Wednesday, 8 February 2006: Australia must have 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, Australia’s peak law reform agency said today.
“It is crazy that we currently have so many different evidence law regimes operating in this country—it is far too complicated for litigants and lawyers and contributes to unnecessary cost and red tape for business,” Australian Law Reform Commission (ALRC) President Prof David Weisbrot said.
“For example, a Brisbane lawyer who goes into the Supreme Court one day, and the Federal or Family Court the next, needs to master two completely different sets of evidence laws.
“Similarly, if you run a business that operates across state lines, how do you know which law on business records you are meant to comply with? One of them? All of them?”
Prof Weisbrot urged all Australian governments to adopt the recommendations of a major report resulting from a joint 18-month inquiry into evidence law by the ALRC and the New South Wales and Victorian law reform commissions.
The report, Uniform Evidence Law, containing 63 recommendations for reform, was tabled in the Commonwealth and Victorian parliaments and released in NSW today.
Prof Weisbrot said the Commonwealth, NSW, Tasmania, the ACT and Norfolk Islands operate under the uniform Evidence Acts scheme, introduced following a previous ALRC inquiry completed in 1987.
“This inquiry has finally produced real momentum towards a single set of evidence laws, with Victoria, WA and the NT indicating that they intend to enter the uniform scheme,” Prof Weisbrot said.
The inquiry also recommended some refinement of the uniform law, based on 10 years’ experience with its use, to improve the clarity of some provisions, and generally to make the rules of evidence more flexible and relevant to modern court practice.
“Further, we want to ensure witnesses—particularly vulnerable witnesses such as young children—aren’t constantly being interrupted or subjected to tricky or unreasonably hostile questions,” he said.
ALRC Commissioner in charge of the inquiry, Assoc Prof Les McCrimmon, said one important area of change is the law relating to privileged communications, with the report recommending the extension of the uniform Evidence Act client legal privilege provisions to pre-trial proceedings, and the recognition of a professional confidential relationship privilege.
“There are many other relationships besides lawyer/client where there’s a public interest in maintaining confidentiality, for example, doctor/patient and sexual assault counsellor/client, and journalist/source—an area where there has been recent controversy and concern.
“The recommendations in the report will provide some measure of protection to all professional relationships where there is an expectation of confidentiality,” Assoc Prof McCrimmon said.