Media release
Australian Law Reform Commission
27 July 2004
Evidence under review by law reform commissions
The Australia-wide adoption of uniform evidence laws would be an important step towards the creation of a truly national legal system, the nation’s top law reform officer said today.
Australian Law Reform Commission (ALRC) President Prof David Weisbrot said lawyers in some states and territories are in the difficult—and very unproductive—situation of dealing with one set of evidence laws if they appear in federal courts, and a completely different set of rules if they appear in a state or territory court across the road.
Prof Weisbrot’s comments follow the announcement that Australia ’s ‘uniform’ Evidence Acts—currently in use by the Commonwealth, NSW, the ACT and Tasmania —will undergo review. Terms of reference for the inquiry were released today.
“The uniform Evidence Acts were a major milestone, which eliminated many dated evidence and procedural requirements in evidence law. They also ensured the law reflected technological change not known when the common law was shaped over the course of centuries. But the Acts have been in operation now for close to 10 years, so it is timely to review the legislation to identify and address potential improvements.
“We’ll also be looking at how we can encourage greater harmonisation with the other states and territories— Western Australia , South Australia , the Northern Territory , Queensland and Victoria —that currently operate under different evidence laws.”
Prof Weisbrot said the ALRC would work cooperatively with the NSW Law Reform Commission on the review. Both Commissions were involved in the major reviews of evidence laws in the 1980s that led to the adoption of the uniform Evidence Acts.
He said the review specifically will consider such issues as:
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the hearsay rule and its exceptions;
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the opinion rule (expert evidence) and its exceptions;
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the coincidence rule;
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the credibility rule and its exceptions; and
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privileges, including legal professional privilege.
“Many of the problems and complexities of evidence law stem from having a ‘one size fits all’ approach to evidence, whether a trial is conducted before a judge and jury, or before a judge alone.
“Explaining to a jury evidence rules, their exceptions and their application to the facts of a particular case is extraordinarily complicated. One of the things we’ll be investigating is whether different rules could be applied in the majority of cases in which there is no jury,” Prof Weisbrot said.
“It would be a radical step, so we’ll be canvassing the opinions of judges, lawyers and interested members of the community to find out the full range of views before making any recommendations for reform.”
Prof Weisbrot said the two law reform commissions expect to release a paper for public comment later this year. The review is scheduled to be completed in December 2005.