George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

I suppose it is a reflection on the way in which the parliament works, where all of the attention is directed only to matters of political controversy, that the Evidence Amendment Bill 2008 will pass through this chamber in a matter of a few minutes without any significant debate, yet the bill, which the opposition supports, is probably one of the most important pieces of legislation that this parliament will consider this year. It has a long history. As honourable senators would be aware, originally the whole of the law of evidence was judge made. But in 1979 the then Fraser government made a reference to the Australian Law Reform Commission to inquire into the possibility of the comprehensive rationalisation and reform of the rules of evidence. The ALRC produced a substantial research paper and draft legislation in 1985 and a final report on the possibility of uniform evidence legislation in Australia in 1987. In 1991 the Commonwealth government and the New South Wales government each introduced legislation substantially based on the ALRC’s draft. The parliaments of those two jurisdictions passed in 1993 evidence bills which came into effect from 1 January 1995. They are a model for the gradual process by which Australia’s rules of evidence will become both statutory and uniform, and that has happened in some but not all jurisdictions. The current bill is the first full-scale review of the operation of the 1995 legislation and it will bring into effect a number of very important changes.

To most people, I suspect, the rules of evidence would be a very dry and prosaic subject, but to me as a lawyer they are endlessly fascinating. I regard the law of evidence as being—along with the symphonies of Beethoven or the architecture of Christopher Wren or the poetry of John Milton or Einstein’s general theory of relativity—among the great achievements of the human mind. The complexity, the subtlety and the sophistication of the rules are indeed remarkable, and the manner in which legislative draftsmen have captured the complexity of those rules, which consist of a large number of categories, subcategories, sub-subcategories, exceptions and subexceptions, is a great tribute to them. The rules of evidence have been expressed by great legal textbook writers like James Bradley Thayer and Wigmore, in America, and by the incomparable Sir Rupert Cross, at Oxford University, who, like a 20th century Teiresias, laboured through blindness to create his monumental work on the law of evidence.

They have now been reduced to statutory form, and the statutory formulation in the 1995 bill has now been improved upon. But these are more than merely technical changes. Again, these are the sorts of things that perhaps could only get a lawyer very excited. There have been significant changes to the exceptions to the hearsay rule. There have been very important changes to the rules regarding the competence and compellability of witnesses. There have been important changes to the testing of the credit of witnesses. The question of privilege, which does trespass a little more beyond the technical legal nature of these changes, is also addressed in this bill.

For those of us who are interested in the rules of evidence—I suspect there are not all that many in the parliament—this is a very, very important day. This is a very, very important bill. The opposition hopes that it will speed the process towards the day when all of the Australian jurisdictions adopt a uniform set of rules. In closing, can I express the congratulations and appreciation of the opposition to those at the Australian Law Reform Commission, those in the Attorney-General’s Department and the legislative draftsmen who have brought this bill to fruition.

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary to the Minister for Health and Ageing) Share this | Link to this | Hansard source

I thank Senator Brandis for his contribution and acknowledge his knowledge and interest. I think those of us who are here in the chamber will recognise that we have all learnt an important lesson today, and I thank him for that.

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

I was just being self-indulgent, Senator McLucas.

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary to the Minister for Health and Ageing) Share this | Link to this | Hansard source

Oh, not at all. The Evidence Amendment Bill 2008 includes a number of amendments to improve the overall workability of the uniform evidence laws. In particular, the bill contains important reforms to make it easier for children and people with cognitive impairment to give evidence, by promoting the use of narrative evidence and disallowing improper questioning of vulnerable witnesses under cross-examination.

Other significant reforms contained in the bill include improving the procedure for taking oral evidence, including expert evidence, about the traditional laws and customs of Aboriginal or Torres Strait Islander people to accommodate the very form by which these laws and customs are maintained; and extending the compellability provisions in the Evidence Act to recognise that people involved in same-sex relationships should not be forced to give evidence against their partner unless a court is satisfied that there is a compelling reason to do so. This is consistent with the government’s commitment to remove same-sex discrimination in Commonwealth laws.

This bill is a significant step in progressing the harmonisation of evidence laws across Australia. As the Attorney-General has previously said, the Australian government is keen to encourage all jurisdictions to implement the model uniform evidence laws. This will result in a more uniform and coherent approach to evidence law and, in particular, reduce complexity and costs associated with juggling two evidence regimes in non-uniform Evidence Act jurisdictions. I commend the bill to the chamber.

Question agreed to.

Bill read a second time.