1.1 On 12 July 2004, the Australian Government Attorney-General asked the Australian Law Reform Commission (ALRC) to conduct an inquiry into the operation of the Evidence Act 1995 (Cth). The New South Wales Attorney General had similarly asked the New South Wales Law Reform Commission (NSWLRC) on 2 July 2004 to conduct a review of the operation of the Evidence Act 1995 (NSW) in almost identical terms. The ALRC, in consultation with the NSWLRC, published an Issues Paper, Review of the Evidence Act 1995 (IP 28), in December 2004. In IP 28, the main issues relevant to the Inquiry were identified, and background information and over 100 questions designed to encourage informed public participation were provided.
1.2 The Victorian Government announced in 2004 that ‘it is proposing to implement legislation consistent with the model Evidence Acts passed by the Commonwealth and New South Wales parliaments and adapted to the needs of the Victorian courts’. In November 2004, the Attorney-General of Victoria asked the Victorian Law Reform Commission (VLRC) to review the laws of evidence applying in Victoria. The VLRC was directed to review the Evidence Act 1958 (Vic) and other laws of evidence and to advise on the action required to facilitate the introduction of the Uniform Evidence Act into Victoria. The VLRC was required to collaborate with the ALRC and NSWLRC in its review.
1.3 In July 2005, following consultations in every state, the Australian Capital Territory and the Northern Territory, and the receipt of over 50 submissions in response to IP 28, the ALRC, NSWLRC and VLRC jointly published a Discussion Paper, Review of the Uniform Evidence Acts (DP 69).
1.4 The Inquiry commenced on the eve of the tenth anniversary of the Commonwealth and New South Wales Evidence Acts. The uniform Evidence Acts were themselves the product of extensive research and consultation by the ALRC, following its receipt of Terms of Reference in 1979 for an inquiry into the law of evidence. The ALRC produced a series of research reports and discussion papers; an Interim Report, Evidence (ALRC 26) including draft legislation in 1985; and a final report, Evidence (ALRC 38) in 1987, which also contained draft legislation.
1.5 The NSWLRC also conducted an inquiry into the law of evidence that commenced in 1966. It published two reports, a working paper, and three discussion papers during the course of that inquiry. However, when the ALRC received the Terms of Reference for its evidence inquiry in 1979, the NSWLRC suspended its work pending the outcome of the ALRC’s inquiry.
1.6 In its 1988 Report, Evidence (NSWLRC 56), the NSWLRC recommended that the bulk of the ALRC’s proposals be adopted in New South Wales and that the draft legislation be enacted.
1.7 In 1991, the Commonwealth and New South Wales governments each introduced legislation substantially based on—but differing in some respects from—the ALRC’s draft legislation. In the same year, the Standing Committee of Attorneys-General gave in-principle support to a uniform legislative scheme throughout Australia.
1.8 The Commonwealth and New South Wales parliaments each passed an Evidence Bill in 1993 to come into effect from 1 January 1995. The Acts were in most respects identical and are often described as the ‘uniform Evidence Acts’. In 1997, the New South Wales Parliament enacted the Evidence Amendment (Confidential Communications) Act 1997, which incorporated into Part 3.10 of the Evidence Act 1995 (NSW) privileges in relation to professional confidential relationships and sexual assault communications. These amendments are discussed in detail in Chapter 15. Further, in 2002, the Evidence Act 1995 (NSW) was amended to adopt a broader definition of ‘de facto relationship’ and to insert a provision relating to warnings about children’s evidence. Comparable provisions were not introduced into the Evidence Act 1995 (Cth), thus diminishing the uniformity achieved earlier.
1.9 The Evidence Act 1995 (Cth) applies in federal courts and, by agreement, in courts in the Australian Capital Territory. The Evidence Act 1995 (NSW) applies in proceedings, federal or state, before New South Wales courts and some tribunals.
1.10 In 2001, Tasmania passed legislation that essentially mirrors the Commonwealth and New South Wales Acts, although there are some differences. In 2004, Norfolk Island passed legislation that essentially mirrors the Evidence Act 1995 (NSW).
1.11 No other state or territory has yet adopted similar legislation, however there is a strong movement towards the harmonisation of evidence laws in Australia based on the uniform Evidence Act. In May 2005, the Northern Territory Attorney-General asked the Northern Territory Law Reform Committee (NTLRC), ‘[t]o review the Evidence Act (NT) and other laws of evidence which apply in the Northern Territory and to advise the Attorney-General on the action required to facilitate the introduction of the Uniform Evidence Act into the Northern Territory, including the modification of the existing provisions of the Uniform Evidence Act’. By their Terms of Reference, both the VLRC and the NTLRC are directed to collaborate with the ALRC and the NSWLRC in this Inquiry.
1.12 The ALRC has also been advised that the Attorney-General of Western Australia and the Attorney-General of South Australia have both formally placed the introduction of the uniform Evidence Act on the legislative agenda.
1.13 In March 2005, the Queensland Attorney-General asked the Queensland Law Reform Commission (QLRC) to undertake a review under terms of reference similar to the ALRC’s inquiry, with some minor modifications in relation to Queensland specific matters. The QLRC’s Terms of Reference do not require the QLRC to advise on the action required to facilitate the introduction of the uniform Evidence Act into Queensland. Rather, the QLRC is directed to work in association with the ALRC and the NSWLRC with a view to producing agreed proposals for inclusion in DP 69. The QLRC report was tabled in the Queensland Parliament in November 2005.
1.14 In those states and territories that have not adopted the uniform legislation, the law of evidence is a mixture of statute and common law, together with applicable rules of court.
1.15 Under s 79 of the Judiciary Act 1903 (Cth), the laws of each state or territory—including the laws relating to procedure, evidence, and the competency of witnesses—are binding on all courts exercising federal jurisdiction in that state or territory. The effect of this is that the courts of the states and territories, when exercising federal jurisdiction, apply the law of the state or territory rather than the Evidence Act 1995 (Cth), except for those provisions that have a wider reach.
1.16 The passage of the Evidence Act 1995 (Cth) therefore has had the effect of achieving uniformity among federal courts wherever they are sitting, but there is no uniformity among the states or territories when exercising federal jurisdiction. As a practical example, a Brisbane barrister defending a client charged with a federal crime before the Queensland Supreme Court would use that state’s evidence law; but would use the Evidence Act 1995 (Cth) if appearing before the Federal Court, the Federal Magistrates Court or the Family Court on a different matter the following day.
 State Government of Victoria, New Directions for the Victorian Justice System 2004–2014: Attorney-General’s Justice Statement (2004), 26.
 The Discussion Paper is ALRC Discussion Paper 69 and NSWLRC Discussion Paper 47. The VLRC does not ascribe a number to its Discussion Papers. For ease of reference in this Report, the Discussion Paper shall be referred to as ‘DP 69’, or the ‘Discussion Paper’.
 Australian Law Reform Commission, Evidence, ALRC 26 (Interim) (1985).
 Australian Law Reform Commission, Evidence, ALRC 38 (1987). Both reports may be found on the ALRC’s website at <www.alrc.gov.au>.
 New South Wales Law Reform Commission, Evidence (Business Records), LRC 17 (1973) and New South Wales Law Reform Commission, The Rule Against Hearsay, LRC 29 (1978).
 New South Wales Law Reform Commission, Illegally and Improperly Obtained Evidence, WP 21 (1979).
 New South Wales Law Reform Commission, Competence and Compellability, DP 7 (1980); New South Wales Law Reform Commission, Oaths and Affirmations, DP 8 (1980); and New South Wales Law Reform Commission, Unsworn Statements of Accused Persons, DP 9 (1980).
 New South Wales Law Reform Commission, Evidence, LRC 56 (1988), [1.2].
 Ibid, [1.7].
Miscellaneous Acts Amendment (Relationships) Act 2002 (NSW) which extended the non-gender specific definition of ‘de facto relationship’ contained in the Property Relationships Act 1984 (NSW) to a number of statutes including the Evidence Act 1995 (NSW). This is discussed in detail in Ch 4.
Evidence Legislation Amendment Act 2001 (NSW). This is discussed in detail in Ch 18.
 S Odgers, Uniform Evidence Law (6th ed, 2004), [1.1.20].
Evidence Act 2001 (Tas). This legislation came into effect on 1 July 2002.
Evidence Act 2004 (NI).
 Queensland Law Reform Commission, A Review of the Uniform Evidence Acts, Report No 60 (2005).
 Except as otherwise provided by the Constitution or the laws of the Commonwealth.