February 2006. This report was completed over 18 months and involved consultations with every state and territory, and more than 130 written submissions were made. That is quite considerable. The report recommends finetuning acts and promoting uniform evidence laws so as to make them more coherent and accessible. The report also recommends that more archaic aspects of the common law be reformed and made less complex.

The bill has been developed in consultation with states and territories through a working group formed by the Standing Committee of Attorneys-General. The standing committee endorsed their model at their meeting in July 2007. The bill before the House today diverges from the model bill proposed by the standing committee in only two respects. First, it does not introduce a professional confidentiality relationship privilege. Second, it does not extend existing client legal privilege and public interest immunity to pre-trial proceedings. As outlined by the Attorney-General:

The government notes they are significant issues and we will be considering these matters separately.

I think the approach is worth while. This is because, of course, in December 2007 the Australian Law Reform Commission released a report known as Privilege in perspective. That report recommended that a separate act be created to cover various aspects of the law and procedure governing client legal privilege claims in federal investigations. As the Attorney-General announced, these issues will be considered when the response to this report is delivered.

This bill before the House today amends the Evidence Act 1995, which in itself was a significant reform. I was practising in federal law and family law at the time and I welcomed that act. It made my life a lot easier as a practising lawyer. This reform will make those people currently practising in jurisdictions across Australia far happier than they have been in the past. It implements the majority of the recommendations made by the uniform Evidence Act report. The harmonisation of Australian jurisdictions is extremely important in law reform. In his speech, the member for Moreton talked of a number of difficulties that were experienced in areas of contract and tort and other areas. Certainly, those areas are quite vexatious when it comes to dealing across various states. Limitation periods are different across states. The law is very difficult and getting uniformity when it comes to law reform is extremely important.

I turn to the hearsay rule. A key feature of this bill is the changes it makes to the hearsay rule. The bill provides further guidance in the definition of hearsay evidence. Hearsay evidence is used in a lot of federal courts, mainly in interim proceedings, often given on information and belief, particularly in the Federal Magistrates Court as well as in the Family Court. We have some legislative permission when it comes to the Family Law Act for hearsay, particularly from children, to be given in final hearings. But hearsay is a very dangerous concept in any court, particularly in criminal law. This bill clarifies the rule against hearsay, which currently states that it prevents evidence of a previous representation from being admitted for the purpose of proving a fact that the maker intended to assert by the representation. The main rationale for that, of course, is to avoid any unfairness caused by the admission of representations made by witnesses who cannot be cross-examined in court. It is a matter of fairness, opportunity and justice.

The bill proposes amendments to clarify the test to be applied in determining whether a person intended to assert the existence of facts contained in a previous representation. The new test of intention is a good one. It says that the test to be applied should be based on:

... what a person in the position of the maker of the representation can reasonably be supposed to have intended—

having regard to the representation. What did they mean? Did they intend that to be the case? An examination of the circumstances in which the representation was made is also available. It is an important reform. The policy of the act and particularly this bill is to include unintended assertions from the rule against hearsay.

There are new exceptions to the hearsay and opinion rules as well. The bill seeks to introduce new exceptions to the hearsay and opinion rule in, for example, the case of evidence of Aboriginal and Torres Strait Islander traditional law and custom. This is particularly important. This amendment rejects the notion that orally transmitted evidence of traditional law and customs should be prima facie inadmissible. I think this amendment is very important because in those cultures that is the way stories are told. In other cultures that is the case as well. But in the culture that we have had in this country since 1770, and certainly since legislation was accepted from the British jurisdiction in 1828, we have really accepted the written word. But it is not the case that we should exclude Aboriginals and Torres Strait Islanders from giving evidence in this way—accepting oral histories concerning the very form of traditional law and custom. Indigenous tradition should be respected and I warmly welcome this particular amendment. The intention is to make it easier for courts to hear evidence of traditional laws and customs when deemed relevant and appropriate to the issue before the courts. The new section 78A provides an exception to the opinion rule in section 76 by inserting a new provision. Now a member of an Aboriginal or Torres Strait Islander group will be able to give an opinion about the existence or otherwise or the content of traditional lives and customs of the group to which they belong. It is an area of nondiscrimination which is being put into this bill, and I warmly welcome it.

I turn now to non-hearsay purpose. A new section, 60(2), operates to allow evidence admitted for a non-hearsay purpose to be used to prove facts asserted in the representation whether the evidence is firsthand or second-hand hearsay or even more remote. This is an important reform and I think it is important to ease the passage of evidence being admitted in court. I think it is a good reform.

I want to turn now to the admissibility of expert evidence. The bill before us provides that, when a court is determining if a person is competent to give evidence, the court may inform itself in the manner it thinks fit, including by referring to the opinion of an expert. There will be a new exception to the credibility rule where a person has specialised knowledge based on their training, study or experience. This provision is not there to supplant the court’s role in determining a witness’s competence. It has always been the case and should always be the case that the court has that role. Rather, it is intended to emphasise that the court may have recourse to expert assistance. I have to say, based on the many cases I did and argued over the years, that I think it would have been very good if many of the judges and federal magistrates had sought expert assistance at times, and sometimes they did not seek it enough. The rules concerning expert evidence will be liberalised and broadened, and this new approach will allow more expert evidence to be adduced in litigation. That is always a good thing.

In relation to compellability, the bill proposes changes to the manner in which the Evidence Act addresses de facto couples, particularly in the context of whether the de facto partner of an accused may be compelled to give evidence. The bill replaces the words ‘de facto spouse’ with ‘de facto partner’. The bill ensures the terminology is gender neutral and applies to same-sex couples. This section recognises that couples in relationships of intimacy, love and commitment should not be forced to give evidence against one another unless the interests of the community require it. Moreover, it recognises that persons are unlikely to be reliable and accurate witnesses if they are forced to testify against their partner. Those of us who practise in family law or criminal law can attest to that fact. Therefore, the effect of this current amendment is not only to protect the family relationships of potential witnesses but to ensure the accuracy and reliability of evidence that is placed before any court. The changes in relation to de facto relationships also apply to same-sex couples, as I said. This is to ensure that the rules of evidence are not discriminatory and that they do not prevent the court from ensuring the quality of evidence before it is of the highest possible calibre and reliability. This reform in relation to same-sex couples enhances the work which is being done by the government to remove same-sex discrimination from a whole range of Commonwealth laws. This includes the legislation introduced just over a week ago to end discrimination against same-sex couples and their children concerning superannuation entitlements. Additionally, it is an acknowledgement that it should never be the business of our courts to alienate couples and family members from one another unless there is a compelling reason to do so.

I want to turn now to the evidence given by children and vulnerable witnesses. Courts often fail to give child witnesses the credibility they deserve. Courts and particularly juries often labour under a misconception that the evidence of children is inherently less reliable than that of adults. In criminal trials in which I have been involved over the years, judges have given directions and general warnings regarding the unreliability of evidence of child witnesses. Anyone who practises in the area of criminal law and family law knows that there is plenty of research around that shows that the cognitive development and memory skills of children are very good. My experience as a lawyer is that children remember good things and bad things which happen to them just as clearly as adults do. Children are often more honest in their evidence; their innocence helps them a lot. The wiles of adults often mean that they give evidence which is selective. It must be conceded, though, that children sometimes are more open to suggestion and manipulation by authority figures.

The new section 165A prohibits a judge from warning or suggesting to a jury that children as a class are more unreliable witnesses or that their evidence is more unreliable than that of adults and therefore requires more careful scrutiny. The warning given so often in criminal law matters that it is dangerous to convict on the uncorroborated evidence of a child witness will be gone under this new section. But this does not mean that judges cannot warn or advise juries that a particular child who is giving evidence in a particular case may lack credibility or be unreliable or that there should be a need for caution in relation to that particular child’s evidence.

There are a number of other reforms to make it easier for children and people with a cognitive impairment to give evidence, to promote the use of narrative evidence and to control cross-examination of vulnerable witnesses. Already in a number of jurisdictions, particularly in courts exercising federal law, there are creative approaches to hearings. As an example of that, I cite the children’s cases program used in the Family Court and the Federal Magistrates Court where the judge, with the lawyers and often the other parties, sits and talks with the people involved. It is very open and transparent and gives people the opportunity to speak in a way that they would not otherwise think a court would operate. I am pleased that the standard question and answer format for giving evidence for some witnesses—namely, children and people with an intellectual disability—will change. The reform will have particular significance for those who are vulnerable, particularly those who have been victims of crime. As I have said, I strongly believe it is erroneous to believe that the evidence of a child is inherently less reliable than that of an adult and it is imperative in proceedings that all relevant information is before the court.

In the few minutes I have available I just want to deal with a couple of other issues. Expert evidence in relation to child behaviour and development is very important. The report I referred to before found that courts show an ongoing reticence when it comes to many cases in admitting evidence of this nature. Expert evidence often relating to testimonial capacity, the credibility of a child witness, the beliefs and perception of a child and reasonableness of the same were discounted. This type of evidence is critical in many cases in criminal and family law matters. The new section 79(2) clarifies the exception covering expert evidence relating to child behaviour and development, especially in the case of sexual assault.

There are a number of other worthy amendments in this legislation—evidence relating to credibility of witnesses, advance rulings on evidentiary matters and admissions in criminal law proceedings. They go a long way towards the reforms that the Rudd Labor government is undertaking in relation to judicial appointments and transparency and in making the court system more user-friendly. I applaud the Attorney-General for yesterday enhancing access to justice in the federal law jurisdiction by announcing the Commonwealth courts portal, which must be seen as an important reform going hand in glove with this particular reform. The portal itself will allow users to undertake electronic transition and it will help also— (Time expired)

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