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2008
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
EVIDENCE AMENDMENT BILL 2008
EXPLANATORY MEMORANDUM
(Circulated by authority of the Attorney-General,
the Honourable Robert McClelland MP)
EVIDENCE AMENDMENT BILL 2008
GENERAL OUTLINE
This Bill amends the Evidence Act 1995 (the Act) to implement the majority
of the recommendations made by the Australian Law Reform Commission, New
South Wales Law Reform Commission and the Victorian Law Reform Commission
(the Commissions) in their inquiry into the operation of the uniform
Evidence Acts (the Report). The Report, entitled Uniform Evidence Law, was
released on 8 February 2006. The inquiry was conducted over an 18 month
period and commenced on the eve of the tenth anniversary of the
commencement of the Evidence Act 1995 (Cth) and the Evidence Act 1995
(NSW). Numerous consultations were held in every State and Territory, and
130 written submissions were received from a wide range of individuals and
organisations. At present, the Commonwealth, New South Wales, Tasmania,
the Australian Capital Territory (ACT) and Norfolk Island are all part of
the uniform Evidence Act regime.
The Commissions reported that the uniform Evidence Acts are working well
and there are no major structural problems with the legislation or its
underlying policy. They made a range of recommendations to 'fine tune' the
Acts and promote harmonisation between Australian jurisdictions.
In November 2005, the Standing Committee of Attorneys-General (SCAG)
established a working group to advise Ministers on reforms arising from the
Report. The working group considered the Report's recommendations and
developed model evidence provisions with a view to creating greater
national uniformity in evidence laws. An expert reference group
established by SCAG also commented on the model evidence provisions and
recommended modifications and departures from some of the recommendations.
The model evidence provisions were endorsed by SCAG in July 2007. As part
of a strategy to promote further harmonisation, the working group are
currently considering other possible reforms arising from the Report and
further developments in case law.
New South Wales has passed legislation implementing the model evidence
provisions. The Evidence Amendment Act 2007(NSW) was assented to on
1 November 2007 and will commence by proclamation, not before May 2008. It
is understood a number of other states are preparing legislation to
implement the provisions.
This Bill implements the majority of the model evidence provisions. The
Bill does not include the provisions implementing a general confidential
relationships privilege or the provisions extending client legal privilege
and public interest immunity to
pre-trial proceedings.
The December 2007 ALRC Report 107 Privilege in Perspective on client legal
privilege and federal investigatory bodies recommended that a separate Act
be created to cover various aspects of the law and procedure governing
client legal privilege claims in federal investigations. It noted the
Report's approach but did not make broader recommendations about the
extension of privilege in other areas. A Government response to that
report is being considered. It is appropriate to defer extension of these
privileges until the Government response has been finalised.
The amendments in this Bill are largely technical and will have most impact
on the courts and legal practitioners. They promote uniform evidence laws
to increase efficiencies for the courts, legal practitioners and business.
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, to promote the use of narrative evidence and to control cross-
examination of vulnerable witnesses.
Schedule 1 of this Bill implements the model evidence provisions.
Key changes in Schedule 1 are to:
. the hearsay rule - to provide further guidance on the definition of
hearsay evidence, for example when an assertion is intended; and to
clarify the operation of the section 60 exception for evidence
relevant for a non-hearsay purpose
. the admissibility of expert evidence - so that expert opinion can be
used by a court to inform itself about the competence of a witness 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
. admissions in criminal proceedings - to ensure that evidence of
admissions in criminal proceedings that is not first-hand is excluded
from the ambit of section 60; and that the reliability of an admission
made by a defendant is tested where that admission is made to or in
the presence of an investigating official performing functions in
connection with the investigation or as a result of an act of another
person capable of influencing the decision whether to prosecute
. coincidence evidence - to reduce the threshold for admitting
coincidence evidence to require consideration of similarities in
events or circumstances, rather than the existing threshold that there
be similarities in both the events and the circumstances
. credibility of witnesses - to ensure that evidence which is relevant
both to credibility and a fact in issue, but not admissible for the
latter purpose, is subject to the same rules as other credibility
evidence; and to enable evidence to be adduced with the leave of the
court to rebut denials and non-admissions in cross-examination
. compellability provisions - to ensure same-sex couples are treated in
the same manner as de facto spouses, this includes replacing the
definition of 'de facto spouse' with the gender neutral phrase 'de
facto partner'
. hearsay and opinion rules - to create a new exception for
evidence/opinion given by a member of an Aboriginal or Torres Strait
Islander group about the existence or non-existence, or the content,
of the traditional laws and customs of the group.
. advance rulings on evidentiary issues - to make it clear that the
court has the power to make an advance ruling or make an advance
finding in relation to any evidentiary issue
. warnings and directions to the jury - to make it clear 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 to clarify
the scope of information to be given to the jury about the forensic
disadvantage a defendant may have suffered because of the consequences
of delay, and the circumstances in which such information is to be
given, and
. the manner and form of questioning witnesses - to enable a court on
its own motion to direct that a witness give evidence wholly or partly
in narrative form and to make further provision with respect to the
improper questioning of witnesses in cross-examination in civil and
criminal proceedings.
Schedule 2 of the Bill implements amendments that are specific to the
Commonwealth. Many of these are consequential to other amendments in
Schedule 1 to implement the model evidence provisions. The opportunity has
also been taken to update cross references to ACT legislation.
Schedule 3 of the Bill implements amendments to provide for certain printed
and electronic versions of Acts (including compilations of Acts) to be
taken to be an accurate record of those Acts, unless the contrary is
proven. The Bill also provides that printed compilations of Acts include
amendments by either Acts or legislative instruments. These amendments
will be made to the
Amendments Incorporation Act 1905, which the Bill will rename as the
Acts Publication Act 1905. This will mean there is one central piece of
legislation relating to both the printed and electronic publications of
Acts. These amendments will improve the accessibility of freely available
authoritative information about Australia's laws and will allow courts to
rely on electronic versions of Commonwealth Acts.
Section 22 of the Legislative Instruments Act 2003 already provides that
all regulations and other legislative instruments (including compilations)
registered on the Federal Register of Legislative Instruments are to be
taken as complete and accurate records unless the contrary is proven.
Financial Impact
The Bill will have no significant financial impact.
NOTES ON CLAUSES
Clause 1 - Short title
This clause provides for the Bill to be cited as the Evidence Amendment Act
2008.
Clause 2 - Commencement
This clause contains a table which sets out when each of the provisions of
the Bill commences.
Sections 1 to 3 will commence upon Royal Assent. Schedules 1 and 2 will
commence 28 days after this Act receives Royal Assent to ensure time for
registration of this Act on the Federal Register of Legislative
Instruments.
Schedule 3 will commence on the earlier of a day to be fixed by
Proclamation or on the first day after the end of 12 months from the day on
which the Act receives Royal Assent. This delay in commencement is to
ensure that the Office of Legislative Drafting and Publishing has
sufficient time to prepare for electronic compilations of Acts to be
included in an Acts database.
SCHEDULE 1 - UNIFORM EVIDENCE AMENDMENTS
Part 1 - Amendments
Item 1 - Subsection 4(1)
Item 1 amends subsection 4(1) of the Evidence Act 1995 (the Act), which
sets out the courts and proceedings to which the Act applies. This item
implements recommendation 2-4 of the Report.
Item 1 omits the words 'in relation' from the phrase 'in relation to all
proceedings'. The evidentiary rules prescribed in the Act only apply in
the course of a hearing of a proceeding in a court. There is no
'proceeding' outside of the courts identified in section 4 to which the
'proceedings' can 'relate'. The words 'in relation' are therefore
unnecessary.
Item 2 - At the end of subsection 4(1)
Item 2 adds a note to section 4. This clarifies that evidence rules of the
State or Territory apply in the relevant State or Territory court
exercising federal jurisdiction. This item relates to recommendation 2-5
of the Report.
The note explains that section 79 of the Judiciary Act 1903 should be
referred to when determining the application of the Act to proceedings in a
State or Territory court exercising federal jurisdiction. Section 79 of
the Judiciary Act provides that the 'laws of each State or Territory,
including the laws relating to procedure, evidence, and the competence of
witnesses, shall, except as otherwise provided by the Constitution or the
laws of the Commonwealth, be binding on all Courts exercising federal
jurisdiction in that State or Territory in all cases to which they are
applicable'.
Item 3 - Section 13
Item 3 repeals and replaces current section 13 and sets out a new test for
determining a witness's competence to give sworn and unsworn evidence.
This implements recommendations 4-1 and 4-2 of the Report and focuses on
the ability of a person to act as a witness.
Current section 13 contains two different tests for giving sworn and
unsworn evidence, which both require a witness to demonstrate an
understanding of the difference between truth and lies. The Report noted
that these tests have been criticised for being too similar and
restrictive. The adopted approach clarifies the distinction between sworn
and unsworn evidence.
New section 13 provides that all witnesses must satisfy the test of general
competence in subsection 13(1). This test of general competence moves away
from the 'truth and lies' distinction and focuses instead on the ability of
the witness to comprehend and communicate. The purpose of the revised test
of general competence is to enhance participation of witnesses and to
ensure that relevant information is before the court.
The revised test of general competence provides that a person is not
competent to give sworn or unsworn evidence about a fact if the person
lacks the capacity to understand, or to give an answer that can be
understood, to a question about the fact, and that incapacity cannot be
overcome. When considering whether incapacity can be overcome, the court
should consider alternative communication methods or support depending on
the needs of the individual witness. The note to the provision makes a
cross reference to sections 30 and 31 of the Act which provide examples of
assistance that may be provided. If, for example, a person has a hearing
disability, this incapacity could be overcome by the use of a sign language
interpreter, providing a hearing inducting loop, allowing evidence in
narrative form or providing captioning.
New subsection 13(2) provides that even if the general test of competence
is not satisfied in relation to one fact, the witness may be competent to
give evidence about other facts. For example, a young child may be able to
reply to simple factual questions but not to questions which require
inferences to be drawn.
New subsection 13(3) provides that a person is not competent to give sworn
evidence if he or she does not have the capacity to understand that he or
she is under an obligation to give truthful evidence. This restates
current subsection 13(1).
New subsection 13(4) provides that, subject to the requirements of
subsection 13(5) being met, a person who is not competent to give sworn
evidence about a fact may provide unsworn evidence about the fact. The
provision will allow young children and others (for example, adults with an
intellectual disability) to give unsworn evidence even though they do not
understand or cannot adequately explain concepts such as 'truth'. It is up
to the court to determine the weight to be given to unsworn evidence.
New subsection 13(5) provides that if a person is not competent to give
sworn evidence, then he or she may be able to give unsworn evidence. A
number of criteria must be met for this to happen: first, the person must
be competent to give evidence under subsection 13(1). Secondly, the court
is required to inform the person that it is important to tell the truth,
that he or she should inform the court if asked a question to which he or
she does not know, or cannot remember the answer, and that he or she should
not feel pressured into agreeing with any statements that are untrue.
New subsection 13(6) provides that a person is presumed to be competent to
give evidence unless it is proven that he or she is incompetent. This
provision restates current subsection 13(5).
New subsection 13(7) provides that evidence given by a witness is not
inadmissible solely on the basis that the witness dies or is no longer
competent to give evidence. This provision restates current subsection
13(6).
New subsection 13(8) provides that, when a court is determining if a person
is competent to give evidence, the court may inform itself as it thinks
fit, including by referring to the opinion of an expert. This provision is
not intended to allow an expert to supplant the court's role in determining
a witness's competence. Rather it is intended to emphasise that the court
may have recourse to expert assistance (for example, to identify any
alternative communication methods or support needs which could facilitate
the giving of evidence by a person with a disability).
Item 4 - Paragraph 14(a)
Item 4 amends current paragraph 14(a) by replacing the words 'be capable of
hearing or understanding, or of communicating replies to, questions on that
matter', with 'have the capacity to understand a question about the matter
or to give an answer that can be understood to a question about the
matter'. This item implements recommendation 4-3 of the Report.
This is a consequential amendment arising out of item 3 which introduces a
general test of competence into section 13. This amendment ensures the
terminology used in sections 13 and 14 is consistent.
Item 5 - Subsection 18(2)
Item 5 amends current subsection 18(2) by replacing the words 'de facto
spouse' with 'de facto partner'. This item implements recommendation 4-4
of the Report. The amendment ensures that the terminology relating to de
facto relationships is gender neutral and that the section applies to same-
sex couples. The definition is only intended to cover types
of relationships where the two persons have a relationship as a couple.
Item 6 - Paragraph 20(3)(a)
Item 6 amends current paragraph 20(3)(a) by replacing the words 'de facto
spouse' with 'de facto partner'. This item implements recommendation 4-4
of the Report. The amendment ensures that the terminology relating to de
facto relationships is gender neutral and that the section applies to same-
sex couples in particular. The definition is only intended to cover types
of relationships where the two persons have a relationship as a couple.
Item 7 - Subsection 20(4)
Item 7 amends current section 20(4) by replacing the words 'de facto
spouse' with 'de facto partner'. This item implements recommendation 4-4
of the Report. The amendment ensures that the terminology relating to de
facto relationships is gender neutral and that the section applies to same-
sex couples in particular. The definition is only intended to cover types
of relationships where the two persons have a relationship as a couple.
Item 8 - Paragraphs 20(4)(b) and 20(5)(b)
Item 8 amends paragraphs 20(4)(b) and 20(5)(b) by replacing the words 'de
facto spouse' with 'de facto partner'. This item implements recommendation
4-4 of the Report. The amendment ensures that the terminology relating to
de facto relationships is gender neutral and that the section applies to
same-sex couples in particular. The definition is only intended to cover
types of relationships where the two persons have a relationship as a
couple.
Item 9 - Subsection 21(2)
Item 9 amends current section 21 by removing the reference to subsection
13(2) and replacing it with a reference to section 13. This is a
consequential amendment arising from item 3 which introduces a general test
of competence into section 13.
Current section 21 provides that a witness who gives unsworn evidence
under subsection 13(2) is not required to take an oath or make an
affirmation before giving that evidence.
Item 10 - Subsection 29(2)
Item 10 repeals and replaces current subsection 29(2). This item
implements recommendation 5-1 of the Report. This amendment gives the
court flexibility to receive the best possible evidence without the need
for application by a party.
Section 29 deals with the manner and form of questioning witnesses and
their responses. The primary way in which witnesses are examined is the
question and answer format. However, this method of giving evidence may be
unsuitable for a number of witnesses, such as children, people with an
intellectual disability and other people who may not be accustomed to this
style of communication. Accordingly, the Act allows a witness in certain
circumstances to give evidence wholly or partially in narrative form, that
is, as a continuous story in his or her own words.
Item 10 modifies the existing requirement that a party must apply to the
court for a direction that the witness may give evidence in narrative form.
New subsection 29(2) provides that a court may, on its own motion or on
application, direct that the witness give evidence wholly or partly in
narrative form.
Should the process result in undue delay or inadmissible evidence being
given, the court has general powers to control proceedings, and specific
powers under sections 135, 136 and 137 to exclude or limit the use of
evidence.
New subsection 29(2) does not affect the ability of a witness to give
evidence through an interpreter under section 30 or to be questioned or
give evidence by an appropriate means under section 31.
Item 11 - Paragraph 33(2)(c)
Item 11 removes the term 'lawyer' from paragraph 33(2)(c) and substitutes
it with 'Australian legal practitioner, or legal counsel'.
Various provisions of the Act currently refer to a 'lawyer', which is
defined in the Dictionary as a barrister or solicitor. It has been unclear
whether that 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. This amendment ensures that the section
applies to lawyers with a valid practising certificate, as well as 'legal
counsel', that is, lawyers who do not have a current practising certificate
but are otherwise permitted to practise in that jurisdiction. The terms
'Australian legal practitioner' and 'legal counsel' are defined in the
Dictionary by items 80 and 88 respectively.
The amendments at items 12, 58, 66, 67, 76 and 77 also replace the terms
'lawyer' or 'lawyers' with more specific definitions which are consistent
with model National Legal Profession laws.
Item 12 - Paragraph 37(1)(c)
Item 12 removes the words 'a lawyer' from current paragraph 37(1)(c) and
replaces them with 'an Australian legal practitioner, legal counsel or
prosecutor'.
Section 37 deals with leading questions in examination and cross-
examination of witnesses. This amendment ensures that this section will
cover lawyers with a valid practising certificate, lawyers who are
otherwise permitted to practise in that jurisdiction and non-lawyers
authorised to conduct prosecutions (such as police prosecutors). A new
definition of 'prosecutor' is included in the Dictionary by item 91.
Item 13 - Section 41
Item 13 repeals and replaces current section 41 which permits the court to
disallow improper questions put to a witness in cross-examination. New
section 41 requires the court to disallow improper questions. This item
implements recommendation 5-2 of the Report. The Report concluded that the
use of current section 41 to control improper questions was patchy and
inconsistent and that more protection for vulnerable witnesses was needed.
The amendment to section 41 is not identical to the terms of section 275A
of the Criminal Procedure Act 1986 (NSW) and therefore departs slightly
from recommendation 5-2. However, this departure was recommended by the
working group, approved by the expert reference group and is part of the
model evidence provisions endorsed by SCAG.
Like section 275A, the new subsection 41(1) describes 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, put to the witness in a
manner or tone that is belittling, insulting or otherwise inappropriate.
Section 275A also prohibits questions which have no basis other than a
sexist, racial, cultural or ethnic stereotype. The new subsection 41(1)
expands on this by prohibiting questions which have no basis other than a
stereotype, including stereotypes based on age and mental, intellectual or
physical disability.
New subsection 41(2) lists the factors which may be taken into account in
determining whether a question should be disallowed. Factors include (but
are not limited to) the witness's age, education, ethnic and cultural
background, gender, language background and skills, level of maturity and
understanding and personality. This list of factors in new subsection
41(2) is more extensive than the list in current subsection 41(2).
The amendments to current paragraphs 41(2)(a) and 41(2)(b) clarify that
the court can both observe the relevant characteristics of the witness or
be advised of them by counsel when determining whether a question should be
disallowed.
The new subsection 41(3) provides that a question is not disallowable
merely because it challenges the truthfulness of the witness or the
consistency or accuracy of any statements made by the witness, or is
considered by the witness to be distasteful or private.
The new subsection 41(4) provides a party may object to a question put to
a witness on the ground that it is a disallowable question.
The amendment to subsection 41(5) provides that the duty imposed by
section 41 on the court applies regardless of whether or not an objection
is raised to a particular question.
New section 41 applies to both civil and criminal proceedings. A failure
by the court to disallow a question under section 41 will not affect the
admissibility of the witness's answer (subsection 41(6)). The note at the
bottom of the section provides a cross reference to section 195 which
prohibits the publication of disallowed questions unless the express
permission of the court has been obtained.
Subsection 275A(7) of the Criminal Procedure Act has not been adopted
because section 41 is to apply to both civil and criminal proceedings.
Subsection 275A(8) of the Criminal Procedure Act has not been adopted
because section 195 already prohibits the publishing of disallowed
questions.
Subsection 275A(9) of the Criminal Procedure Act, which defines 'criminal
proceedings', has not been adopted because the definition is only relevant
to the Criminal Procedure Act.
Item 14 - Subsection 50(1)
Item 14 repeals and replaces current subsection 50(1) to allow an
application to rely on a summary of documents to be made at any time in
proceedings. This item implements recommendation 6-1 of the Report and
addresses concerns raised by the Commonwealth Director of Public
Prosecutions to the Commissions.
Current paragraph 50(1)(a) only allows proof of contents of voluminous or
complex documents by the tender of a summary where an application is made
before the commencement of the hearing. Preparation of a summary may be
overlooked before a hearing commences, or not be completed in time. In
some cases, it may only become apparent once evidence begins to be adduced
that a summary could streamline proceedings and assist the court. New
subsection 50(1) allows applications to rely on summary documents to be
made during a hearing. An application may still be rejected if it is
opposed and evidence of prejudice or disadvantage is demonstrated by the
opposing party.
Item 15 - Chapter 3 (Introductory note)
Item 15 amends the introductory note to Chapter 3 by removing the words
'Part 3.11 gives courts discretions to exclude evidence' and replacing them
with 'Part 3.11 provides for the discretionary and mandatory exclusion of
evidence'. This item relates to recommendation 16-1 of the Report.
The new heading reflects that fact that section 137 is a mandatory and not
a discretionary exclusion.
Item 16 - Chapter 3 (Introductory note, diagram)
Item 16 amends the diagram under the Chapter 3 introductory note by
removing the words 'Should a discretion to exclude evidence be exercised?'
and replacing them with 'Should a discretion to exclude the evidence be
exercised or must it be excluded?' This item relates to recommendation 16-
1 of the Report.
This is a technical amendment which reflects that Part 3.11 contains both
discretionary and mandatory exclusions.
Item 17 - Subsection 59(1)
Item 17 amends current subsection 59(1) by inserting the words 'it can
reasonably be supposed that' after 'a fact that'. Along with item 18, this
amendment implements recommendation 7-1 of the Report.
New subsection 59(1) provides expressly that, in determining whether a
person intended to assert the existence of facts contained in a previous
representation, 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. The test proceeds on the basis that intention may be
properly inferred from the external and objective manifestations normally
taken to signify intention. Although direct evidence of subjective
intention can be considered, investigation or proof of the subjective
mindset of the person who made the representation is not required.
This amendment (along with item 18) is intended to provide further
guidance on the definition of hearsay evidence and prevent courts adopting
differing approaches to determining 'intention' (see discussion of R v
Hannes in item 18).
Item 18 - After subsection 59(2)
Item 18 inserts a new subsection 59(2A) to clarify what the court should
consider in determining the meaning of 'intention'. Along with item 17,
this amendment implements recommendation 7-1 of the Report.
Section 59 excludes evidence of a previous representation for the purpose
of proving a fact which the maker intended to assert by the representation.
This amendment provides that, for the purposes of section 59, in
determining whether a person intended to assert the existence of facts
contained in a previous representation, the test to be applied is what a
person in the position of the maker of the representation can reasonably be
supposed to have intended, having regard to the representation and the
circumstances in which the representation was made.
This amendment is intended to counter the approaches to determining
'intention' explored by the NSW Supreme Court in R v Hannes (2000) 158 FLR
359. According to Spigelman CJ's reasoning in that case, an 'intended'
fact could include (1) facts specifically and consciously adverted to by
the maker, as well as (2) any fact which is a necessary assumption
underlying the fact subjectively adverted to. This reasoning is
problematic because proof of a subjective state of mind is very difficult
to ascertain, and particularly so if a party must argue that the
representation was not intended to assert the existence of a particular
fact. Secondly, the policy of the Act is to exclude unintended assertions
from the rule against hearsay. There is a risk that the reasoning in
relation to necessary assumptions is too broad and could therefore give
rise to practical difficulties. There is also a risk that it would result
in the exclusion of relevant evidence of implied assertions assumed by a
fact adverted to, even though the implied assertion, when considered
independently of the adverted fact it supports, could not reasonably be
supposed to have been intended.
Item 19 - Subsection 59(3) (note)
Item 19 amends the notes to subsection 59(3).
Section 59 states the hearsay rule which provides for the exclusion of
hearsay evidence. The notes under section 59 contain cross references to
specific exceptions to this rule. Item 19 is a consequential amendment
which updates references to 'telecommunications' with 'electronic
communications' to reflect amendments made to section 71 by item 33 and
updates the section reference for contemporaneous statements about a
person's health to reflect amendments made by items 32 and 34 which re-
enact current section 72 as new section 66A and item 34 which inserts a new
section 72 related to evidence of Aboriginal and Torres Strait Islander
traditional laws and customs.
Item 20 - Section 60
Item 20 inserts '(1)' before the words 'The hearsay rule' in section 60.
This is a result of item 22, which inserts new subsections 60(2) and 60(3).
This item is a consequential amendment arising from recommendation 7-2 of
the Report.
Item 21 - Section 60
Item 21 amends section 60 which contains an exception to the hearsay rule
when evidence is relevant for a non-hearsay purpose. The current reference
to 'the fact intended to be asserted by the representation' is replaced
with 'an asserted fact'. This item relates to recommendation 7-2 of the
Report.
This item ensures that the amendments inserted into section 59 by items 17
and 18 which clarify the meaning of intention also apply to section 60.
Item 22 - At the end of section 60
Item 22 inserts new subsections 60(2) and (3). This item implements
recommendations 7-2 and implements in substance recommendation 10-2 of the
Report. Section 60 contains an exception to the hearsay rule for evidence
that is admitted for a non-hearsay purpose.
New subsection 60(2) is a response to the decision of Lee v the Queen
(1998) 195 CLR 594 in which the High Court held that section 60 does not
make admissible evidence of a representation the truth of which the witness
did not intend to assert. Lee has been interpreted to mean that second-
hand and more remote hearsay does not fall within section 60. As a
consequence, evidence of unintended implied assertions or second-hand
hearsay may now be treated as subject to the hearsay rule. However,
section 60 was not intended to be limited to first-hand hearsay, either in
relation to prior statements or in relation to the factual basis of expert
evidence.
New subsection 60(2) clarifies that section 60 operates to permit evidence
admitted for a non-hearsay purpose to be used to prove the facts asserted
in the representation, whether the evidence is first-hand or more remote
hearsay. That is, whether or not the person had first hand knowledge based
on something they saw, heard or otherwise perceived.
New subsection 60(3) inserts a safeguard to ensure that evidence of
admissions in criminal proceedings that is not first-hand is excluded from
the scope of section 60. This amendment implements recommendation 10-2 of
the Report, but it does so by amendment to section 60 rather than by
amendment to section 82.
Admissions can be highly persuasive to juries and highly prejudicial to the
accused. It is therefore important to ensure the reliability of
admissions. The note to subsection 60(3) provides that the admission
evidence might still be admissible under section 81 of the Act if it is
first-hand hearsay. The note provides a cross reference to section 82 as
this provision deals with the exclusion of evidence of admissions that is
not first-hand.
Item 23 - Subsection 61(1)
Item 23 repeals and replaces current subsection 61(1) to align the
exception to the hearsay rule dependent on competency with new section 13.
This item implements recommendation 4-3 of the Report.
This is a consequential amendment arising out of item 3 which repeals and
replaces section 13 and sets out a new test for determining a witness's
competence to give sworn and unsworn evidence. This item ensures that the
terminology used in subsection 61(1) is consistent with the new test
expressed in section 13.
Item 24 - Subsection 61(2) (note)
Item 24 amends the note in subsection 61(2) by changing the cross-
reference from current section 72 to new section 66A. This item relates to
recommendation 8-5 of the Report.
This is a consequential amendment arising out of item 32 which re-enacts
current section 72 as new section 66A.
Item 25 - At the end of section 62
Item 25 inserts a new subsection 62(3) to align section 62 with new
section 66A. This item relates to recommendation 8-5 of the Report.
Subsection 62(2) defines 'previous representation' in terms which are not
wide enough to cover all the matters referred to in the new section 66A,
such as intention or knowledge. New subsection 62(3) ensures that all
previous representations under section 66A are considered first-hand
hearsay. This is a consequential amendment arising out of item 32
(contemporaneous statements about a person's health).
Item 26- Paragraph 64(3)(b)
Item 26 amends paragraph 64(3)(b) by omitting 'made;' and substituting it
with 'made.'
This item is a consequential amendment arising out of item 27 which omits
all of the words following 'made' in paragraph 64(3)(b).
Item 27- Subsection 64(3)
Item 23 amends current subsection 64(3) which provides an exception to the
hearsay rule in civil proceedings when the maker of the representation is
available. This item implements recommendation 8-1 of the Report.
The effect of this item is to remove the requirement that the exception
only applies if the occurrence of the asserted fact was fresh in the memory
of the person who made the representation at the time when the
representation was made. The Report considered that, in practice, the
requirement of freshness in memory is not considered an important indicator
of evidentiary reliability. However, the court may still take this factor
into account in determining the weight to be given to the evidence, and
whether to exclude or limit the use of the evidence under sections 135
through 137.
Item 28 - Subsection 65(2)
Item 28 amends subsection 65(2) by omitting the word 'was' from the phrase
'if the representation was' to improve the drafting of this provision.
Item 29 then re-inserts the word 'was' at the beginning of paragraphs (a),
(b) and (c) to improve the clarity of these provisions.
This item is a consequential amendment arising out of item 30.
Item 29 - Paragraphs 65(2)(a), (b) and (c)
Item 29 amends paragraphs 65(2)(a), (b) and (c) by inserting the word 'was'
to improve the clarity of these provisions.
This item is a consequential amendment arising out of item 30.
Item 30 - Paragraph 65(2)(d)
Item 30 repeals and replaces current paragraph 65(2)(d) and introduces a
second limb to the hearsay rule exception relating to previous
representations in criminal proceedings when the maker is not available.
This item implements recommendation 8-3 of the Report.
The current paragraph 65(2)(d) only contains one limb and provides that
the hearsay rule does not apply to a previous representation made against
the interests of the maker at the time it was made. The assumption behind
this provision was that where a statement is against the interests of the
person who made it, this provides an assurance of reliability. However,
where the person who made the statement is an accomplice or co-accused,
this may not be the case. An accomplice or co-accused may be motivated to
downplay the extent of his or her involvement in relevant events and to
emphasise the culpability of the other. An accomplice or co-accused may be
more inclined to take such a course where, for example, they have immunity
from prosecution. Then, the fact that the representation is against self-
interest is no longer a reliable safeguard or indicator of reliability.
This item adds the requirement that a representation which is made against
the interests of the maker should also be made in circumstances that make
it likely that the representation is reliable. The provision is not
restricted to accomplices and
co-accused, as statements against interest may arise in other situations.
Item 31 - After subsection 66(2)
Item 31 inserts a new subsection 66(2A). This item implements
recommendation 8-4 of the Report and is a response to Graham v The Queen
(1998) 195 CLR 606.
New subsection 66(2A) clarifies that the 'freshness' of the memory of a
witness in criminal proceedings who has made a previous representation may
be determined by a wide range of factors in addition to the temporal
relationship between the occurrence of the asserted fact and the making of
the representation. For example, the Report referred to psychological
research showing that the nature of an event should be considered in
determining 'freshness' of memory. The nature of the event and the age and
health of the person are included as examples of the considerations which
may be relevant to an assessment of 'freshness'.
Item 32 - After section 66
Item 32 re-enacts existing section 72 as new section 66A. This item
implements recommendation 8-5 of the Report.
New section 66A contains an exception to the hearsay rule for
contemporaneous statements about a person's health, feelings, sensations,
intention, knowledge or state of mind. The section was previously located
in Division 3 of Part 3.2, which is titled 'Other exceptions to the hearsay
rule'. This section has been moved to Division 2 to clarify that the
provision is limited to first-hand hearsay. Similarly, the reference to a
'representation' has been replaced with a reference to a 'previous
representation', to be consistent with Division 2 and to limit the section
to first-hand hearsay. The exception should not apply to second-hand and
more remote forms of hearsay. The Report found that that the exception is
only justifiable if there is reason to think that the evidence is reliable.
Cross-examination of the person who had personal knowledge of the fact
asserted in the representation would allow the court to assess that
reliability.
Item 33 - Section 71
Item 33 repeals and replaces current section 71. The amendment replaces
the words 'a document recording a message that has been transmitted by
electronic mail or by a fax, telegram, lettergram or telex' with 'a
document recording an electronic communication'. This item implements
recommendation 6-2 of the Report.
New section 71 allows for a broader and more flexible definition of the
technologies which fall within the exception to the hearsay rule for
telecommunications. This definition is not device-specific or method-
specific and embraces all modern electronic technologies. It is also
sufficiently broad to capture future technologies. Item 86 inserts a
definition of 'Electronic communication' into the Dictionary.
Item 34 - section 72
Item 34 repeals and replaces section 72 with a new exception to the
hearsay rule for evidence of a representation about the existence or non-
existence, or the content, of the traditional laws and customs of an
Australian Aboriginal or Torres Strait Islander group. The item implements
recommendation 19-1 of the Report.
The Report found that the Act should be amended to make the hearsay rule
more responsive to Aboriginal and Torres Strait Islander oral tradition.
It is not appropriate for the legal system to treat orally transmitted
evidence of traditional law and custom as prima facie inadmissible, when
this is the very form by which law and custom are maintained under
indigenous traditions.
The intention is to make it easier for the court to hear evidence of
traditional laws and customs, where relevant and appropriate. The
exception inserted by item 34 shifts the focus away from whether there is a
technical breach of the hearsay rule, to whether the particular evidence is
reliable. Factors relevant to reliability or weight will include the
source of the representation, the persons to whom it has been transmitted,
and the circumstances in which it was transmitted.
The requirements of relevance in sections 55 and 56 may operate to
exclude representations which do not have sufficient indications of
reliability. Reliability will also be ensured if courts continue to use
their powers to control proceedings to create a culturally appropriate
context for the giving of evidence regarding the existence or content of
particular traditional laws and customs. Further safeguards are provided
by the court's powers under sections 135, 136 and 137 to exclude or limit
the use of evidence.
Item 35 - Section 76
Item 35 inserts an additional note into section 76, which provides that
evidence of opinion is generally not admissible to prove the existence of a
fact, to reflect the addition of a new exception to the opinion rule in
section 78A at item 36 for Aboriginal and Torres Strait Islander
traditional laws and customs.
Item 36 - After Section 78
Item 36 inserts a new section 78A which provides an exception to the
opinion rule for evidence of an opinion expressed by a member of an
Aboriginal or Torres Strait Islander group about the existence or non-
existence, or the content, of the traditional laws and customs of the
group. The item implements recommendation 19-2 of the Report.
The Report found that a member of an Aboriginal or Torres Strait Islander
group should not have to prove that he or she has specialised knowledge
based on training, study or experience before being able to give opinion
evidence about the traditional law and custom of his or her own group.
People who are not members of the group will have their competence to give
such evidence determined under current section 79, on the basis of their
specialised knowledge based on training, study or experience.
The requirement of relevance in sections 55 and 56 may operate to exclude
opinions which do not have sufficient indications of reliability, eg where
the person is a member of the group but has had little or no contact with
that group. Reliability will also be ensured if courts continue to use
their powers to control proceedings to create a culturally appropriate
context for the giving of evidence regarding the existence or content of
particular traditional laws and customs. Further safeguards are provided
by the court's powers, under sections 135, 136 and 137, to exclude or limit
the use of evidence.
Item 37 - Section 79
Item 37 inserts '(1)' before the words 'If a person' to reflect that
section 79 will now contain two subsections as a result of item 38, which
inserts new
subsection 79(2).
Item 38 - At the end of section 79
Item 38 inserts new subsection 79(2) to clarify that the exception covers
expert evidence relating to child behaviour and development, particularly
in cases of sexual assault. This item implements recommendation 9-1 of the
Report.
Section 79 provides an exception to the opinion rule where the opinion is
based on specialised knowledge. Expert opinion evidence on the development
and behaviour of children can be relevant to a range of matters in legal
proceedings, including testimonial capacity, the credibility of a child
witness, the beliefs and perceptions held by a child, and the
reasonableness of those beliefs and perceptions. Such evidence can, in
certain cases such as child sexual assault matters, be important in
assisting the court to assess other evidence or to address misconceived
notions about children and their behaviour. However, the Report found that
courts show a continuing reluctance in many cases to admit this type of
evidence. This amendment highlights that the exception covers this
particular type of expert opinion evidence.
The dangers of such expert evidence being misused can be addressed
adequately by judicial comments or directions and the application of
sections 135, 136 and 137 to exclude or limit the use of evidence.
Item 39 - At the end of section 82
Item 39 adds a note to section 82 which provides for the exclusion of
evidence of admissions that is not first-hand. This item implements
recommendation 10-2 of the Report.
The amendment clarifies that section 60, which contains an exception to the
hearsay rule for evidence that is admitted for a non-hearsay purpose, does
not apply to evidence of an admission in a criminal proceeding. Admissions
can be highly persuasive and highly prejudicial to the accused. It is
therefore important that the reliability of admissions is maximised. Item
39 is consistent with the amendments to section 60 made by item 22.
Item 40 - Subsection 85(1)
Item 40 repeals and replaces the current subsection 85(1) on admissions by
a defendant in criminal proceedings. The words 'in the course of official
questioning' in paragraph 85(1)(a) are replaced with 'to or in the presence
of, an investigating official who at that time was performing functions in
connection with the investigation of the commission, or possible
commission, of an offence'. This amendment enhances the reliability of
evidence in criminal trials and implements recommendation 10-1 of the
Report.
This amendment addresses the reasons of the majority of the High Court in
Kelly v The Queen (2004) 218 CLR 216. The majority held (at [52]) that the
phrase 'in the course of official questioning' in a Tasmanian Act 'marks
out a period of time running from when questioning commenced to when it
ceased'. McHugh J, in dissent, expressed the concern that such an
interpretation would 'make the section's operation hostage to the oral
evidence of the police officers as to when the questioning commenced and
ended'.
The purpose of section 85 is to ensure that only reliable evidence is
placed before the court. The requirements in section 85 place few
administrative or resource demands on the police. Rather, it places an
onus on the prosecution to show reliability in cases where the truth of an
admission may be in doubt due to the circumstances in which it was made.
Limiting, as Kelly does, the period of 'official questioning' to one
determined by investigating officials is unsatisfactory. This amendment
broadens section 85 to cover the period where the investigating official is
performing functions in connection with the investigation of the
commission, or possible commission, of an offence. Any admissions made to
police during this time will fall within the scope of section 85. The
breadth of this provision is consistent with the traditional caution with
which the law treats admissions made to police officers and to other
persons in authority.
This amendment goes further than recommendation 10-1 in two respects.
These departures were recommended by the working group, approved by the
expert reference group and are part of the model evidence provisions
endorsed by SCAG.
First, in addition to inserting new subsection 85(1), item 40 also amends
paragraph 85(1)(b) to add the words 'as a result of an act of another
person who was, and who the defendant knew or reasonably believed to be
capable of influencing the decision to prosecute'. This is to remove
covert operatives from the ambit of the provision, following Callaway JA's
suggestion in R v Tofilau [2006] VSCA 40 that covert operatives may be
included in the scope of section 85.
Secondly, the term 'official questioning' has been removed from other parts
of the Act so as to avoid any uncertainty. This has occurred via items 41,
65, 70 and 89.
Item 41 - Subsection 89(1)
Item 41 amends current subsection 89(1) by replacing the words 'in the
course of official questioning' with 'by an investigating official who at
that time was performing functions in connection with the investigation of
the commission, or possible commission, of an offence'. This item
implements recommendation 10-1 of the Report.
Subsection 89(1) prevents unfavourable inferences being drawn from a
person's silence when questioned. This amendment is inserted for the same
reasons as the amendment to paragraph 85(1)(a) at item 40.
Item 42 - Subsection 97(1)
Item 42 repeals and replaces current subsection 97(1). The amendment
replaces the word 'if' with 'unless' in subsection (1), and 'or' with 'and'
in paragraph (a), thereby removing the current double negatives. This item
implements recommendation 11-3 of the Report.
Existing subsection 97(1) states the tendency rule. The amendment does not
change the substantive law, but makes the provision easier to understand.
Item 43 - Section 98
Item 43 repeals and replaces current section 98 with a new section 98 which
introduces a general test for the coincidence rule. This item implements
recommendations 11-1 and 11-2 of the Report.
Currently section 98 provides that similar fact evidence is not admissible
to prove that a person did a particular act or had a particular state of
mind by reason of the improbability of the related events occurring
coincidentally unless certain conditions are satisfied. Events are related
events only if they are substantially and relevantly similar and the
circumstances in which they occurred are substantially similar. The
Commissions considered that this test raised the threshold too high and
could exclude highly probative evidence from the ambit of the provision.
As the coincidence rule is intended to operate as a preliminary screening
provision in both civil and criminal proceedings, it is appropriate that
the threshold not be set too high.
New section 98 applies where the party adducing the evidence relies on any
similarities in the events or the circumstances in which they occurred, or
any similarities in both the events and circumstances in which they
occurred.
A number of existing requirements are retained. The current requirement
for the party to give reasonable notice in writing to other parties of
their intention to adduce the evidence is restated in paragraph 98(1)(a).
The current requirement for the court to be satisfied that the evidence
will have significant probative value, either by itself or with other
evidence, is restated in paragraph 98(1)(b). New subsection 98(2) restates
existing exceptions under current subsection 98(3).
Item 43 also inserts a note to section 98 to clarify the intention and
effect of the provision by stating that the 2 or more related events which
may be considered can include an event which is a fact in issue in the
proceeding.
Item 44 - Section 102
Item 44 repeals section 102. This item relates to recommendation 12-1 of
the Report.
This is a consequential amendment arising out of item 45 which inserts new
sections 101A and 102 which set out the credibility rule.
Item 45 - Before section 103
Item 45 inserts new sections 101A and 102 which set out the credibility
rule. This item implements recommendation 12-1 of the Report.
New section 101A inserts a definition of the evidence to which the
credibility rule applies. Item 45 also inserts two new Divisions into Part
3.7 titled 'Division 1 - Credibility evidence' and 'Division 2 -
Credibility of witnesses'. Division 1 contains section 101A and Division 2
contains new section 102 and current sections 103 to 108A.
Section 101A
New section 101A defines credibility evidence as evidence that (a) is
relevant only because it affects the assessment of the credibility of the
witness or person, or (b) is relevant because it affects the assessment of
credibility of the witness or person and is relevant, but not admissible,
or cannot be used, for some other purpose under Parts 3.2 to 3.6 of the
Act.
This amendment addresses the literal interpretation of existing section 102
adopted by the High Court in Adam v The Queen (2001) 207 CLR 96. Section
102 currently states that evidence that is relevant only to a witness's
credibility is not admissible. Prior to the decision in Adam, the
provisions in Part 3.7 (Credibility) had been used to control the
admissibility of evidence relevant both to credibility and a fact in issue.
The consequence of this decision is that the credibility rule will not
apply if evidence is relevant both to credibility and a fact in issue, even
where the evidence is not admissible for the purpose of proving a fact in
issue.
The decision in Adam has created the unsatisfactory situation in which
control of evidence relevant for more than one purpose including
credibility depends entirely upon the exercise of the discretions and
exclusionary rules contained in sections 135 to 137. This has the
potential to lead to greater uncertainty, inconsistent outcomes and
increased appeals. Evidence relevant to both credibility and a fact in
issue, but not admissible for the latter purpose, should be subject to the
same rules as other credibility provisions. This amendment enables section
102 to operate as it was originally intended.
Item 45 also adds a note to section 101A to clarify that sections 60
(exception to the hearsay rule) and 77 (exception to the opinion rule) are
not relevant in the determination of admissibility for another purpose
under section 101A because they cannot apply to evidence which has not yet
been admitted. The inclusion of this note is also in response to the
decision in Adam.
Section 102
New section 102 is not intended to change the law on credibility evidence
but rather restates the credibility rule in simpler terms. It states that
credibility evidence about a witness is not admissible. As discussed
above, section 101A now defines the term credibility evidence so that it
applies to evidence that is relevant because it affects the assessment of
credibility of the witness or person and is relevant, but not admissible,
or cannot be used, for some other purpose under Parts 3.2 to 3.6 of the
Act. These amendments enable section 102 to operate as it was originally
intended.
Item 45 also includes a note to section 102 which lists a number of
exceptions to this rule under other provisions of the Act.
Item 46 - Subsection 103(1)
Item 46 amends current subsection 103(1) by replacing the words 'has
substantial probative value' with 'could substantially affect the
assessment of the credibility of the witness'. This item implements
recommendation 12-2 of the Report.
Current subsection 103(1) provides that the credibility rule does not apply
to evidence adduced in cross-examination of a witness if the evidence has
substantial probative value. 'Probative value' is defined in the
Dictionary of the Act but it has been argued that this definition cannot
apply to section 103 because the definition refers to the relationship
between evidence and a fact in issue, rather than to issues of credibility.
In R v RPS (unreported, NSW Court of Criminal Appeal, Gleeson CJ, Hunt J
at CL and Hidden J, 13 August 1997) Hunt J held that section 103 should be
read as meaning that 'evidence adduced in cross-examination must therefore
have substantial probative value in the sense that it could rationally
affect the assessment of the credit of the witness'.
The amendment expressly incorporates this construction of section 103 and
maintains the requirement that the evidence relevant to credibility be
substantial in order to be admitted.
Item 47 - Subsection 103(2)
Item 47 amends subsection 103(2) by deleting the words 'in deciding whether
the evidence has substantial probative value' and replacing them with 'for
the purposes of subsection (1).' This relates to recommendation 12-2 of
the Report.
This is a consequential amendment arising out of item 46 which amends
subsection 103(1).
Item 48 - Subsection 104(1)
Item 48 amends subsection 104(1) to make it clear that section 104 applies
only 'to credibility evidence' in a criminal proceeding. This amendment
implements recommendation 12-1 of the Report.
This is a consequential amendment arising out of item 45.
Item 49- Subsection 104(2)
Item 49 amends subsection 104(2) by replacing the words 'only because it is
relevant to' with 'to the assessment of'. This amendment implements
recommendation 12-1 of the Report.
This is a consequential amendment arising out of item 45. This amendment
removes the current restriction that the matter must be relevant 'only' to
the defendant's credibility.
Item 50 - Subsection 104(4)
Item 50 repeals and replaces subsection 104(4). This is a consequential
amendment arising out of item 45. The amendment implements recommendations
12-1 and 12-3 of the Report.
The amendment also restates paragraphs 104(4)(a) and 104(4)(b) more clearly
and removes the overlap between paragraph 104(4)(a) and Part 3.8 (evidence
about character).
Item 51 - Subsection 104(5)
Item 51 amends subsection 104(5) by replacing a reference to
paragraph 104(4)(b) with a reference to subsection 104(4).
This item is a consequential amendment arising out of item 50.
Item 52 - Section 106
Item 52 repeals and replaces current section 106 of the Act which provides
that the credibility rule does not apply to rebutting a witness's denials
by other evidence in specific circumstances. This item implements
recommendation 12-5 of the Report.
There are two key changes to the existing provision. First, the court may
grant leave to adduce evidence relevant to credibility outside the current
categories. Second, evidence relevant to credibility may be led not only
where the witness has denied the substance of the evidence in cross-
examination, but also where he or she did not admit or agree to it.
While new paragraph 106(1)(b) requires that the court give leave to adduce
evidence relevant to credibility, new subsection 106(2) provides that leave
is not required where the evidence falls within paragraphs 106(2)(a) to
(e). Paragraphs (a) to (e) set out the same exceptions as contained in
current section 106.
Under the current section 106, the requirement that the substance of the
evidence be denied and that the evidence must be relevant to a defined
category may prevent the admission of important evidence for reasons of
efficiency rather than fairness. This item overcomes this issue by
amending section 106 to create a broader basis on which to admit evidence.
Evidence not falling within the current exceptions may now be adduced with
the court's leave. While this has the potential to lengthen some trials,
it is considered that increased flexibility is needed to avoid a
miscarriage of justice which is more important than ensuring the efficiency
of trials.
Section 192 provides further guidance to the court on deciding whether
leave should be granted, in particular, the inclusive list of matters to be
considered in subsection 192(2).
Item 53 - After section 108
Item 53 inserts a new Division heading titled 'Division 3 - Credibility of
persons who are not witnesses'. This relates to recommendations 12-1 and
12-3 of the Report.
This new Division includes section 108A (as amended in items 54 and 55) and
new section 108B in item 56. New Divisions 1 and 2 to Part 3.7 are
inserted by item 45.
Item 54 - Subsection 108A(1)
Item 54 repeals and replaces subsection 108A(1) to clarify that this
subsection applies to all situations in which evidence of a previous
representation has been admitted where the maker of the representation is
not called to give evidence. This item implements recommendations 12-1 (in
part) and 12-6 of the Report.
This amendment updates subsection 108A(1) to reflect the new definition of
credibility evidence so that credibility evidence about the person will not
be admissible unless it could substantially affect an assessment of the
person's credibility. This amendment is consistent with the changes to
section 102 at item 45 and subsection 103(2) at item 47 and ensures that
subsection 108A(1) applies to evidence relevant to credibility.
Subsection 108A only applies where the person who made the representation
will not be called to give evidence in the proceeding. Where that person
is the defendant or a witness for the defence, it will be up to the defence
whether or not to call that person to give evidence. There is generally no
obligation on the defence to disclose this information to the prosecution
or the court. This may lead to uncertainty for the prosecution before the
close of its case where it is not aware whether the relevant person who
made the representation will be called. Without this information, the
prosecution cannot rely on the provisions of section 108A to admit
credibility evidence. However, this problem can be overcome by the
prosecution later being able to reopen its case, or being allowed to call a
case in reply: see R v Siulai [2004] NSWCCA 152.
Item 55 - Subsection 108A(2)
Item 55 amends subsection 108A(2) by deleting the words 'in deciding
whether the evidence has substantial probative value' and replacing them
with 'for the purposes of subsection (1)'. This item relates to
recommendation 12-6 of the Report.
This amendment improves the clarity of the subsection and is consistent
with the amendment to subsection 108A(1) at item 54.
Item 56 - After section 108A
Item 56 inserts new sections 108B and 108C into the Act. It also inserts a
new Division heading before section 108C titled 'Division 4 - Persons with
specialised knowledge.' This item implements recommendations 12-6 and 12-7
of the Report.
Section 108B
New section 108B provides that if evidence of a prior representation made
by the defendant in a criminal trial has been admitted, and the defendant
has not or will not be called to give evidence, the same restrictions on
adducing evidence relevant to the credibility of the defendant should apply
as under section 104. This is to overcome the current position in section
108A where the prosecution can tender a prior representation of the
defendant and then lead credibility evidence against the defendant.
New subsection 108B(2) provides that the prosecution must seek the court's
leave where they wish to tender evidence relevant only to a defendant's
credibility. When deciding whether to grant leave, the court is to take
into account matters in subsection 108B(4). Leave is not required where
the evidence falls within an exception under subsection 108B(3).
Section 108C
New section 108C creates a new exception to the credibility rule. This
exception applies to expert opinion evidence that could substantially
affect the assessment of the credibility of a witness. The court must give
leave for this evidence to be adduced. The purpose of the amendment is to
permit expert opinion evidence in situations where it would be relevant to
the fact-finding process (for example, to prevent misinterpretation of
behaviour of a witness with an intellectual disability or cognitive
impairment or inappropriate inferences from that behaviour).
New subsection 108C(2) clarifies that specialist knowledge includes
specialised knowledge of child development and behaviour (including
specialised knowledge of the effect of sexual abuse on children and of
their behaviour during and following abuse.). This amendment complements
the amendment to section 79 at item 38.
Item 57 - Section 112
Item 57 amends section 112 by correcting a minor drafting inconsistency
between subsection 104(2) and section 112. The words in section 112 'is
not to be' are replaced with 'must not be'. This item implements
recommendation 12-4 of the Report.
This amendment does not make any substantive change to the law.
Item 58 - Paragraphs 114(5)(a) and (b)
Item 58 omits all occurrences of the term 'lawyer' in subsection 114(5) and
replaces them with 'Australian legal practitioner or legal counsel'. These
terms are defined in items 80 and 88.
This amendment ensures that subsection 114(5) includes lawyers with a valid
practising certificate, as well as relevant statutory officers and
government and other lawyers who are otherwise permitted to practise in
that jurisdiction.
Item 59 - Subsection 117(1) (paragraph (a) of the definition of client)
Item 59 amends section 117 which contains the definition of 'client'
relevant to client legal privilege. This item implements recommendation 14-
2 of the Report.
The amendment changes the definition of client in paragraph 117(1)(a) from
'an employer (not a lawyer) of a lawyer' to 'a person or body who engages a
lawyer to provide legal services or who employs a lawyer (including under a
contract of service)'. The purpose of the amendment is to remove the
distinction between government and private lawyers in allowing a client to
be an employer of the lawyer.
Item 60 - Subsection 117(1) (definition of lawyer)
It has been unclear whether the definition of 'lawyer' as 'a barrister or
solicitor' as provided in the Act means that the lawyer must hold a current
practising certificate or whether it is sufficient to be admitted as either
type of legal practitioner on the roll of the relevant court. Item 60
clarifies that the definition of 'lawyer' in relation to client legal
privilege to includes 'Australian lawyers', that is, those who are admitted
but do not necessarily have a current practising certificate, as well as
foreign lawyers. This item implements recommendation 14-3 of the Report.
This amendment adopts the ACT Court of Appeal decision in Commonwealth v
Vance [2005] ACTCA 35. In considering the definition of 'lawyer' under
section 117, the ACT Court of Appeal found that a practising certificate
was an important indicator, but not conclusive on the issue of whether the
legal advice was sufficiently independent to constitute legal advice for
the purposes of claiming privilege under the Act.
The policy of the privilege does not justify its restriction to those with
a practising certificate, particularly since a range of lawyers may provide
legal advice or professional legal services in various jurisdictions. It
is the substance of the relationship that is important, rather than a
strict requirement that the lawyer hold a practising certificate. The
amendment is directed at clarifying that client legal privilege may pertain
to Australian lawyers and their employees and agents. However, the
amendment is not intended to affect the common law concept of independent
legal advice.
This item also extends the definition of 'lawyer' so that it includes a
person who is admitted in a foreign jurisdiction. The rationale of client
legal privilege to serve the public interest in the administration of
justice and its status as a substantive right means it should not be
limited to advice obtained only from Australian lawyers. This position
reflects the reasoning of the Full Federal Court in Kennedy v Wallace
(2004) 142 FCR 185.
Item 61 - Paragraph 118(c)
Item 61 amends paragraph 118(c) by replacing the words 'client or a lawyer'
with 'client, lawyer or another person'. This item implements
recommendation 14-4 of the Report.
Section 118 prevents the admission of certain confidential communications
and documents made for the dominant purpose of a lawyer providing legal
advice to the client. Paragraph 118(c) has been amended to extend the
privilege to confidential documents which may have been prepared by someone
other than the client or lawyer (such as an accountant or consultant) for
the dominant purpose of the lawyer providing legal advice to the client.
This reflects developments in the common law consideration of legal advice
privilege as discussed by the Full Federal Court in Pratt Holdings v
Commissioner of Taxation (2004) 207 ALR 217.
Item 62 - Section 122
Item 62 repeals and replaces section 122 to align the provision more
closely with the common law test for loss of privilege as set out in Mann v
Carnell (1999) 201 CLR 1. This item implements recommendation 14-5 of the
Report.
Current section 122 provides that client legal privilege is lost by consent
or by knowing and voluntary disclosure of the substance of the evidence.
Item 62 amends section 122 to provide that evidence may be adduced where a
client or party has acted in a manner inconsistent with the maintenance of
the privilege. This amendment ensures that new section 122 is concerned
with the behaviour of the holder of the privilege, as opposed to the
intention of the holder of the privilege, as has been the case under the
current section 122. The test of inconsistency adopted by this amendment
sits well with the underlying rationale of section 122, namely, that the
privilege should not extend beyond what is necessary, and that voluntary
publication by the client should bring the privilege to an end. The
addition of the inconsistency criterion for waiver also gives the court
greater flexibility to consider all the circumstances of the case.
Item 63 - Section 128
Item 63 replaces the current procedure under section 128 where a witness
claims the privilege against self-incrimination. This item addresses
recommendations 15-7 and 15-8 of the Report.
Item 63 also inserts a new section 128A which provides a process to deal
with objections on the grounds of self-incrimination made by a person who
is subject to a search order (Anton Pillar) or a freezing order (Mareva) in
civil proceedings other than under proceeds of crime legislation. Examples
of search orders and freezing orders can be found in Orders 25A and 25B of
the Federal Court Rules.
Section 128
This change has arisen from concerns noted in the Report that the current
certification process is cumbersome and hard to explain to witnesses.
Comments were also made about the necessity to invoke the process in
relation to each question. A preferable approach was that the broader
'subject matter' of the evidence, rather than the 'particular evidence' be
protected.
To address these concerns, the new section 128 has been expanded to cover
not only 'particular evidence' but also 'evidence on a particular matter'
(subsection 128(1)).
In addition, section 128 has been restructured to simplify the order in
which the process of certification is outlined in the section. Rather than
including the requirement for the court to inform the witness of his or her
rights and the effect of the section, the new section provides:
. that the witness may object to giving the evidence on the grounds that
it may incriminate him or her (or make him or her liable to a civil
penalty) (subsection 128(1))
. that the court shall determine whether or not that claim is based on
reasonable grounds (subsection 128(2))
. if the claim is reasonable, that the court can then tell the witness
that he or she may choose to give the evidence or the court will
consider whether the interests of justice require that the evidence be
given, (subsections 128(3) and (4)) and
. if the evidence is given, either voluntarily or under compulsion, that
a certificate shall be granted preventing the use of that evidence
against the person in another proceeding (subsection 128(5)).
New subsection 128(6) restates current subsection 128(4) which requires the
court to cause a witness to be given a certificate under this section if
the objection has been overruled and the court subsequently finds that
there were reasonable grounds for the objection. New subsection 128(7)
restates current subsection 128(7) which provides that a witness has both
use and derivative use immunity in respect of the evidence given under a
certificate, except in criminal proceedings in respect of the falsity of
that evidence. The note to subsection 128(7) highlights that where this
provision has been adopted in State Evidence Acts, the provision only
applies to a proceeding in a State Court rather than an Australian Court.
New subsections 128(8) and 128(9) address two issues that arose in
Cornwell v The Queen [2007] HCA 12 where the accused was granted a
certificate under section 128 in his first trial for evidence given by him
that may have incriminated him in relation to other possible charges.
After a hung jury, a retrial commenced for the same offence. There was
argument over whether the retrial counted as a new proceeding for the
purposes of the then subsection 127(7) and therefore whether the evidence
for which the certificate had been granted could be adduced in the retrial.
There was also argument as to whether the certificate had been validly
granted in the first place.
At the time the Report was published, the High Court had not delivered
judgment in the Cornwell proceeding. In response to the High Court's
decision in Cornwell, new subsections 128(8) and 128(9) have been included
in addition to the amendments made in response to recommendation 15-7 of
the Report.
New subsection 128(8) provides that section 128(7) applies regardless of
any challenge, review, quashing or calling into question on any ground of
the decision to give or the validity of the certificate concerned. This
amendment has been made on the basis that the granting of a certificate
under section 128 is not the same as any other evidential ruling. To
ensure that the policy of section 128 is carried into effect, the witness
must be certain of being able to rely on that certificate in future
proceedings.
The new subsection 128(9) makes clear that a 'proceeding' under the section
does not include a retrial for the same offence, or a trial of the
defendant for an offence arising out of the same facts that gave rise to
that offence. That is, the new subsection 128(9) seeks to make clear that
a certificate is not to be used by an accused to prevent the use of his or
her evidence in another proceeding for the same offence, nor in a
proceeding in which he or she is charged with an alternative count (eg
manslaughter, if the first failed trial in which he or she gave the
evidence under certificate was for murder).
New subsections 128(10) through (15) replicate current subsections
128(8) through (13).
Section 128A
This item addresses, but does not implement, recommendation 15-10 of the
Report. Recommendation 15-10 was that self-incrimination privilege be
abrogated in relation to search and freezing orders. The Victorian Law
Reform Commission (VLRC) revisited this issue in its 2006 Report
'Implementing the Uniform Evidence Act'. The VLRC developed draft
provisions which, rather than preventing claims for privilege being made
entirely, provide a means for evidence to be secured and provided to the
court in a sealed envelope. Under these draft VLRC provisions the court is
then empowered to require disclosure of that evidence to the party seeking
it where, upon consideration, the court determines that the interests of
justice require it and a certificate providing use and derivative use
immunity is given to the disclosing party. The SCAG working group
preferred the VLRC's refinement of recommendation 15-10 and have based new
section 128A on the work of the VLRC.
The new section clarifies that the privilege against self-incrimination
under the Act applies to disclosure orders. The person who is subject to
the order must prepare an affidavit containing the required information to
which objection is taken (called a privilege affidavit), deliver it to the
court in a sealed envelope and file and serve on each other party a
separate affidavit setting out the basis of the objection (subsection
128A(2)). If the court finds there are reasonable grounds for the
objection, the court must not require the disclosure of the information and
must return it to the person (subsection 128A(5)).
If the court is satisfied the information may tend to prove that the person
has committed an offence or is liable to a civil penalty under Australian
law, but not under the law of a foreign country, and the interests of
justice require the information to be disclosed, the court may require the
whole or any part of the privilege affidavit to be filed and served on the
parties (subsection 128A(6)). The court must give the person a certificate
in respect of the information that is disclosed (subsection 128A(7)).
Evidence of that information and evidence of any information, document or
thing obtained as a direct result or indirect consequence of the disclosure
cannot be used against the person in any proceeding, other than a criminal
proceeding in relation to the falsity of the evidence concerned (subsection
128A(8)).
Subsection 128A(9) clarifies that the protection conferred by section 128A
does not apply to documents that were in existence before a search or
freezing order was made. Any pre-existing documents annexed or exhibited
to the privilege affidavit are also not covered by the protection conferred
by section 128A.
New subsection 128A(10) departs from recommendation 15-10, in similar terms
to the departure at subsection 128(8). In response to the High Court's
decision in Cornwell, new subsection 128A(10) provides that section 128A(8)
applies regardless of any challenge, review, quashing or calling into
question on any ground of the decision to give or the validity of the
certificate concerned. This amendment has been made on the basis that the
granting of a certificate under section 128A is not the same as any other
evidential ruling. To ensure that the policy of section 128A is carried
into effect, the witness must certain of being able to rely on that
certificate in future proceedings.
Bodies corporate cannot claim the self incrimination privilege as provided
by new sections 128 and 128A.
Item 64 - Part 3.11 (heading)
Item 64 removes the heading 'Part 3.11 - Discretions to exclude evidence'
and replaces it with 'Part 3.11 - Discretionary and mandatory exclusions'.
This item implements recommendation 16-1 of the Report.
This is a technical amendment which reflects that Part 3.11 contains both
discretionary and mandatory exclusions.
Item 65 - Subsection 139(2)
Item 65 removes the words 'official questioning' from subsection 139(2) and
replaces them with 'questioning'. This item relates to recommendation 10-1
of the Report.
Current section 139 deems a statement made or acts done by a person during
questioning by an investigating official to have been obtained improperly
if the person is not properly cautioned prior to the questioning. This
amendment is to address the reasons of the majority of the High Court in
Kelly v The Queen (2004) 218 CLR 216 and is consequential to the amendment
of section 85 at item 40.
Item 66 - Section 148
Item 66 amends section 148 by replacing the word 'lawyer' with 'Australian
lawyer' in the heading and where first occurring. Australian lawyer is
defined in item 79.
Section 148 is designed to facilitate proof of a range of legal documents
and should not be constrained by a narrow definition of 'lawyer'.
Item 67 - Paragraph 148(a)
Item 67 omits the words 'a lawyer' from paragraph 148(a) and replaces them
with 'an Australian lawyer', for the same reason as outlined in item 66.
Item 68 - Section 161
Item 68 repeals and replaces section 161 to facilitate proof of electronic
communications. This item implements recommendation 6-3 of the Report.
Currently, there is no provision in the uniform Evidence Acts that applies
presumptions relating to the sending and receiving of electronic
communications generally. New section 161 addresses this issue by
providing presumptions relating to the sending and receipt as well as the
source and destination of the electronic communication.
'Electronic communication' is defined in the Dictionary at item 86 and
embraces all modern electronic technologies, including telecommunications,
as well as the more outmoded facsimile and telex methods of communication.
This item also notes that section 182 gives this section a wider
application in relation to Commonwealth records.
Item 69 - Part 4.5 (heading)
Item 69 amends the heading to Part 4.5 by inserting the words 'and
information' after the word 'Warnings'. This relates to recommendation 18-
2 of the Report.
This is a consequential amendment arising out of items 71 and 72 which
amend and substitute provisions relating to warnings about children's
evidence and delay in prosecution.
Item 70 - Paragraph 165(1)(f)
Section 165 deals with warnings for categories of unreliable evidence.
Item 70 removes the words 'official questioning' from paragraph 165(1)(f)
and replaces them with 'questioning by an investigating official'. This
relates to recommendations 10-1 of the Report.
This amendment is for the same reasons as the amendments to section 85 by
item 40.
Item 71 - At the end of section 165
Item 71 inserts a new subsection into section 165 which deals with warnings
for categories of unreliable evidence. New subsection 165(6) provides that
a judge must not warn or inform a jury that the reliability of a child's
evidence may be affected by the age of the child except as provided in new
section 165A. This item relates to recommendation 18-2 of the Report.
Item 72 - At the end of Part 4.5
Item 72 inserts new sections 165A and 165B which deal with warnings in
relation to children's evidence and delay in prosecution. This implements
recommendations 18-2 and 18-3 of the Report.
Section 165A
New section 165A is intended to displace the common law practices of giving
warnings.
Juries often underestimate the credibility of child witnesses under the
misconception that the evidence of children is inherently less reliable
than that of adults. This misconception is reinforced when judges give
general warnings about the unreliability of child witnesses.
Research conducted in recent years demonstrates that children's cognitive
and recall skills are not inherently less reliable than those of adults.
This is discussed in Chapter 18 of the Report. This amendment addresses
these misconceptions and reinforces the policy underpinning section 165
that warnings should only be given where the circumstances of the case
indicate they are warranted.
New subsection 165A(1) provides that in any proceeding in which evidence is
given by a child before a jury, a judge is prohibited from warning or
suggesting to the jury:
. that children as a class are unreliable witnesses
. that the evidence of children as a class is inherently less credible
or reliable, or requires more careful scrutiny, than the evidence of
adults
. that a particular child's evidence is unreliable solely on account
of the age of the child, and
. in criminal proceedings, that it is dangerous to convict on the
uncorroborated evidence of a witness who is a child.
However, subsection 165A(2) permits the judge to either:
. inform the jury that the evidence of a particular child may be
unreliable and the reasons for which it may be unreliable, or
. warn or inform the jury of the need for caution in determining whether
to accept the evidence of the particular child and the weight to be
given to it.
The judge may give a warning or inform the jury if a party has requested
the warning or information and the court is satisfied that there are
circumstances particular to that child (other than their age) that affect
the reliability of the child's evidence and warrant the giving of the
warning or information.
The expression 'circumstances (other than solely the age of the child)'
encompasses all of the following:
. characteristics of individuals of the witness's age (eg
suggestibility)
. characteristics unique to that child (eg disability), and
. historical or current circumstances unique to that child (eg the
manner in which the investigation was conducted, the manner in which
the child was questioned).
Section 165B
New section 165B regulates information which may be given to juries in
criminal proceedings on the subject of delay and forensic disadvantage to
the accused.
The purpose of new section 165B is to replace the existing common law on
Longman warnings so as to limit the circumstances in which they are given
and clarify their scope. In Longman v The Queen (1989) 168 CLR 79, the
majority of the High Court held that the jury in a sexual assault case
should have been warned that, as the evidence of the complainant could not
be tested adequately after the passage of time, it would be dangerous to
convict on that evidence alone unless the jury, scrutinising the evidence
with great care, was satisfied of its truth and accuracy. In addition to
the warning about delay, the Court also found that the jury should have
been warned about the risk of fantasy and the potential for delay, emotion,
prejudice or suggestion to distort recollection.
There is considerable evidence that Longman warnings on the effects of
delay are given almost routinely and in circumstances where the delay is of
relatively short duration. The purpose of this amendment is to clarify
that:
. there is no irrebuttable presumption of forensic disadvantage arising
from delay
. information provided to the jury in relation to forensic disadvantage
arising from a delay should only be given if the accused has applied
for it, and only where there is an identifiable risk of prejudice to
the accused. Such prejudice should not be assumed to exist merely
because of the passage of time, and
. delay which may lead to forensic disadvantage is not limited to
proceedings for alleged sexual offences, nor is it limited to delay
between an alleged offence and its being reported.
Subsection 165B(2) provides that if the court is satisfied, on application
by the defendant, that the defendant has suffered a significant forensic
disadvantage because of the consequences of delay, the court must inform
the jury of the nature of the disadvantage and the need to take that
disadvantage into account when considering the evidence.
The section contains two safeguards. First, the mere passage of time is
not to be regarded as a significant forensic disadvantage (subsection
165B(4)). Significant forensic disadvantage arises not because of delay
itself, but because of the consequences of delay - such as the fact that
any potential witnesses have died or are not able to be located, or the
fact that potential evidence has been lost or is otherwise unavailable.
The second safeguard is that the court need not take this action if there
are good reasons for not doing so (subsection 165B(3)).
Subsection 165B(5) provides that no particular form of words need to be
used in giving the information, but that the judge must not suggest that it
would be dangerous or unsafe to convict the defendant because of the delay.
These words are considered an encroachment on the fact-finding task of the
jury and open to the risk of being interpreted as a direction to acquit.
Accordingly, section 165B has been drafted to refer not to warnings to the
jury, but rather to the court informing the jury of the nature of the
significant forensic disadvantage suffered and the need to take that
disadvantage into account. Use of the phrase 'delay in complaint' in the
new section has also been deliberately avoided because of its association
with discredited assumptions about the reliability of sexual assault
complainants, particularly children.
The court remains bound by the overriding obligation to prevent any
miscarriage of justice. As a result, if the judge considered that the
requirements of section 165B could be made out and counsel had failed to
apply for the warning, the judge would be bound to ask counsel (in the
absence of the jury) whether such a warning was requested.
As noted in the Report, if there are factors affecting the reliability of
certain evidence, a warning may be sought in accordance with section 165
or, in the case of children's evidence, in accordance with new section
165A.
Item 73 - Section 184
Item 73 inserts '(1)' before the words 'In or before' to reflect the fact
that section 184 will now contain two subsections as a result of item 75,
which inserts new subsection 184(2).
Item 74 - Section 184
Item 74 amends section 184 by removing the words 'if advised to do so by
his or her lawyer'. This is a consequential amendment arising out of the
amendment at item 75.
Item 75 - At the end of section 184
Item 75 amends section 184 which relates to consent or admissions made by
an accused by inserting a new subsection 184(2).
The SCAG working group noted differences between current section 184 and
current subsection 190(2). Section 184 permits an accused to admit facts
and give consent only with the advice of his or her lawyer.
Subsection 190(2) permits an accused to agree to waive the rules of
evidence either on advice from their lawyer or if the court is satisfied
that the defendant appreciates the consequences of doing so.
In the interests of greater uniformity, section 184 is amended to follow
the procedure in subsection 190(2) more closely and permit a defendant to
admit to facts or give consent where the court is satisfied that the
defendant understands the consequences of making the admission or giving
the consent.
The new subsection 184(2) reflects the test in subsection 190(2) so that a
defendant may give the relevant consent or make the relevant admissions if:
. advised to do so by their lawyer, or
. the court is satisfied that the defendant understands the consequences
of doing so.
The amendment also updates the reference to a 'lawyer' with a reference to
an 'Australian legal practitioner or legal counsel'.
Item 76 - Paragraph 190(2)(a)
Section 190 deals with waiver of rules of evidence. Item 76 removes the
word 'lawyer' from paragraph 190(2)(a) and replaces it with the phrase 'an
Australian legal practitioner or legal counsel'. These terms are defined
at items 80 and 88 respectively.
This amendment ensures that this section will cover lawyers with a valid
practising certificate, as well as lawyers who are otherwise permitted to
practise in that jurisdiction.
Item 77 - Paragraph 191(3)(a)
Item 77 removes the word 'lawyers' from paragraph 191(3)(a) and replaces it
with 'Australian lawyers, legal counsel or prosecutors'. These terms are
defined at items 80, 88 and 91.
Section 191 deals with agreements by the parties as to facts. This
amendment ensures that representatives of the parties who can agree to the
facts in a statement in writing include lawyers who have a current
practising certificate, those who are otherwise permitted to practise in
that jurisdiction and prosecutors.
Item 78 - After section 192
Item 78 inserts a new section 192A to implement recommendation 16-2 of the
Report. Section 192A deals with advance rulings and findings. It provides
that the court may, if it considers it appropriate, give an advance ruling
or make an advance finding in relation to the admissibility of evidence and
other evidentiary questions.
New subsection 192A(c) makes it clear that the court may also make an
advance ruling or finding in relation to the giving of leave, permission or
directions under section 192.
This amendment addresses the finding of the High Court in TKWJ v The Queen
(2002) 212 CLR 124 that the uniform Evidence Acts only permit advance
rulings to be made in cases where leave, permission or direction is sought
under the Act. The power to give advance rulings carries significant
benefits in promoting the efficiency of trials. It allows counsel to
select witnesses and prepare for trial with greater certainty. Without
such a power, tactical decisions, particularly in relation to character
evidence, are based on speculation.
Item 79 - Dictionary, Part 1
Item 79 inserts a definition of the phrase 'Australian lawyer' into Part 1
of the Dictionary. This phrase has been inserted into the Act by items 60,
66 and 67.
The model evidence provisions endorsed by SCAG in July 2007 contained
definitions for the new terms 'Australian lawyer', 'Australian legal
practitioner', 'Australian practising certificate', 'Australian-registered
foreign lawyer', 'legal counsel' and 'overseas-registered lawyer'. It was
intended that jurisdictions would define these terms (with the exception of
'legal counsel' which is separately defined) by reference to the relevant
provisions of their respective Legal Profession Acts. The Commonwealth
does not have a Legal Profession Act and it is not appropriate for a
Commonwealth Act to rely on definitions in a State or Territory Act.
Equivalent definitions for these terms are included by these amendments
based on the National Legal Profession laws.
Item 80 - Dictionary, Part 1
Item 80 inserts a definition of the phrase 'Australian legal practitioner'
into Part 1 of the Dictionary. This definition is based on the National
Legal Profession laws. This phrase has been inserted into the Act by items
11, 12, 58, 76 and 77.
Item 81 - Dictionary, Part 1
Item 81 inserts a definition of the phrase 'Australian practising
certificate' into Part 1 of the Dictionary. This definition is based on
the National Legal Profession laws. This phrase has been inserted into the
Act by item 88.
Item 82 - Dictionary, Part 1
Item 82 inserts a definition of the phrase 'Australian registered foreign
lawyer' into Part 1 of the Dictionary. This definition is based on the
National Legal Profession laws. This phrase has been inserted into the Act
by item 60.
Item 83 - Dictionary, Part 1
Item 83 inserts a cross-reference to the definition of credibility evidence
into Part 1 of the Dictionary. This is a consequential amendment arising
out of item 45 which inserts the definition of credibility evidence into
section 101A.
Item 84 - Dictionary, Part 1
Item 84 inserts a definition of 'de facto partner' which states that 'de
facto partner' is defined in clause 11 of Part 2 of the Dictionary (see
item 94).
Item 85 - Dictionary, Part 1
Item 85 repeals the definition of 'de facto spouse' in Part 1 of the
Dictionary
Item 86- Dictionary, Part 1
Item 86 inserts a definition of 'electronic communication' into Part 1 of
the Dictionary. This item implements recommendation 6-2 of the Report.
'Electronic communication' is defined by reference to the Electronic
Transactions Act 1999. This is a consequential amendment arising out of
items 33 and 68 which amend sections 71 and 161 and insert references to an
'electronic communication'.
Item 87 - Dictionary, Part 1
Item 87 repeals the definition of 'lawyer' from the Act's Dictionary as,
with one exception, the term will no longer be used in the Act. It has
been replaced by items 11, 12, 58, 66, 67, 75, 76 and 77 with terms such as
Australian lawyer, Australian legal practitioner, legal counsel or
prosecutor. These more specific definitions are consistent with the model
National Legal Profession laws. Definitions of these terms are inserted
into the Act's Dictionary by items 79, 80, 88 and 91.
The term 'lawyer' will still be used for the purposes of Part 3.10 on
Privileges. It is defined in section 117 for the purposes of Part 3.10 and
item 60 updates the definition so that it is consistent with recommendation
14-3 of the Report.
Item 88- Dictionary, Part 1
Item 88 inserts a definition of 'legal counsel' into Part 1 of the
Dictionary. The definition has been included to cover Australian lawyers
who do not require a current practising certificate to practise law.
Examples of legal counsel include in house counsel and government lawyers.
This phrase has been inserted into the Act by items 11, 12, 58, 75, 76 and
77.
Item 89- Dictionary, Part 1
Item 89 removes the definition of official questioning from Part 1 of the
Dictionary. This item relates to recommendation 10-1 of the Report.
This is a consequential amendment arising from item 40.
Item 90 - Dictionary, Part 1
Item 90 inserts a definition of the phrase 'overseas-registered foreign
lawyer' into Part 1 of the Dictionary. This definition is based on the
National Legal Profession laws. This phrase has been inserted into the Act
by item 60.
Item 91 - Dictionary, Part 1
Item 91 inserts a definition of 'prosecutor' into Part 1 of the Dictionary.
It covers police prosecutors and other public officials who may be
authorised to conduct prosecutions and represent the Crown or police
informants, although not admitted legal practitioners.
This is a consequential amendment arising out of items 12 and 77 which
replace the term 'lawyer' in sections 37 and 191 with 'Australian legal
practitioners, legal counsel or prosecutors'.
Item 92 - Dictionary, Part 1
Item 92 inserts a definition of the phrase 'registered' when used in
relation to a foreign country for the purposes of the Act into Part 1 of
the Dictionary. This definition is based on the National Legal Profession
laws. This term is not defined in the model evidence provisions. However,
as the Commonwealth does not have Legal Profession laws (item 73 refers)
and to ensure that this term is understood consistently with the phrase as
used in State and Territory Legal Profession laws, it is appropriate that
this term be defined in this Act.
Item 93 - Dictionary, Part 1
Item 93 inserts a definition of traditional laws and customs into Part 1 of
the Dictionary. This item implements recommendation 19-3 of the Report.
The Report concluded that 'traditional laws and customs' is the most
appropriate term to be used in the Evidence Act. The Commissions also
noted that 'traditional laws and customs' for the purposes of the Evidence
Act should not be limited to the definition used in native title
proceedings. In Members of the Yorta Yorta Aboriginal Community v Victoria
(2002) 214 CLR 422 [46], the High Court (Gleeson CJ, Gummow and Hayne JJ,
with McHugh J agreeing) held that for the purposes of the Native Title Act
1993, 'traditional laws and customs' refers specifically to traditional
laws and customs 'whose content originates in the normative system of
Aboriginal and Torres Strait Islander societies prior to assertion of
sovereignty by the British Crown'.
To ensure that the Act covers the full range of matters within the scope of
'traditional laws and customs', a broader definition of 'traditional laws
and customs' has been inserted. The new definition contains a non-
exhaustive list of matters that include evidence of the customary laws,
traditions, customs, observances, practices, knowledge and beliefs of a
group (including a kinship group) of Aboriginal or Torres Strait Islander
people. The Commissions consider that this broader definition will enable
the Court to receive more diverse evidence which can be used to prove the
existence and content of particular traditional laws or customs.
Item 94 - Dictionary, Part 2
Item 94 inserts a new definition of 'de facto partner' into Part 2 of the
Dictionary. This item implements recommendations 4-5 and 4-6 of the Report
with some modification.
Section 18 of the Evidence Act, which applies only in criminal proceedings,
allows certain categories of witnesses to object to giving evidence against
the accused. Witnesses entitled to raise the objection are the accused's
spouse, de facto spouse, parent or child.
There are differences in the definition of 'de facto spouse' between the
Evidence Acts of New South Wales, Tasmania and the Commonwealth (and by
extension, of Norfolk Island and the Australian Capital Territory). These
result in inconsistencies in the classes of persons who may potentially be
exempt from giving evidence.
The Report recommended a definition of 'de facto partner' that covers both
opposite-sex and same-sex couples, with no requirements for cohabitation or
adulthood. The Report also recommends that the term 'de facto partner' be
used instead of 'de facto spouse', as this sits better with the aim of
gender neutrality in the application of rules of evidence.
Item 94 implements recommendation 4-6 in part. The amendment ensures that
the definition of de facto is gender neutral and that it applies to same-
sex couples. The definition is only intended to cover types
of relationships where the two persons have a relationship as a couple.
The definition includes a non-exhaustive list of relevant factors to be
taken into account when determining whether a couple is in a de facto
relationship. The list is more detailed than the factors recommended by
the Report. It contains a number of additional factors that state and
territory definitions have in common, including the nature and extent of
common residence.
Part 2 - Transitional provisions
Item 95 - Proceedings already begun
Item 95 is a transitional provision. It provides that, subject to Part 2,
the amendments in Schedule 1 do not apply in relation to proceedings which
have commenced prior to these amendments coming into force. This is
appropriate given the cost to parties in collation of evidence.
Item 96 - Admissions
Item 96 creates an exception to the general transitional provision to
ensure that the amendment to section 85 in item 40 does not have
retrospective application to some admissions made in the course of official
questioning. It provides that the amendment to section 85 does not apply
to admissions made before the commencement of the amendment. It would be
undesirable to require actions taken in compliance with section 85 as it
was prior to the commencement of the amendments to be assessed against the
section as amended simply because the proceedings to which the actions
relate commenced after the amendments came into force.
Item 97 - Failure or refusal to answer questions
Item 97 creates an exception to the general transitional provision to
ensure that the amendment to section 89 in item 41 does not have
retrospective application to some failures or refusals to answer questions
in the course of official questioning. It provides that the amendment to
section 89 does not apply to any failure or refusal, before the
commencement of the amendment, to answer one or more questions, or to
respond to a representation. It would be undesirable to require actions
taken in compliance with section 89 as it was prior to the commencement of
the amendments to be assessed against the section as amended simply because
the proceedings to which the actions relate commenced after the amendments
came into force.
Item 98 - Prior operation of notice provisions
Item 98 clarifies that notice may be given in accordance with the amended
sections 97 or 98 at items 42 and 43 before they commence. Sections 97 and
98 require parties that intend to adduce tendency or coincidence evidence
to provide notice of that fact to the other party. During the transition
from the current Evidence Act provisions to the amended provisions, it is
possible that a party, whose hearing will be heard under the amended
provisions, will be required to provide notice under the amended sections
97 and 98 before they commence. Failure to do so would mean they may be
precluded from raising relevant tendency or coincidence evidence. This
provision enables those parties to give the relevant notice prior to the
commencement of the provisions.
Item 99 - Disclosure orders
Item 99 provides that new section 128A at item 63 only applies to
disclosure orders made after the commencement of the section. The section
clarifies the application of self-incrimination privilege and should not
apply retrospectively to information provided before the commencement of
the amendments.
SCHEDULE 2 - Other evidence amendments
Evidence Act 1995
Item 1 - Subsections 4(5), (5A) and (6)
Item 1 amends subsections 4(5), (5A) and (6) of the Act to ensure these
provisions are consistent with the amendment to subsection 4(1) by item 1
in Schedule 1. The amendments to subsections 4(5) and (5A) implement the
Commonwealth specific amendments contained in recommendation 2-4 of the
Report by removing the superfluous words 'in relation' from these
subsections.
The phrase 'in relation' is also superfluous in subsection 4(6). The
amendment to subsection 4(6) ensures internal consistency within section 4,
which describes the courts and proceedings to which the Act applies.
Item 2 - Section 5
278. Item 2 also implements a Commonwealth specific amendment contained in
recommendation 2-4 of the Report by removing the redundant words 'in
relation' from section 5, which provides for the extended application of
certain provisions.
Item 3 - Paragraph 19(a)
279. The current paragraph 19(a) of the Act refers to offences under Part
III and IIIA of the Crimes Act 1900 (ACT). However, the Crimes Act 1900 no
longer contains a Part III or IIIA. Item 3 updates these references by
amending paragraph 19(a) of the Act so that it now refers to the relevant
parts of the Crimes Act 1900 (ACT).
280. Part III was entitled 'Offences against the person'. These offences
are now contained in Part 2 of the Crimes Act 1900.
281. Part IIIA was entitled 'Sexual offences'. These offences are now
contained in Part 3 of the Crimes Act 1900.
282. In addition, the Crimes Act 1900 was amended to include Parts 4 and 5
entitled 'Female genital mutilation' and 'Sexual servitude', respectively.
It was also amended to include a Part 2A entitled 'Industrial
manslaughter'. Taken together, Parts 3 and 5 broadly relate to sexual
offences and Parts 2, 2A and 4 relate to offences against the person.
Item 4 - Paragraph 19(b)
283. The current paragraph 19(b) refers to subsections 133, 134, 135, 139
and 140 of the Children's Services Act 1986 (ACT). The Children's Services
Act 1986 was repealed by, and its provisions largely replicated in, the
Children and Young People Act 1999 (ACT). Item 4 updates these references
by amending paragraph 19(b) of the Act to refer to the appropriate
provisions of the Children and Young People Act 1999.
284. Section 133 was entitled 'Dangerous employment'. This provision is
largely replicated in section 374 of the Children and Young People Act
1999.
285. Section 134 was entitled 'Regulation of employment of children'.
This provision is largely replicated in section 375 of the Children and
Young People Act 1999.
286. Section 135 was entitled 'Duty of employers of children'. This
provision is largely replicated in section 376 of the Children and Young
People Act 1999.
287. Section 139 was entitled 'Neglect etc of children'. This provision
is now contained in Part 2 of the Crimes Act 1900 and has been captured by
the amendments in item 3 of Schedule 2 to paragraph 19(a).
288. Section 140 was entitled 'Unauthorised removal of children'. This
provision is largely replicated in section 389 of the Children and Young
People Act 1999.
Item 5 - Paragraph 19(c)
289. The current paragraph 19(c) refers to a 'domestic violence offence'
within the meaning of the Domestic Violence Act 1986 (ACT) or an offence
under section 27 of that Act. The definition of 'domestic violence
offence' is now contained in subsection 9(2) of the Domestic Violence and
Protection Orders Act 2001 (ACT). Item 5 updates these references by
amending paragraph 19(c) of the Act to replace the reference to the
Domestic Violence Act 1986 with a reference to the Domestic Violence and
Protection Orders Act 2001.
290. The amendment does not refer specifically to the offence equivalent
to section 27 of the Domestic Violence Act 1986 because it is expressly
included in the definition of 'domestic violence offence' in the Domestic
Violence and Protection Orders Act 2001.
Item 6 - Section 25
291. Item 6 implements recommendation 12-8 of the Report by repealing
section 25 of the Act. Section 25 is obsolete as the right of a defendant
to make an unsworn statement in a criminal trial no longer exists under
Australian law.
Item 7 - Section 105
292. Item 7 implements recommendation 12-8 of the Report by repealing
section 105 of the Act. Section 105 is obsolete as the right of a
defendant to make an unsworn statement in a criminal trial no longer exists
under Australian law.
Item 8 - Subsection 108(2)
293. Item 8 implements recommendation 12-8 of the Report by repealing
subsection 108(2) of the Act. Subsection 108(2) is obsolete as the right
of a defendant to make an unsworn statement in a criminal trial no longer
exists under Australian law.
Item 9 - Subsection 110(4)
294. Item 9 implements recommendation 12-8 of the Report by repealing
subsection 110(4) of the Act. Subsection 110(4) is obsolete as the right
of a defendant to make an unsworn statement in a criminal trial no longer
exists under Australian law.
Item 10 - Subsection 182(1) (table)
295. Item 10 replaces the phrase 'telecommunications' with the term
'electronic communications' in the table in section 182. This is a
consequential amendment arising out of items 29 and 62 of Schedule 1 which
introduce the broader concept of 'electronic communications' and relates to
recommendations 6-2 and 6-3 of the Report.
Item 11 - Subsection 182(1) (table)
296. Item 11 replaces the phrase 'telexes' with the term 'electronic
communications' in the table in section 182. This is a consequential
amendment arising out of items 29 and 62 of Schedule 1 which introduce the
broader concept of 'electronic communications' and relates to
recommendations 6-2 and 6-3 of the Report.
Item 12 - Subsection 186(1)
297. Section 186 is a Commonwealth specific provision. For consistency
with the amendments made under items 7, 8, 52, 60, 61 and 70 in Schedule 1,
item 12 omits the term 'lawyer' and replaces it with the phrase 'Australian
lawyer'. These amendments replace the term 'lawyer' with more specific
definitions that are consistent with the model National Legal Profession
laws.
Item 13 - Application of amendments
298. Item 13 is a transitional provision. It provides that the amendments
in Schedule 2 do not apply in relation to proceedings which have commenced
prior to these amendments coming into force.
SCHEDULE 3 - Printed and electronic publication of Acts
Part 1 - Main amendments
Amendments Incorporation Act 1905
Item 1 - Title
299. Item 1 updates the long title of the Amendments Incorporation Act
1905 to reflect that it will relate to the printed and electronic
publication of Acts.
Item 2 - Section 1
300. Item 2 repeals current section 1 of the Amendments Incorporation Act
1905, inserts two new Parts which provide for a new short title and define
a number of new terms used in the Act
New section 1A -Definitions
301. New terms used in the Incorporation Act are defined:
. Acts database means an electronic database declared under the new
section 4 provided in the Incorporation Act.
. compilation makes clear that an amended Act includes an amendment by
another Act or by a legislative instrument and establishes that the
time the compilation comes into force is the day on which the amended
Act comes into force
. legislative instrument has the same meaning as in the Legislative
Instruments Act 2003, and
. Secretary is defined to mean the Secretary of the Department and
section 19A of the Acts Interpretation Act 1901 applies to mean that
the relevant department is the department that deals with the matters
to which the provision relates.
New Part 2 - Printed publication of Acts
302. The note inserted here ensures that once the new short title
commences there can be no question about the effectiveness of another
amendment of the renamed Act which uses the renamed Act's previous short
title. This will ensure that a reference in an Act to the Amendments
Incorporation Act 1905 can now be read as a reference to the renamed Acts
Publication Act 1905.
Item 3 - Subsection 2(2)
303. Current subsection 2(2) provides that when an Act is amended by
enactment, the reprint will outline what the amendment was in a margin,
footnote or endnote. Item 3 amends this subsection so that if an Act is
amended by a legislative instrument, the reprint will also include in the
margin, footnote or endnote a reference to the legislative instrument by
which each relevant amendment was made. This ensures that a record is kept
of both amending Acts and amending legislative instruments, so that the
most accurate and up-to-date compilations of Acts are available and will
reduce confusion for users.
Item 4 - Section 3
304. Current section 3 provides that where amendments are made by
enactment, a reprint of any Act will include a reference to any Act by
which it has been amended. Item 4 extends this section so that where an
Act is amended by legislative instrument, the reprint must also include a
reference to the amending legislative instrument. This ensures that a
record is kept of both amending Acts and amending legislative instruments,
so that the most accurate and up-to-date compilations of Acts are
available.
Item 5 - Section 4
305. Item 5 introduces two new Parts to the Act. Part 3 will make it
possible to establish an electronic database that will confer official
status for electronic versions of Acts; describes mandatory information
that must be included in a compilation of an Act kept on the database; and
ensures it can be updated and maintained appropriately including to update
end-notes. Part 4 provides a regulation making power.
Part 3 - Electronic publication of Acts
Section 4 - Acts database
306. New section 4 provides for the establishment of a database which can
be the source of official electronic versions of Acts. New section 4
provides that a database of Acts and compilations can be established by the
Secretary of the Department. If the Secretary establishes this database and
declares it in writing published in the Gazette to be an Acts database then
it must be made available to the public. It is intended that in practice
the Office of Legislative Drafting and Publishing will maintain this
database.
307. The maintenance power in proposed 4(1) allows alterations to be made
to the database that are not errors (errors are dealt with in new section 8
proposed in the Bill). The types of alterations that may be made include
alterations to non-legislative text such as end-notes. The regulations
may also prescribe matters relating to alterations (see proposed paragraph
7(1)(b)).
308. New paragraph 4(4)(a) is merely declaratory of the law and is
intended to assist readers. This is because declarations made by the
Secretary to establish the database are not legislative instruments within
the meaning of section 5 of the Legislative Instruments Act 2003.
Section 5 - Effect of inclusion in an Acts database
309. New section 5 establishes the status of an Act in an Acts database
created under new section 4. An Act or a compilation of an Act included on
the database is taken, unless the contrary is proved, to be a complete and
accurate record of that Act (as amended in the case of compilations). This
means that it may be relied upon as a correct statement of the law,
including by courts.
310. In any proceedings, proof is not required about the provisions of an
Act or a compilation as it appears in the database. However, the assent
copy of an Act can only ever be the final arbiter of the contents of an
Act, so in the rare case of a mistake being made in preparing the
publication version from the assent copy provision is made for a court to
be able receive evidence that an error had been made in producing a
compilation in the Acts database. A court will be able to receive evidence
in any way that it sees fit about whether an error has been made in
producing a compilation. A subsequent part of this clause provides for the
rectification of errors.
311. For compilations, the accuracy of the compilation will only apply as
at the date specified in the compilation, so that checks will still need to
be made for amendments that came into operation after that date.
Section 6 - Documents in an Acts database
312. It is presumed, unless the contrary is proved, that a document that
purports to be an extract from the database is what it purports to be.
Section 7 - How an Acts database must be kept
313. It will be possible for regulations to prescribe matters relating to
the creation and maintenance of an Acts database, including the way
information is recorded and altered and how each Act and compilation is
uniquely identified. This provision is permissive only; there is no
requirement that regulations be made. If none are made, the manner in
which the database is kept will be governed by the Bill.
314. A minimum amount of information must be kept for compilations on an
Acts database. A compilation on an Acts database will need to identify
amending legislation, include an amendment history, record the date the
compilation was prepared and any other information required by the
regulations. This information is not necessary for an Act that has not
been amended.
Section 8 - Rectification of an Acts database
315. New section 8 ensures that any errors between the text of an Act as
assented to and the version included in an Acts database, or an inaccurate
compilation included in an Acts database, are rectified as soon as possible
after the Secretary becomes aware of the error. To ensure transparency the
details of the rectification (the nature, day and time) and the reason for
the rectification must be included in the Acts database. A transitional
provision provides that an alteration of the Acts database only has a
future effect: it does not affect any right or privilege because of
reliance on the uncorrected content of the database and it does not impose
or increase any obligation or liability incurred before the alteration was
made.
316. New section 8 also makes clear that other types of errors may also be
rectified. Power to make changes to the database other than rectifying
errors, is provided in the new subsection 4(1) in that the Secretary may
cause an Acts database 'to be maintained' and if necessary this can be
combined with the capacity to make regulations dealing generally with
alterations (new paragraph 7(1)(b)).
New Part 4 - Miscellaneous
Section 9 - Regulations
317. Power is provided for the Governor-General to make regulations
required or permitted or necessary or convenient for carrying out or giving
effect to the Act.
Part 2 - Consequential amendments
Acts Interpretation Act 1901
Item 6 - At the end of section 40
318. Item 6 inserts new subsection 40(4) to the Acts Interpretation Act
1901 so that the version of an Act or compilation appearing in an Acts
database created under this Act is an official version for the purposes of
the citation of Acts under the Acts Interpretation Act 1901.
Carriage of Goods by Sea Act 1991
Item 7 - Subsection 7(5)
319. Subsection 7(5) of the Carriage of Goods by Sea Act 1991 currently
provides that regulations under section 7 of the Carriage of Goods by Sea
Act 1991 are to be treated as if they had been made by an Act. As this Act
provides that a compilation of an Act includes amendments both by Acts and
legislative instruments this subsection is redundant.
Legislative Instruments Act 2003
Item 8 - At the end of Division 5 of Part 4
320. This item has the effect of moving section 4 of the Amendments
Incorporation Act 1905 which relates to the incorporation of amendments in
reprints of legislative instruments to the Legislative Instruments Act 2003
so that it is located with other provisions about compilations of
legislative instruments. There is no substantive change to this law.
Workplace Relations Act 1996
Item 9 - Subclause 5(1) of Schedule 2
321. This amendment is needed to correct the numbering of the subclause as
a result of the repeal of subclause 5(2).
Item 10 - Subclause 5(2) of Schedule 2
322. This subclause currently provides that for the purposes of
compilations of Acts, regulations under subclause 5(2) of the Workplace
Relations Act 1996 are to be treated as if they had been made by an Act.
As this Act provides that a compilation of an Act includes amendments both
by Acts and legislative instruments this subclause is no longer required.
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