Uniform Evidence Law

In July 2004, the Attorney-General of Australia asked the ALRC to examine the operation of the Evidence Act 1995 (Cth). The legislation is based on a uniform Evidence Act scheme, which was the product of a previous ALRC inquiry. At the time of the commencement of this latest Evidence inquiry, the Commonwealth, New South Wales, Tasmania, the Australian Capital Territory and Norfolk Island were operating under the uniform Evidence Act scheme.

The ALRC was required to work closely with the New South Wales Law Reform Commission (NSWLRC) and the Victorian Law Reform Commission (VLRC), who were conducting similar inquiries into the operation of the uniform Evidence Act.

The primary objectives of this inquiry were twofold: to identify and address any defects in the uniform Evidence Acts; and to maintain and further the harmonisation of the laws of evidence throughout Australia.

During the course of the inquiry, the governments of Victoria, Western Australia and the Northern Territory signalled their intention to enter into the uniform Evidence Act scheme. Further, the government of South Australia announced that the take-up of the uniform Evidence Act had been placed on the legislative reform agenda. Hence, the inquiry provided a strong impetus for the realisation of a truly uniform Evidence regime in Australia.

The inquiry concluded that the uniform Evidence Acts were working well, and that there were no major structural problems with the legislation, or with the underlying policy of the Acts.

While areas of concern were identified and addressed in the final report, the Commissions concluded that a major overhaul of the uniform Evidence Acts was neither warranted nor desirable.

In addition to provisions currently in the uniform Evidence Act, the report discusses specific aspects of the policy framework of the uniform Evidence Act regime, issues relating to the receipt in court of evidence of Aboriginal and Torres Strait Islander traditional laws and customs, and the relationship between the uniform Evidence Act and other legislation.

Key recommendations

ALRC 102 Uniform Evidence Law makes 63 important recommendations for reform which highlight the need in Australia for a single set of streamlined, flexible evidence laws that will protect witnesses as well as parties, recognise the importance of confidential relationships, and curb legal ‘games’ in the courtroom. Some of the recommendations are highlighted below.

Legal education

The inquiry identified certain areas where the uniform Evidence Act’s approach to the admissibility of evidence appears to have caused some confusion. To address this issue, the report recommends the implementation of educational programs to facilitate a better understanding among judicial officers and legal practitioners of:

• the policy underlying the Acts;
• specific provisions, in particular s 41 relating to improper questions in cross-examination and those relating to the admissibility of expert opinion evidence; and
• issues relating to specific types of witnesses, such as children, and specific types of offences, such as sexual assault.

Adducing evidence

The report recommends a change to the test of competence in s 13 of the Acts to make it easier for children and people with a cognitive impairment to give evidence. The Commissions also recommend that the term ‘de facto spouse’ used in the Evidence Act 1995 (Cth) be replaced with the gender neutral term ‘de facto partner’. The definitional change has a significant impact on the compellability of a de facto partner to testify against a defendant in criminal proceedings.

In relation to the examination and re-examination of witnesses, the report makes recommendations dealing with the giving of evidence in narrative form, what constitutes an improper question in cross-examination and the controls on the cross-examination of vulnerable witnesses.

The uniform Evidence Acts introduced significant changes with respect to the proof of documents. A recommendation is made to remove the requirement in s 50 that proof of voluminous or complex documents through the use of a summary only can be made by application to the court before the hearing concerned. The Commissions also recommend modernising the terminology in the Acts to take into account advances in electronic communication.

Admissibility of evidence

Ten of the report’s 20 chapters deal with the admissibility of evidence. In relation to hearsay evidence, of particular note is the recommendation to remove the requirement in civil proceedings where the maker of a representation is available, that the occurrence of an asserted fact be fresh in the memory of that person at the time the representation is made. A recommendation also is made to expand the matters the court must take into account in criminal proceedings when determining if the occurrence of an asserted fact is ‘fresh in the memory’ of the person who made the representation and that person has been or is to be called to give evidence.

The admissibility of expert opinion evidence was a significant issue for this inquiry. The report recommends that s 79 of the uniform Evidence Acts be amended to clarify that the section applies to expert opinion evidence on the development and behaviour of children.

Two recommendations are made regarding admissions in a criminal context. The first is an amendment to s 82 to ensure that evidence of admissions in criminal proceedings that are not first-hand are excluded from the ambit of s 60. The second recommendation clarifies the meaning of the term ‘in the course of official questioning’ as used in s 85.

The Commissions recommend the rewording of sections of the uniform Evidence Act pertaining to tendency and coincidence, to make them easier to understand.

The report recommends that the uniform Evidence Acts be amended to ensure that the credibility rule applies to evidence relevant to the credibility of a witness and relevant to the facts in issue, but not admissible for that purpose, which is also relevant to the credibility of a witness. This recommendation is intended to address a deficiency in s 102 identified by the High Court in Adam v The Queen (2001) 207 CLR 96. Further, the previous removal of provisions under Australian law for an accused in a criminal trial to make an unsworn statement has necessitated a recommendation to repeal ss 105, 108(2) and 110(4) of the Evidence Act 1995 (Cth).

Privilege

The protection of privileged communications was one of the major issues in the inquiry. While it was clear from the submissions and consultations that the privilege provisions are working well, some amendments relating to client legal privilege and privilege against self-incrimination are warranted. The primary aim of the recommendations relating to client legal privilege is to clarify terms or, in some cases, align the Acts with developments at common law which are supported by the Commissions.

A major change recommended by the Commissions is the extension to any compulsory process for disclosure the following categories of privilege: client legal privilege, professional confidential relationship privilege, sexual assault communications privilege and matters of state. In addition to court proceedings, this includes pre-trial discovery and the production of documents in response to subpoena, and in non-curial contexts including search warrants and notices to produce documents. If these recommendations are implemented, the uniform Evidence Act provisions, rather than the common law, will apply in all of these circumstances.

Another major change recommend relates to confidential communications to a person acting in a professional capacity, sexual assault communications and medical communications privileges available under the Evidence Act 1995 (NSW), the Criminal Procedure Act 1986 (NSW) and the Evidence Act 2001 (Tas). The Commissions recommend that a modified version of the NSW provisions, which extend a qualified privilege to such communications, be adopted.

Evidence of Aboriginal or Torres Strait Islander witnesses

In recognition of the fact that the rules of evidence have not been sufficiently responsive to some of the inherent difficulties in proving in an Australian court ATSI traditional laws and customs, the Commissions recommend that the uniform Evidence Acts be amended to include a provision dealing specifically with the admissibility of such evidence. The adoption of a broad definition of ‘traditional laws and customs’, which includes the observances, practices, knowledge and beliefs of an ATSI group, will facilitate the receipt of more diverse evidence which can be used to prove the existence and content of particular traditional laws and customs of the group.

Implementation

The Evidence Amendment Act 2008 (Cth) substantially implements the recommendations of Uniform Evidence Law (ALRC Report 102). The ALRC made a submission to the Senate Standing Committee on Legal and Constitutional Affairs Inquiry into the legislation.

The amending Act incorporates almost all of the recommendations of ALRC 102, except for the recommendations in relation to a general confidential relationships privilege. The Government has indicated that it will address these issues at the time it responds to the ALRC's report Privilege in Perspective: Client Legal Privilege in Federal Investigations (ALRC Report 107).

Recommendations 15–1 and 15–2 were implemented in part by the Evidence Amendment (Journalists’ Privilege) Act 2007 (Cth), the provisions of which were subsequently amended by the Evidence Amendment (Journalists’ Privilege) Act 2011 (Cth). These provisions establish a privilege to protect confidential communications between journalists and their sources. The Family Law Act 1975 (Cth) was also amended to clarify that the best interests of the child remains as the paramount consideration in determining whether evidence should be adduced in children’s proceedings, notwithstanding the existence of a confidential communications privilege in Commonwealth, state or territory legislation.

The recommendations for legislative amendment contained in ALRC 102 have direct application to the Evidence Act 1995 (Cth) and the Evidence Act 1995 (NSW). In the interests of uniformity, it is desirable that the recommendations be adopted by the other participants in the uniform Evidence Act regime (Tasmania and Norfolk Island), and by those jurisdictions which subsequently enact legislation based on the uniform Evidence Acts.

To promote and maintain uniformity as more jurisdictions take-up the uniform Evidence Act, the Commissions recommended that the Standing Committee of Attorneys-General (SCAG) should adopt an Intergovernmental Agreement which provides that, subject to limited exceptions, any proposed changes to the uniform Evidence Acts must be approved by SCAG.

At the time of tabling of ALRC 102, the Australian Attorney-General and the Minister for Justice issued a media release which reiterated the Australian Government’s strong support for national uniformity in evidence laws. SCAG considered and in July 2007 endorsed a Model Uniform Evidence Bill, which is based on the Evidence Act 1995 (NSW) and Evidence Act 1995 (Cth) with amendments as recommended in ALRC 102.

New South Wales has implemented the recommended changes to the Evidence Act 1995 (NSW) with passage of the Evidence Amendment Act 2007 (NSW).

On 15 September 2008, the Evidence Act 2008 (Vic) received assent. The Act is based on the provisions of the Model Uniform Evidence Bill. The bulk of the provisions are due to commence on 1 January 2010 if not proclaimed earlier. One area not covered by the Bill is a privilege to protect confidential communications between journalists and their sources.

The Statutes Amendment (Evidence and Procedure) Act 2008 (SA) amends the Evidence Act 1929 (SA) in relation to the way evidence is taken in sexual offence proceedings, and from other vulnerable witnesses, including children. Some of the amendments are consistent with recommendations in ALRC 102, for example, the adoption of a provision similar to s 275A of the Criminal Procedure Act 1986 (NSW) that sets out a comprehensive and detailed list of inappropriate questions a court must disallow in civil and criminal matters (Recommendation 5-2).

The Evidence Act 2011 (ACT) received assent on 13 April 2011. When it commences, the ACT will have independently joined the Uniform Evidence Act scheme. Previously, the provisions of the Commonwealth Evidence Act 1995 applied directly to the ACT.