A joint consultation paper entitled Review of the Evidence Act 1995 looks at the harmonisation of evidence regimes across Australia. The introduction of a single set of evidence laws, applicable throughout the country, would avoid confusion as well as reduce legal costs for business, the Australian Law Reform Commission (ALRC) said in a statement in December 2004.

The inquiry will also examine legal professional privilege, the ‘hearsay rule’ and its many exceptions, and the impact of evidence laws on vulnerable witnesses, ALRC president Professor David Weisbrot said.

It is time that the federal Evidence Act was passed, Weisbrot said, arguing a previous ALRC inquiry should have expedited this process. Parallel legislation has already been enacted in New South Wales, the ACT, Tasmania and Norfolk Island, but the other states and territories have evidence laws of their own.

The review will be conducted cooperatively by the ALRC, the NSW Law Reform Commission, the Victorian Law Reform Commission and the Tasmanian Law Reform Institute.

The existing Evidence Act regulates the way evidence is collected, presented and evaluated in criminal and civil court proceedings. The rules of evidence contained in the Act are therefore central to the operation of the entire Australian justice system.

“In some states, lawyers need to be skilled in at least two different evidence regimes — and more importantly, it is unnecessarily complicated for litigants and costly for business,” Weisbrot said. “Companies have to contend with different rules on such important matters for business as clients’ legal privilege and the storage and maintenance of corporate records.”

And, depending on where a case is being heard, the case will have to be prepared and presented differently if litigation is required. “Anecdotally, commercial litigators seem to favour operating under the Evidence Act regimes, and file accordingly,” Weisbrot said.

Associate Professor Les McCrimmon from the University of Sydney, also a new ALRC commissioner, said many legal professionals believe the sections of the Evidence Act relating to client legal privilege were in urgent need of reform.

“At the moment, in jurisdictions where the uniform Evidence Act operates, the common law rules apply in pre-trial evidence gathering processes such as discovery and subpoenas, but the Evidence Act applies during the trial itself,” McCrimmon said.

There is a strong feeling, he suggested, that there should not be two sets of laws applying concurrently to client legal privilege and “that the Act requires urgent reforms”. “There are significant differences between the common law and the clients’ legal privilege sections of the Evidence Act,” McCrimmon said.

The issues paper summarises the existing evidence regimes in Australia, outlines the areas under review and seeks submissions from interested parties by 18 February this year.