MOMENTUM IS growing to remedy the problem of the jumble of evidence laws, the Australian Law Reform Commission (ALRC) announced this week.
After first warning that Australia’s evidence laws needed an urgent overhaul almost 20 years ago, the ALRC has joined law reformers from almost every state and territory in an unprecedented review of evidence legislation. A discussion paper, Review of the Uniform Evidence Acts (DP 69), was released on Monday by the ALRC and the NSW and Victorian law reform commissions.
“Evidence law provides the basic operating system that underlies all civil and criminal court proceedings in Australia,” ALRC president Professor David Weisbrot said. “But with a multiplicity of evidence laws operating in Australia, it is unnecessarily complex for lawyers and needlessly costly for litigants and business.”
The ALRC proposed a scheme for uniform evidence legislation in the 1980s, which has now been implemented in the federal courts, and those in NSW, the ACT, Tasmania and Norfolk Island.
Each of the other jurisdictions chose to maintain their own evidence laws.
“This means lawyers in four states and the Northern Territory must be skilled in at least two different evidence regimes, depending upon whether they are appearing in a federal court or a state court on a given day. Similarly, business must contend with many different rules governing important matters such as clients legal privilege and the storage and maintenance of corporate records.”
Weisbrot said that for the first time in almost 20 years there is hope that Australia’s evidence laws will be harmonised. “What began as a joint review by the Australian and NSW law reform commissions has become a national project, with unprecedented political and professional support,” he said.
The Victorian Law Reform Commission is an official partner in the inquiry. And the ALRC is collaborating with the law reform agencies in Queensland, Tasmania and the NT. Western Australia’s Attorney-General has formally placed the uniform Evidence Acts on his government’s legislative agenda, said Weisbrot.
There has been increased support from and consultation with judges, magistrates, lawyers and community groups, said Weisbrot, which he said had shown support for greater harmonisation of evidence laws. “They’ve told us that one of the benefits of a single, coherent evidence code is its accessibility — it’s all in one place so there’s no need to search law libraries to find the common law rules,” he said.
“We now have 10 years’ experience in some jurisdictions with the uniform Evidence Acts. In consultations and submissions so far we’ve found strong agreement that, while some finetuning is required, the Acts generally work well and no dramatic changes are needed.”
DP 69 — What it proposes
ALRC COMMISSIONER in charge of the inquiry, Associate Professor Les McCrimmond, said DP 69 makes proposals for reform in key areas including:
• client legal privilege
• the ‘hearsay rule’ and its exceptions
• exceptions for oral evidence of Aboriginal and Torres Strait Islander traditional laws and customs
• the impact of evidence laws on vulnerable witnesses
McCrimmon said the discussion paper proposes extending client legal privilege to include pre-trial communications between lawyers and their clients. “The legal community is telling us client legal privilege needs clarification. Our consultations have revealed strong support for consistency between pre-trial and trial procedures,” he said.
The ‘hearsay rule’ is a “notoriously vexed” area in most common law countries, said McCrimmon. DP 69 also calls for feedback on the admissibility of hearsay and opinion evidence concerning Aboriginal and Torres Strait Islander law and custom. There should be greater protection of vulnerable witnesses, as well, DP 69 suggests, and courts should be given more clear authority to prevent intimidating, offensive, or humiliating questions in cross-examination.