Christopher Pyne (Sturt, Liberal Party, Shadow Minister Assisting the Shadow Minister for Immigration and Citizenship) Share this | Link to this | Hansard source

I am pleased to speak on the Evidence Amendment Bill 2008 in the House today, representing Senator George Brandis SC, our esteemed colleague in the other place, who is responsible for the carriage of this particular bill through the parliament. Of course, it will get detailed consideration and a comprehensive response from him in the Senate when it reaches that place, but in the meantime I am happy to report that the opposition support this bill going forward. We do of course believe that it needs to be considered by a Senate committee. A number of issues and objections to the bill were raised by particularly the New South Wales Bar Association and us. The New South Wales Bar Association have indicated that their objections have been met, but because of the issues they originally raised we believe that it would be sensible for this bill to be properly considered by a Senate committee.

The bill seeks to enact the joint recommendations of the Australian Law Reform Commission, the New South Wales Law Reform Commission and the Victorian Law Reform Commission in their Uniform evidence law report of December 2005. The ALRC inquiry was commissioned by the then Attorney-General, the Hon. Philip Ruddock MP, the current father of the House. The inquiry also consulted the law reform bodies of Queensland, Western Australia, Tasmania and the Northern Territory, and the members of the ALRC who participated included Justices Kenny, Kiefel and Weinberg. The report recommended amendments to the uniform evidence acts relating to the examination and re-examination of witnesses before and during proceedings, the hearsay rule and its exceptions, the opinion rule and its exceptions, the coincidence rule, the credibility rule and its exceptions, and privileges including client legal privilege. The recommendations have already been enacted in New South Wales.

On preliminary examination, the bill adheres fairly faithfully to the recommendations of the report. The majority of these recommendations clarify and harmonise the rules of evidence, and we do not consider them to be controversial. However, there are some recommendations that the bill does not seek to enact and there are some proposed amendments that vary from those recommended in the report. The recommendations not addressed by the bill relate to the creation of new professional confidentiality relationship privileges. These would be qualified and considered by the court on a case-by-case basis. These matters would be better considered in terms of the recent ALRC report on legal professional privilege, entitled Privilege in perspective, of January 2008, and will doubtlessly be the subject of a later bill.

There is also variance with the report’s recommendation relating to the self-incrimination privilege arising in the context of civil search and freezing orders. The variation is more mechanistic than substantive but, again, requires further consideration. Also of note are the provisions extending so-called spousal privilege to de facto couples, including same-sex couples. The response to the report has been low-key. However, as I said at the beginning of my remarks, the New South Wales Bar Association has indicated that it opposed some of the report’s recommendations, particularly as they relate to the test of competence of witnesses, examination of witnesses, and aspects of hearsay and opinion evidence. These issues are too complex for detailed consideration at this time because of the short notice upon which this bill has been introduced but appear to be suitable for consideration by a Senate committee. For that reason, while the opposition supports the bill so far, we do that is subject to its consideration in more detail by a Senate committee. I recommend that course of action to the parliament.

Graham Perrett (Moreton, Australian Labor Party) Share this | Link to this | Hansard source

The ever-evolving nature of Australia’s legal system has seen incredible change in our courts and the legal profession over the last 107 years of Federation. At Federation there were fewer than 3,000 lawyers spread throughout Australia—and that is not why we call them the ‘good old days’—and there were only four universities in Australia that taught law, with fewer than 100 law students throughout Australia. But today, in 2008, how things have changed. Now there are more than 56,000 lawyers—

Christopher Pyne (Sturt, Liberal Party, Shadow Minister Assisting the Shadow Minister for Immigration and Citizenship) Share this | Link to this | Hansard source

Never enough.

Graham Perrett (Moreton, Australian Labor Party) Share this | Link to this | Hansard source

I say that having been a solicitor of the Supreme Court myself. And I take that interjection. With 56,000 lawyers—that is obviously the size of a big town in your electorate, Deputy Speaker Scott—there is more than one lawyer for every 350 people in Australia. That is a lot of lawyers; that is a lot of wigs. Just to add to that, there are now more than 27,000 law students enrolled at 28 different universities throughout Australia. I am not taking anything away from law students, having been a law student myself, and I would not want to upset the member for Braddon who sits alongside me, because his son Julian Sidebottom is doing law at the University of Tasmania law school. I am not casting any aspersions on any of these students or their motivations or aspirations. As I said, I was once one of them and my wife, Lea Scoines, is currently a law student—one of the 27,000. Nevertheless, when you add the 27,000 and the 56,000 lawyers already in the ranks, that will swell the legal ranks to more than 80,000 people, which is a pretty decent sized electorate, I guess. It is therefore appropriate that Commonwealth laws respond to and adapt to these significant changes in the legal profession—from 3,000 up to the now 80,000 lawyers. Obviously there is a lot more cause for lawyers to do work.

One of the great tenets of our Westminster system of government is the rule of law. It is equally as important as our parliament, I would suggest, in terms of protecting our democratic freedoms. The rule of law ensures that everyone, regardless of their rank or office, is subject to the same legal and judicial processes. It does not matter if they are a battler from Rocklea in my electorate or a millionaire from Bronte. It does not matter what their profession is or where they come from in life; they are all treated the same in the eyes of the law. That is why the statue of justice is blind. Everyone is treated the same.

The rule of law is very important. We are not Zimbabwe. Nobody gets to suspend the operation of our institutions because they are worried about how it might affect them. We are all subject to the same conditions. No-one is above the law and everyone must be treated fairly before the law. This strong legal principle has ensured good government in Australia for more than 100 years. The reality is, however, that Australia has changed significantly. Where there are duplications and inefficiencies in the legal systems, these costs are always passed on to the consumers—to the lawyers’ clients, normally. So it is important that we make the Australian legal system as simple as possible and as efficient and fast as possible. There is an old saying that when justice is delayed justice is denied. It is a maxim, however, with weighty resonance. If we look at some of the horrible examples over the years—such as David Hicks, who spent all of that time languishing in a prison—it throws out the notion of habeas corpus, which the Magna Carta advanced all those years ago.

The Evidence Amendment Bill before the House amends the Evidence Act 1995 to ensure that some states mirror these evidence laws. I say as a Queenslander that it is unfortunate that Queensland is not a part of this, but this is still an important first step. In making these amendments, this bill implements the recommendations of the Uniform evidence law report. Historically, state governments have retained much autonomy when it comes to legislative powers and laws. In horse and buggy times, when the Federation was crafted, that was totally appropriate. But, as I have indicated, things have changed and times have changed significantly. These powers are still guaranteed in the Australian Constitution, although federalism, as thought of by the founding fathers, has morphed significantly since the Constitution was drafted. Constitutional amendments, High Court decisions, changing interpretations of the Constitution and an increasing overlap of public policy areas at both levels of government have seen a shift in some elements of legal power away from the states.

A modern Australia is also much more interconnected through efficient travel and digital communications. Most modern companies do not see state borders. Increasingly, the residents of our states travel easily between the states. Mr Deputy Speaker, I think the town of Mungindi is in your electorate. I have played football against Mungindi, and the people of Mungindi did not see the river as being part of the border—except perhaps on state of origin night! People on the Gold Coast too travel easily back and forth between the states—the only inconvenience being when daylight saving occurs.

Peter Slipper (Fisher, Liberal Party) Share this | Link to this | Hansard source

And New Year!

Graham Perrett (Moreton, Australian Labor Party) Share this | Link to this | Hansard source

And at New Year, which is a good time for Queenslanders because we get to have two New Year’s Eve parties. That is true. As an example of the way things have changed, I have an AFL tipping competition on my webpage. When I was growing up I had no understanding of what AFL was—I was a rugby league tragic—but things have changed so much that I thought it would be inclusive if I had an AFL tipping competition. That shows how much the nation has changed since the days when the Federation was formed. Obviously federalism has served Australia well for more than 100 years—although I think many people are starting to realise that it could function even better. ‘The blame game’ is a phrase I heard often during the election campaign, but it is true that the Rudd government are committed to eliminating it. People do not care what level of government is responsible for which service; they just want a better, more efficient, more relevant government system. That is why the Rudd government have looked at, for example, addressing policy and regulatory duplication that leads to inconsistency and unnecessary complexity. Community and businesses face higher compliance costs as a result of multiple jurisdictions. This leads to public confusion about which level of government is responsible for what service. That was a part of the blame game that was played so often throughout Australia, but hopefully it is something to be consigned to the dustbin of history because, when it comes to all these inefficiencies, who bears the costs? More often than not it is the mum and dad, the battler, the consumer.

That is why it is great to see so much progress on this front over the last few years. For example, during the 1990s, efforts began to harmonise some policy and regulatory areas through the Council of Australian Governments, and I commend the former government and state governments for the great work that was done in that forum. I would especially like to commend former Attorney-General Ruddock on his efforts in the legal area. We have also seen greater national cooperation on rail, electricity, food standards and environmental protection. However, even these agreements have in some cases led to more complex arrangements between the federal and state authorities. Nevertheless, the Rudd government and our state counterparts are committed to a new era of cooperative governance.

This brings me to the main purpose of this bill, which is to harmonise state evidence laws. The Australian, New South Wales and Victorian law reform commissions found the uniform evidence laws were working well and that there were no major structural problems with the laws. You may have noted that I have not mentioned the Queensland Law Society, of which I am a member. However, I did speak to Sean Reedy from the Queensland Law Society and he indicated that he saw this legislation as being a part of the common-sense approach to achieving uniformity across Australia. But obviously these things take time and need a step-by-step approach. However, the recommendations from the Australian, New South Wales and Victorian law reform commissions were aimed at finetuning the evidence acts and developing uniform laws that are more coherent, more accessible and less complex and reform unsatisfactory and archaic aspects of the common law.

Greater national uniformity in evidence laws will have the most impact for courts, legal practitioners and business. Obviously once it comes to them they will not have to then pass those costs on to their clients and increase their bills. I repeat that, obviously, I am not having a go at lawyers or any of the people I formerly worked with in law firms. This efficiency will be there especially for interstate matters for those practitioners who work on interstate matters. It is not uncommon for companies to cross state borders. I will give one sad example of that which, unfortunately, occurred in my family. My brother Timothy Perrett, when he lived on the Gold Coast, was working on the Twin Towns Services Club—which, as anyone who has been to that club knows, is right on the border. In fact I think that at one stage the crane might have actually swung into Queensland from New South Wales while they were constructing that facility—I am not sure if that is a true story but it is one that has been told to me.

Unfortunately, on 29 November 1996 one of those cranes that my brother was working on, that he was directing the load in—he was working for a Queensland company 10 metres over the border in New South Wales—collapsed and killed the two men standing right beside him, Rod and Wayne. He asked me to remember them. Obviously there were lots of complications in that case. Not only were there deaths but my brother was also seriously injured. In pursuing compensation, because he was 10 metres over the border it was very hard to get a law firm to deal with the matter. In fact he had to deal with a Sydney law firm to go that 10 metres over the border, because of the problems with different WorkCover schemes and the like. I am very aware that this is just one example from 1996, but there are lots of other examples out there of companies which go back and forth across the borders or whose interests are national.

This bill introduces a number of reforms to finetune the evidence laws around the country—for example, the new section 41(1) lists the types of questions that must be disallowed. This includes questions that are: misleading or confusing; unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive; or put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate. Section 41(1) also expands the definition of disallowable questions which have no basis other than a sexist, racial or ethnic stereotype to include stereotypes based on age or mental, intellectual or physical disability. This initiative, when it eventually flows through to Queensland, will be especially appreciated in my electorate of Moreton, which is a very multicultural electorate, where one in three voters were born overseas.

I also welcome the provisions in this bill to make the hearsay rule more responsive to Aboriginal and Torres Strait Islander oral tradition. This is a great initiative where we are able to be more responsive to the particular nuances of that Aboriginal and Torres Strait Islander oral tradition, which has delivered so much richness to Australian culture. The intention is to make it easier for the court to hear evidence of traditional laws and customs where to do so is relevant and appropriate. This bill also pays special attention to evidence given by children and vulnerable witnesses. It makes it easier for children and elderly people with a cognitive impairment to give evidence, promotes use of narrative evidence and controls cross-examination.

As I said earlier, my wife is actually a law student at the moment but she does also have a day job. For the last 19 years she has worked in child protection. Unfortunately in child protection no-one phones up and says, ‘Everything’s fine here.’ They normally phone when there is a crisis, and unfortunately that means, humanity being as it is and at its worst, she has to spend a lot of time interviewing children. One of the many skills she has is the ability to interview children. She has other strange skills such as knowing how old a bruise is and all those other horrible skills that come with child protection work. As I said, she has been doing it for 19 years. It is a very tough job. In fact there was an article in the Courier Mail on the weekend by Darrell Giles which said:

New figures reveal that there have been almost 150 assaults and 375 threats against child safety officers in Queensland since 2005.

Obviously it is a pretty harrowing time when people knock on the door to interview children. Another example of this comes from an article in the Sydney Morning Herald which talks about the two babies who starved to death in suburbia. This took place in my electorate. Obviously it is a horrible tragedy. Who would have thought that the lives of Lily Rose and Zadie Vincent Matthews-Jackman would come to that. That is one of the things that child protection workers have to deal with. So any amendment to allow evidence that comes from children to be brought into court earlier or more easily is a good thing as far as I am concerned. This bill clarifies that a trial judge is not to give a warning about the reliability of the evidence of a child solely on account of the age of the child and also allows an appropriate warning to be given where the court is satisfied that a party has suffered a significant forensic disadvantage.

I also welcome the compellability provisions to replace the definition of de facto spouse with the gender neutral term ‘de facto partner’ to ensure same-sex and non-cohabiting couples are able to object to giving evidence against their partner in the same manner that married couples are able to. This important amendment is in keeping with our commitment to entrench equality in Australian law and follows the passing of the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008, which is still awaiting the blessing of those opposite. I am sure they will find it in their hearts to do the right thing in terms of bringing into force this legislation. I am hoping that the opposition will eventually see that decency and fairness are more important than cheap political expediency. This bill also alters the admissibility of expert evidence to allow courts to refer to expert opinion when considering the competence of witnesses and to provide a new exception to the credibility rule where a person has specialised knowledge based on the person’s training, study or experience—such as a child protection worker, as I mentioned previously.

Various provisions of the Evidence Act 1995 refer to a ‘lawyer’ without clarifying whether the term requires the person to hold a current practising certificate or whether it is sufficient that the person is admitted on the roll of the relevant court—something which would apply to many of the members in the chamber at the moment; the place seems to be full of lawyers. This bill amends paragraph 33(2)(c) to ensure that the section applies to lawyers with a valid—

Harry Jenkins (Speaker) Share this | Link to this | Hansard source

Order! It being 2 pm, the debate is interrupted in accordance with standing order 97. The debate may be resumed at a later hour and the member will have leave to continue speaking when the debate is resumed.