Shayne Neumann (Blair, Australian Labor Party) Share this | Link to 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)

Mark Dreyfus (Isaacs, Australian Labor Party) Share this | Link to this | Hansard source

I rise in support of the Evidence Amendment Bill 2008, which, as you have heard from the member for Blair, is concerned with amendments to the rules of evidence. The rules of evidence applied in Australia regulate the conduct of disputes in courts and tribunals. They determine the evidence which is admitted and the shape of both the form of proceedings and how courts and tribunals go about deciding disputes. The rules of evidence are a very important part of our system of justice.

Before going to the provisions of the bill, I will start by looking at some of the history of the legislation to which this bill makes amendments, the Evidence Act 1995. The Evidence Act 1995 was a very important milestone in the development of the Australian legal system. It represented a culmination of a task that was commenced by the Australian Law Reform Commission with a reference given to it in July 1979. Before then, the rules of evidence were largely part of the common law developed over many centuries by courts, particularly in the United Kingdom and, after settlement and the establishment of the rule of law in this country, by Australian courts. The rules of evidence could not in any sense have been described prior to the passage of the Commonwealth Evidence Act 1995 as coherent, nor were they well-structured. One English commentator, CP Harvey, described the law of evidence in these terms:

Founded apparently on the propositions that all jurymen are deaf to reason, that all witnesses are presumptively liars and that all documents are presumptively forgeries, it has been added to, subtracted from and tinkered with for two centuries until it has become less of a structure than a pile of builders’ debris.

That is a colourful way of describing the law of evidence but an accurate one. The complexity and need for substantial reform were well recognised, but the courts did not engage in the systematic reform that was needed, probably on the basis that it was a job for the legislature.

Stephen Odgers, who is one of Australia’s pre-eminent experts on the law of evidence, notes in the introduction to his excellent text in relation to the history of the legislation:

For many years, no legislature was prepared to take on such a mammoth task. However, the 1979 reference to the Australian Law Reform Commission created the possibility of comprehensive rationalisation and reform of the law of evidence.

The 1995 act is based on the Australian Law Reform Commission’s several reports produced over eight years through to 1987.

The reference given in 1979, as I have indicated, was to inquire into the possibility of comprehensive rationalisation and reform of the law of evidence. Running through to 1987 there were a series of research reports and discussion papers, an interim report and then a final report in 1987 produced by the Australian Law Reform Commission. That final report contained draft legislation.

The report was then followed in 1991 by the introduction of legislation by both the Commonwealth and New South Wales governments, which was substantially based on, albeit differing in some respects from, the Australian Law Reform Commission’s draft legislation, and in that same year, 1991, the Standing Committee of Attorneys-General gave in-principle support to a uniform legislative scheme throughout Australia.

In 1993 both this parliament and the New South Wales parliament passed an evidence bill which was to come into effect from 1 January 1995. Those acts are virtually identical and are often described as the uniform evidence acts. The Evidence Act which is to be amended by this bill, of course, applies in federal courts and, by agreement, in courts in the Australian Capital Territory. The Evidence Act of New South Wales applies in proceedings before New South Wales courts and in some tribunals.

In 2001 Tasmania passed legislation that essentially mirrors the Commonwealth and New South Wales acts, with some minor differences, and in 2004 Norfolk Island passed legislation that essentially mirrors the Evidence Act of New South Wales. As yet, no other state has adopted similar legislation, but there is a strong movement towards the harmonisation of evidence laws in other states which will be based on the uniform evidence acts. My home state of Victoria agreed in 2007 to introduce a uniform evidence act, and it is to be hoped that Victoria and other states will move quickly to adoption of the uniform evidence legislation.

Uniformity in this area, as the House has heard from the member for Blair and other speakers on the bill, is a very worthwhile aim. Certainly, as a practitioner I know that I can speak for every Australian lawyer and say that it would be far easier to have a single, uniform set of rules of evidence. At present, it is entirely possible for a practitioner to represent a client in the Federal Court in a civil trial, which is governed, of course, by the Commonwealth Evidence Act, and at the same time be representing the same client in a criminal trial arising from the same set of events in a state Supreme Court or a state court, where the trial is covered by quite different state rules of evidence. And it is not just practitioners who are troubled by having to juggle the different rules of evidence from day to day; all Australians should be able to work with a single set of rules for reasons of accessibility, to be able to determine what the law is and, simply, for comprehensibility.

There is not time to deal in any detail with the bill’s provisions, many of which are complex, so to anyone who wishes to see a long explanation of some of the reforms that are contained in this bill I can commend the report of the law reform commissions—that is, the Australian Law Reform Commission, the New South Wales Law Reform Commission and the Victorian Law Reform Commission, who jointly produced the 2005 report on which the bill is based. Before I turn to some of the provisions in this bill, I would acknowledge the work of the legal, policy and administrative officers of all of those law reform commissions who laboured on that report. I would also like to acknowledge the exceptional work of the members of the divisions of the three law reform commissions who worked on the 2005 report. I particularly wish to draw attention to the depth of their experience and their level of eminence in the legal profession, because this should give additional assurance to this parliament of the quality of the recommendations in the report on which this bill is based.

The division of the Australian Law Reform Commission which worked on the inquiry that produced the 2005 report included Professor David Weisbrot, the president of the commission; Professor Anne Finlay; Professor Les McCrimmon; Professor Brian Opeskin; notably, Justice Susan Kiefel, then a judge of the Federal Court but now a judge of the High Court of Australia; Justice Susan Kenny, formerly a judge of the Victorian Court of Appeal, and a serving judge of the Federal Court; and Justice Mark Weinberg, then a judge of the Federal Court of Australia but very recently appointed to the Victorian Court of Appeal.

The division of the New South Wales Law Reform Commission which worked on the inquiry included Justice Michael Adams, a New South Wales Supreme Court judge; Judge Christopher Armitage, at the District Court; James Bennett SC, a deputy Crown Prosecutor; Greg James QC, who is now President of the Mental Health Review Tribunal in New South Wales; Acting Judge Angela Karpin of the New South Wales District Court, who is currently a deputy president of the Administrative Decisions Tribunal; and Professor Michael Tilbury.

The division of the Victorian Law Reform Commission which worked on this inquiry included, again, a very eminent group of lawyers: Justice David Harper of the Victorian Supreme Court; Professor Marcia Neave, then the chairperson of the Victorian Law Reform Commission but now a member of the Victorian Court of Appeal; Iain Ross, who has recently been appointed a judge of the Victorian County Court; and, last but absolutely not least, Justice Tim Smith of the Victorian Supreme Court for whom working on this reference, I suspect, would have been a matter of particular personal satisfaction because Justice Smith was the commissioner in charge of the original work of the Australian Law Reform Commission through the 1980s which led to the report upon which the legislation which came into effect in 1995 was based.

The 2005 report on which this bill is based is indeed a credit to all involved in its production, and we should feel particularly indebted to the serving judges who found the time despite their work as serving judges to contribute to the report.

I will turn to some of the recommendations of the law reform commissions’ report which led to the provisions that we see in the Evidence Amendment Bill 2008. It is worth noting that the recommendations of the law reform commissions’ report are based on very wide consultation and indeed on the experience of 10 years of operation of the Commonwealth and New South Wales legislation in federal courts and in New South Wales courts respectively.

Before I do that, I will note the provenance of the report because it has a real significance over and above the recommendations that it contains. It is an unusual situation for the Australian Law Reform Commission to be required to work in conjunction with state law reform commissions, as occurred here—in this case, the Victorian Law Reform Commission and the New South Wales Law Reform Commission. The reason the report was produced in this way was that both of those state law reform commissions were conducting similar inquiries into the operation of the uniform Evidence Act, the Victorian inquiry being directed to determine whether or not it was appropriate to introduce the uniform act in Victoria. As I have indicated, the final report, which is entitled Uniform evidence law, completed by these three law reform commissions, was submitted to the Commonwealth Attorney-General and the New South Wales and Victorian attorneys-general on 5 December 2005. It was tabled in this parliament and the Victorian parliament and released in New South Wales on 8 February 2006.

The purpose of the inquiry was to identify and address any defects that had been disclosed in the nearly 10 years of operation of the uniform evidence acts and to maintain and further the harmonisation of the laws of evidence throughout Australia. The significant conclusion of this joint inquiry was that the uniform evidence acts were working well and that there were no major structural problems with the legislation or with the underlying policy of the acts. While, as anyone who reads the weighty report will note, there were some areas of concern identified—and they are addressed in the report—the commissions concluded that a major overhaul of the uniform evidence acts was neither warranted nor desirable. It would seem to me that that kind of conclusion, after an inquiry of the length and depth of this one, should add impetus to the push for uniformity of evidence laws throughout Australia.

There are many recommendations in the report. Most of them are taken up in the bill now before the House. It is to be noted that the New South Wales parliament has already passed legislation that will implement the recommendations of the report. The Attorney-General, in introducing this bill, indicated that a majority of the recommendations, incorporated as they have been in model evidence provisions produced by the Standing Committee of Attorneys-General through to 2007, will be implemented by the bill. There are a couple of exceptions to that, the first being the provisions and recommendations dealing with a general confidential relationships privilege and the provisions extending client legal privilege and public interest immunity to pre-trial proceedings. As the Attorney-General has explained, the government is still considering its response to the Australian Law Reform Commission’s recommendations relating to client legal privilege claims in federal investigations, which are dealt with in the very recently tabled report Privilege in perspective, which the Attorney-General tabled in January 2008. It deals with client legal privilege in a great deal more detail than the 2005 joint report of the law reform commissions, and that is why it is appropriate that there not be immediate reforms and changes to the uniform Evidence Acts in respect of that subject. I also note, as did the Attorney-General in introducing the legislation before the House, the election policy commitment made by the Australian Labor Party in a policy entitled Government information: restoring trust and integrity. That made commitments in respect of so-called journalist shield laws. Again, I look forward to working on implementation of those particular commitments. It is a set of further reforms that will make some changes to the uniform evidence acts.

I see that I am not going to have anything like the necessary time to deal with the provisions introduced by the bill before the House. However, I would like to mention the provisions which deal with competence. Competence is an area which shows perhaps better than any other area how much change there has been in the law of evidence over the last two or three centuries. In the 17th and 18th centuries the common-law rule, which to modern eyes seems an extraordinary one, was that parties to litigation were regarded as incompetent to give evidence. Presumably the position was motivated by a fear of manufactured evidence. That position was not changed for civil cases until the UK’s Evidence Act 1851, and in criminal cases it was not until the end of the 19th century that the accused was allowed to give evidence for the defence in all criminal cases. So anyone would see that we have had a very substantial shift from the position over the last couple of centuries to the position that we now have—a possibility of accused persons giving evidence for the defence in all criminal cases—and, of course, it is accepted now by everyone that parties to litigation, both the plaintiff and the defendant and those associated with them, are entirely able to give evidence. (Time expired)

Chris Hayes (Werriwa, Australian Labor Party) Share this | Link to this | Hansard source

The Evidence Amendment Bill 2008 marks an important step in evidence law in reforming the Evidence Act 1995 to harmonise evidence law based provisions giving form to the Uniform evidence law report of the Australian, New South Wales and Victorian law reform commissions. This bill also amends the Amendments Incorporation Act 1905 to provide a presumption that certain printed and electronic versions of the act, including compilations of the act, are an accurate record of those acts. That will in turn lead to greater efficiency and make it a little easier for our legal colleagues in the administration of justice and for the courts themselves.

In 2005 the New South Wales and Victorian law reform commissions were asked to inquire into the operations of the uniform evidence law regime. This inquiry was conducted over an 18-month period, with numerous consultations held right across the nation, and I am advised that 130 written submissions were taken from a wide range of individuals, organisations and professionals. As a result, a working group comprising representatives of all jurisdictions, with the exception of Queensland, considered and developed a model set of provisions with a view to creating greater national uniformity in evidence laws. This culminated in the report Uniform evidence law and this bill directly arises out of that report.

The commissioners found that the uniform evidence laws were working well and that there were no major structural problems with the laws or the underlying policy. However, they did recommend that there would be a number of finetuning aspects, if you like, to the Evidence Act and promoted uniform laws which are more coherent and accessible and less complex and which reform some of the probably more unsatisfactory and more archaic aspects of the common-law provisions.

In developing the bill, the Commonwealth has worked constructively with the states and territories through the Standing Committee of Attorneys-General. The standing committee established a working group to advise ministers on reforms arising out of the report. They also considered the report’s recommendations and developed model evidence provisions with a view to creating greater national uniformity in evidence laws. The model was considered by a panel of experts established by the Standing Committee of Attorneys-General, which recommended some of the modifications. In July 2007 the standing committee endorsed the final model bill.

The reforms in this bill will do a number of things, including promoting harmonisation between Australian jurisdictions; increasing the efficiency of our courts, legal practitioners and businesses; and, in turn, benefiting those in the community who have occasion to access those courts. This bill implements the majority of the Standing Committee of Attorneys-General’s model evidence provisions. However, it does not include the provisions regarding the implementation of a general confidentiality relationships privilege or the provisions extending the right of client privilege and public interest immunity to pre-trial proceedings. These matters have been well canvassed in the media of late but they are all subject to a further investigation. As I understand it, a report was compiled by the Australian Law Reform Commission, entitled Privilege in perspective, and tabled by the Attorney-General earlier this year. Given that the report made some significant recommendations in terms of the government, it is yet to be finalised. That being the case, the matters subject to that report have not been included in the direction of this bill. Many of the amendments proposed in this bill are largely technical. The bill contains a number of important reforms, including amendments to make it easier for the giving of evidence by children and people with cognitive impairment—and that is something I would like to address briefly during my short contribution to this debate.

The bill addresses the misconception that evidence from children is inherently less reliable than evidence from adults. Specifically the bill provides that a trial judge is not to give warnings about the reliability of the evidence of a child solely on account of the age of the child. In fact, recent research undertaken tends to indicate that, quite frankly, for some time in our legal system, a child’s cognitive and recall skills have been undervalued. For example, the Australian Law Reform Commission and particularly the Human Rights and Equal Opportunity Commission, in their joint report entitled Seen and heard: priority for children in the legal process, note that very young children are able to remember and retrieve from memory very large amounts of information, especially when the events are personally experienced or regarded as highly meaningful. These reforms have particular significance for a child witness when the child may have been the victim of the offence. The bill recognises that the standard question and answer format for giving evidence, particularly by children, may be somewhat unsuitable. That being the case, the bill seeks to promote the use of constructive narrative as opposed to leading a witness and to control cross-examination of vulnerable witnesses. It gives the court the flexibility to receive the best possible evidence in any trial. This bill introduces a duty on the court to disallow improper questions put to a witness during cross-examination, and this includes questions which may be misleading or unduly harassing, intimidating or offensive. It will replace those provisions of the existing act which permit a court to disallow such questions. Therefore, it imposes a duty.

For those reasons, I do commend the bill. I think what this bill does is highly significant in bringing about uniformity amongst our criminal justice jurisdictions. Certainly, it puts at the forefront the procedure for taking evidence from children and persons of intellectual impairment. It gives great weight to the use of narratives in adducing evidence, as opposed to direct cross-examination. This will be of great significance, as it has now been adopted by most jurisdictions throughout Australia, and it will serve to be the model by which criminal justice, particularly in relation to children related criminal matters, will proceed across the country. On that basis, I commend the bill.

Robert McClelland (Barton, Australian Labor Party, Attorney-General) Share this | Link to this | Hansard source

in reply—I would like to thank members for their contribution to the debate. The Evidence Amendment Bill 2008 is a significant step towards the harmonisation of evidence laws throughout Australia. The model Uniform Evidence Bill underwent extensive consultation both through the development of the Australian, New South Wales and Victorian law reform commissions report Uniform evidence lawand I congratulate them on their work and thank them in particular for their report—and the Standing Committee of Attorneys-General. In addition, a number of Commonwealth law enforcement and regulatory agencies were consulted by my department about the model provisions.

The amendments in this bill are largely technical and will have most impact on the courts and on legal practitioners. Promoting uniform evidence laws will increase efficiencies for the courts, legal practitioners and business, which, in turn, will benefit the broader community accessing the courts. The bill contains a number of important reforms, including amendments to make it easier for children and people with a cognitive impairment to give evidence by promoting the use of narrative evidence and disallowing improper questioning of vulnerable witnesses under cross-examination.

One of the most significant aspects of these reforms is provisions which will make it easier for children and people with an intellectual disability to give evidence before the courts. This is of particular significance where a child witness has been the victim of an offence and may know their offender. The reforms will also give courts greater control of cross-examination, including, for example, of victims of sexual assault. Of course, the changes do not alter existing discretions for the court to exclude evidence which may be unfairly prejudicial, misleading or confusing but, as mentioned, will provide greater accommodation for the needs of vulnerable witnesses in the context of the broader objectives of securing justice.

In addition to technical amendments, the bill also updates compellability provisions to provide that same-sex couples will be able to object to giving evidence against their partner in a criminal proceeding in the same way that currently exists for a married couple or a cohabiting de facto spouse. This implements part of the government’s announced reforms to remove discrimination in Commonwealth legislation against same-sex couples and their children. Likewise, de facto partners who may not cohabit but are in a genuine de facto relationship will have the same right to object to giving evidence against their de facto partner in a criminal proceeding as currently exists for a married spouse. This will cover situations where de facto partners are living apart as a consequence, for instance, of one partner working interstate. We believe these amendments reflect contemporary community views on this issue.

The bill also amends the exceptions to the hearsay and opinion rules so that oral evidence of the traditional laws and customs of an Aboriginal or Torres Strait Islander group is no longer treated as prima facie inadmissible when this is the very form by which these laws and customs are maintained—in other words, they are handed down from generation to generation orally by way of story and recount. This amendment will make it easier for the court to hear evidence of traditional laws and customs where relevant and appropriate. These amendments move away from a focus on whether there has been a technical breach of the hearsay and opinion rules because the evidence is handed down, as I have indicated, in oral form rather than in a written form and will instead focus on whether particular evidence is reliable.

The opposition has indicated its general support for the bill, and I welcome that. However, the opposition has referred the bill to a Senate committee for further consideration. Of course the government have no objection to that course of action when you are dealing with a technical subject matter, but, given the extensive consultation and consideration that has already been undertaken in the development of the bill itself, we are disappointed that the opposition has sought to set a reporting date of late September. We would certainly like the legislation passed earlier than that.

In conclusion, as the introduction of this bill highlights, the Commonwealth is committed to working with states and territories to achieve harmonisation of evidence laws across Australia. The New South Wales government has already passed evidence reform legislation based on the model provisions endorsed by SCAG. Indeed, I received particular representations from the New South Wales Attorney General, John Hatzistergos, encouraging the Commonwealth to move in the same direction. I congratulate and commend him and the New South Wales government on that move. I understand Victoria, Western Australia and the Northern Territory have also indicated that they are considering joining the uniform Evidence Act scheme. Again, I would certainly encourage those jurisdictions to follow through on that commitment.

The bill is an important step in progressing harmonisation of evidence laws across Australia, and I am keen to encourage all jurisdictions to implement the model Uniform Evidence Bill. This will result in a more uniform, coherent and accessible approach to evidence law, and reduced complexity and costs associated with juggling two evidence regimes in non-uniform Evidence Act jurisdictions. It will make legal practitioners more mobile and more effective as they travel around Australia and appear in separate jurisdictions.

I will certainly be encouraging Queensland and South Australia to join the rest of the nation by joining the uniform evidence acts scheme. When this occurs, the further harmonisation of the laws will be significantly advanced. Before I finish, I would like to table some minor amendments to the explanatory memorandum which address some cross-referencing issues that were in error in the primary explanatory memorandum.

Question agreed to.

Bill read a second time.