Terms of Reference
1.21 The ALRC, NSWLRC and VLRC Terms of Reference are reproduced at the beginning of this Report. The Terms of Reference require the Commissions to focus on the following areas:
the examination and re-examination of witnesses, before and during proceedings;
the hearsay rule and its exceptions;
the opinion rule and its exceptions;
the coincidence rule;
the credibility rule and its exceptions; and
privileges, including client legal privilege.
1.22 The ALRC and the NSWLRC are also directed to consider the relationship between the uniform Evidence Acts and other legislation regulating the laws of evidence, and whether the fact that significant areas of evidence law are dealt with in other legislation poses any significant disadvantages to the objectives of clarity, effectiveness and uniformity.
1.23 In undertaking the Inquiry, the Commissions are also directed to consider recent legislative and case law developments in evidence law, including the extent to which common law rules of evidence continue to operate in areas not covered by the uniform Evidence Acts,together with the application of the rules of evidence contained in the Acts to pre-trial procedures.
1.24 The Commissions, in keeping with the spirit of the uniform Evidence Acts scheme, are directed to work with other law reform bodies. The ALRC, being a federal body, is directed to consult with relevant stakeholders in all states and territories, including government departments, the courts, their client groups and the legal profession, in the interests of identifying and addressing any defects in the current law, and with a view to maintaining and furthering the harmonisation of the laws of evidence throughout Australia.
Definition of ‘law of evidence’
1.25 For the purpose of this Inquiry, the Commissions have adopted the approach to the definition of evidence utilised by the ALRC when it considered these matters in the previous Evidence inquiry. Rather than attempting a precise definition, the ALRC dealt with the issue of definition through an analysis of the topics which should be included and those that should be excluded in any examination of the law of evidence.
Topics Excluded. The approach taken to the problem of definition has been to exclude:
Those topics which should be classified as part of the substantive law or which are so linked to the substantive law that they can only properly be considered in that context. These include legal and evidential burden of proof, parol evidence rule, res judicata, issue estoppel, presumptions.
Those topics of adjectival law which should be classified as procedural rather than evidentiary. The result of this distinction is the exclusion of rules such as those relating to the gathering of evidence (including evidence on commission) the perpetuation of testimony, who begins, notice of alibi evidence, no case submission and the standard of proof applicable.
Topics such as the ordering of witnesses out-of-court, bans on the publication of evidence, duties of the prosecution in calling evidence, the powers of judges and parties to call witnesses and the suggestion that there should be changes in the organisation and operation of forensic scientific services.
1.26 The ALRC identified the following as being included in the law of evidence.
Witnesses – competence and compellability; sworn and unsworn evidence; manner of questioning witnesses.
Rules of admissibility and exclusion – relevance, secondary evidence of documents, hearsay, opinion, admissions and confessions, convictions as evidence of the facts on which they are based, identification, character, prior conduct, privileges, exclusion of evidence in the public interest, exclusionary discretions.
Aspects of proof – judicial notice authentication, standard of proof, and corroboration.
1.27 The Commissions’ Terms of Reference require consideration of the decisions of the High Court, the Federal and Family Courts, the Federal Magistrates Court, the courts of New South Wales and the courts of the Australian Capital Territory relevant to the interpretation of the uniform Evidence Acts. Given that the Commonwealth and New South Wales Acts have counterparts in Tasmania and Norfolk Island, relevant decisions about the meaning of a particular provision may arise in a Tasmanian or Norfolk Island court in relation to evidence legislation in these jurisdictions. The Commissions consider that such decisions form part of the review as they indicate how the present legislation is operating and may highlight deficiencies in it.
1.28 Accordingly, in this Report, reference to the ‘uniform Evidence Acts’ means the Evidence Act 1995 (Cth), the Evidence Act 1995 (NSW), the Evidence Act 2001 (Tas) and the Evidence Act 2004 (NI). Where it is necessary in the context of a discussion to differentiate between the statutes, this will be done expressly.
Breadth of the Inquiry
1.29 The ALRC’s previous Evidence inquiry was lengthy and comprehensive. Although the topics identified in the Commissions’ Terms of Reference for this Inquiry are broad, this has not been interpreted to mean that all aspects of the uniform Evidence Acts must be reviewed again. Based on the submissions received, and the meetings and consultations held, it appears that there are no major structural problems with the legislation or with the policy underpinning it. As was noted by the Law Council of Australia, ‘this review is not the place for a wide-ranging review of the policies underpinning the uniform Evidence Acts’, and ‘[t]he Council accepts the policy framework of the legislation’. The Commissions agree with this view.
1.30 Two community consultation papers were produced prior to this Report. In IP 28, the main issues relevant to the Inquiry were identified, some background information was provided, and informed public participation was encouraged. While assumptions were made in IP 28 about the likely breadth of the Inquiry, this was not meant to inhibit full and open discussion of the issue and policy choices. Issues not raised in IP 28 arose and were dealt with in DP 69. Such issues included the unsworn testimony of children, evidence of Aboriginal and Torres Strait Islander (ATSI) traditional laws and customs and the definition of ‘de facto spouse’. Electronic copies of IP 28 and DP 69 are available on the ALRC website at <www.alrc.gov.au>.
1.31 In IP 28, the ALRC and NSWLRC also noted the potential impact of a large-scale revision of the uniform Evidence Acts. First, the commencement of the Evidence Act 1995 (Cth) and the Evidence Act 1995 (NSW) required judicial officers and legal practitioners to master the Acts’ provisions and to adapt to the modification of many common law evidentiary principles. This educative process is well advanced, and judicial officers and legal practitioners are familiar with the operation of the legislation. The areas that still require attention are identified specifically in this Report.
1.32 Secondly, there are well-founded concerns that any major changes in the uniform Evidence Acts will lead to litigation, with attendant cost considerations, to test the meaning of any new or reworded sections. This could lead to significant uncertainty until the court settles the meaning.
1.33 It follows that a case for change should be made before the Commissions propose a legislative amendment. In this Report, and in DP 69, the Commissions have attempted to reflect accurately the views expressed in submissions and consultations, and to set out clearly the view of the Commissions. Where, in the Commissions’ view, a case for change has been established, a recommendation is put forward. Where no change is proposed, this has been noted either in the discussion in DP 69 or in this Report. The recommendations for reform are summarised at the front of this Report, and the areas where no change is recommended are summarised at the front of DP 69.
1.34 There was not a strong call in submissions and consultations for a more wide-ranging reappraisal. In fact, as outlined in Chapter 2, while areas of concern were identified, a clear message was conveyed to the Commissions that a major overhaul of the legislation is neither warranted nor desirable. Therefore, the Commissions have not carried out a review as extensive as that of the previous Evidence inquiry.
1.35 This Report contains the Commissions’ final recommendations, and commentary explaining the recommendations. Detailed discussion is also provided where the Commissions recommend no change on issues or proposals discussed in DP 69.
1.36 The ALRC’s previous Report on Evidence contained draft legislation which became the basis of the Evidence Act 1995 (Cth) and the Evidence Act 1995 (NSW). Such draft legislation was typical of the law reform effort in those times. Since then the ALRC’s practice has changed, and it does not produce draft bills unless specifically asked to do so in the Terms of Reference. This is partly because drafting is a specialised function better left to the legislative drafting experts and partly a recognition of the fact that the ALRC’s time and resources are better directed towards determining the policy that will shape any resulting legislation.
1.37 However, this reference involves consideration of changes to legislation. The Commissions have found it necessary, and beneficial, to engage in the drafting of amendments and new provisions as part of the process of developing the joint recommendations. A consultant has been retained to assist with this process. The draft provisions are also available to assist those with the responsibility of implementing the recommendations contained in the Report. These draft provisions are set out in Appendix 1.
 Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), .
 Ibid, .
 Evidence Act 2001 (Tas); Evidence Act 2004 (NI).
 Law Council of Australia, Submission E 32, 4 March 2005.
 Australian Law Reform Commission, Review of the Evidence Act 1995, IP 28 (2004); Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005).
 Australian Law Reform Commission, Review of the Evidence Act 1995, IP 28 (2004), [1.45].
 See Ch 4 in relation to unsworn testimony and the definition of de facto spouse, and Ch 19 in relation to evidence of ATSI traditional laws and customs.