Momentum growing for national evidence law

Monday, 4 July 2005: Almost 20 years since the Australian Law Reform Commission first warned that Australia ’s jumble of evidence laws needed urgent overhaul, momentum is finally gathering to finish the job, with the ALRC joining with law reformers from almost every state and territory in an unprecedented review of evidence legislation.

“Evidence law provides the basic operating system that underlies all civil and criminal court proceedings in Australia ,” ALRC President Prof David Weisbrot said today.

“But with a multiplicity of evidence laws operating in Australia , it is unnecessarily complex for lawyers and needlessly costly for litigants and business.”

Prof Weisbrot’s comments coincide with the release of a major Discussion Paper Review of the Uniform Evidence Acts (DP 69) by the ALRC and the New South Wales and Victorian law reform commissions.

“The ALRC first proposed a scheme for uniform evidence legislation in the 1980s. It has been implemented in the federal courts, and those in New South Wales , the ACT, Tasmania and Norfolk Island , but each of the other states and territories chose to maintain its 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 client legal privilege and the storage and maintenance of corporate records,” Prof Weisbrot said.

“For the first time in almost 20 years, there’s now real hope that Australia ’s evidence laws will be harmonised. What began late last year as a joint review by the Australian and NSW law reform commissions has become a national project, with unprecedented political and professional support.

“The Victorian Law Reform Commission is now an official partner in this inquiry. We’re also collaborating with the law reform agencies in Queensland , Tasmania and the NT, while WA’s Attorney-General has formally placed the uniform Evidence Acts on his government’s legislative agenda.”

Prof Weisbrot said that extensive consultations with judges, magistrates, lawyers and community groups 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.”

The ALRC Commissioner in charge of the inquiry, Assoc Prof Les McCrimmon, said DP 69 makes proposals for reform in such key issues as:

  • client legal privilege (or ‘legal professional privilege’, as it is known in common law jurisdictions);
  • the ‘hearsay rule’ and its many exceptions;
  • exceptions for oral evidence of Aboriginal and Torres Strait Islander traditional laws and customs; and
  • the impact of evidence laws on vulnerable witnesses, including victims of sexual assault.

Prof 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.

Prof McCrimmon said the inquiry is also considering whether the Commonwealth legislation should be amended to extend a qualified privilege to other professional relationships where there is an expectation of confidentiality; for example, communications between a doctor and a patient, or between a journalist and a source.

“The privilege in these instances would not be absolute—ultimately it would be up to a judge to decide whether the evidence is of such importance to the case that it outweighs the harm of disclosure.”

Prof McCrimmon said the ‘hearsay rule’ was a notoriously vexed area in most common law countries.

“There are so many exceptions to the general rule about whether hearsay evidence can be admitted, and for what purposes it can be used. The proposals we’re putting up for discussion are aimed at addressing some of that complexity and trying to iron out some of the most common problems.”

DP 69 also calls for feedback on the admissibility of hearsay and opinion evidence concerning Aboriginal and Torres Strait Islander traditional law and custom.

“Evidence about customs and usages transmitted across generations through an oral tradition can be very difficult to accommodate in our court system, because it often runs afoul of the hearsay rule.

“This is a particular problem in native title cases. Evidence about continuous ties to the land, land use and customs is often only available through oral histories,” Prof McCrimmon said.

“Similar problems arise in other areas as well, such as where evidence relating to traditional marriage, adoption or inheritance may be relevant.”

Prof McCrimmon said the Discussion Paper also contains proposals aimed at providing greater protection to vulnerable witnesses, by giving courts more clear authority to prevent intimidating, offensive, or humiliating questions in cross-examination.

The participating law reform commissions are consulting widely with relevant stakeholders, and are keen to hear from anyone with an interest in the matters under review.

Submissions—anything from handwritten notes and emailed dot-points to detailed legal commentary—will be accepted until mid-September. These will feed into the final report and recommendations, which must be provided to the Attorney-General in early December 2005.

DP 69 is available online at

Please note: The Discussion Paper contains questions and proposals for community consultation and comment—these are NOT final recommendations for reform.