20.41 Concerns about the effects of evidentiary and procedural rules on child witnesses have led to the enactment of new evidentiary provisions since the introduction of the uniform Evidence Acts.
20.42 In the Report of the inquiry into children and the legal process, Seen and Heard: Priority for Children in the Legal Process (ALRC 84), the ALRC and the Human Rights and Equal Opportunity Commission (HREOC) found that across all jurisdictions, the structures, procedures and attitudes to child witnesses within all these legal processes frequently discount, inhibit or silence children as witnesses. In ALRC 84, the ALRC and HREOC made a number of recommendations aimed at remedying this situation, including: allowing pre-recording of children’s testimony; the use of closed circuit television and other evidentiary assistance; reductions in delays between committals and hearings; changes to the rules of competency and admission of hearsay statements of children. As noted below, the Commonwealth and a number of states and territories have adopted many of these recommendations.
20.43 Increased recognition of the difficulties faced by children in the legal system can be attributed to a number of factors, including greater appreciation of the rights of the child (and, in particular, the adoption by Australia of the Convention on the Rights of the Child in 1990); expanded research into the psychological development of children; and greater experience of child witness testimony primarily derived from the increased number of prosecutions of child sex offences.
20.44 Most Australian jurisdictions have enacted procedural provisions intended to assist children to give evidence in a manner that reduces stress and trauma and thereby to assist the court to have access to relevant evidence. For example, Part IAD of the Crimes Act 1914 (Cth) provides, in relation to sexual offences, for the giving of evidence by child witnesses (under the age of 18) by closed-circuit television (CCTV), video recording or other alternative means, and that a child witness may be accompanied by an adult when giving evidence. The Evidence (Children) Act 1997 (NSW) includes similar provisions for alternative means of giving evidence and provision for adult accompaniment. These apply in relation to a broader range of court and tribunal proceedings, but only for child witnesses under the age of 16.
20.45 If there is a need for specific rules of evidence applying to child witnesses, it can be argued that it is not appropriate to provide for these rules within the uniform Evidence Acts. The uniform Evidence Acts attempt to provide broad, general rules of evidence that can be applied regardless of the type of case involved. As noted in IP 28, many of the existing specific rules for child witnesses apply to particular types of proceedings, rather than having general application, and may be better placed in the legislation specific to those offences, or in a more general Evidence (Children) Act (as is the case in New South Wales and Tasmania).
20.46 Another issue is whether evidentiary provisions relating specifically to child witnesses should be separated from procedural rules. In developing the draft Evidence Bill, the ALRC narrowly defined what was to be considered as a law of evidence and covered by the Bill. Rules relating to the gathering of evidence before a trial, and the manner in which the evidence would be given, were defined as procedural rules and excluded from the ALRC’s consideration. It can be noted, however, that while the central part of the statute, Chapter 3, deals with the admissibility of evidence, a number of procedural provisions concerning witnesses and the manner in which evidence is to be given, are contained in Chapter 2 of the Acts.
20.47 While it seems appropriate that procedural rules relating to child witnesses should be contained in legislation outside the uniform Evidence Acts, there are questions about whether specific evidentiary rules should be located with the procedural rules or included in the uniform Evidence Acts, for example, as exceptions to general rules of evidence.
20.48 For example, the Evidence (Children) Act 1997 (NSW) was established as a comprehensive regime for children giving evidence in criminal proceedings. Its provisions combine a number of existing measures that had been set out in the Crimes Act 1901 (NSW) with new measures recommended by the New South Wales Children’s Evidence Task Force and supported by the Wood Royal Commission. It is largely concerned with procedures to assist children in giving evidence, such as provision for the use of CCTV and the availability of support persons for children. However, it also deals with some admissibility issues, including the admissibility of a previous representation of a child made in the course of an interview.
20.49 While it would have been possible to include all evidentiary provisions relating to child witnesses in the Evidence (Children) Act, provisions relating to warnings to be given by judges in jury trials involving the evidence of child witnesses were inserted into the Evidence Act 1995 (NSW) in 2001. Section 5 of the Evidence (Children) Act clearly states that the Act is intended to work alongside and in addition to the Evidence Act 1995 (NSW).
20.50 Similarly, at the federal level, one option would be to enact a Commonwealth version of Evidence (Children) Act to incorporate existing provisions from Part IAD of the Crimes Act 1914 (Cth) and any other provisions that should apply to children giving evidence in federal proceedings.
20.51 In DP 69, the Commissions did not propose that evidentiary provisions relating specifically to child witnesses be included in the uniform Evidence Acts. This view was based on a number of reasons.
Existing evidentiary provisions relating specifically to child witnesses are closely linked with complex procedural issues and the use of technology—for example, video recording, CCTV and screens. This may make the provisions more suitable for inclusion in an Evidence (Children) Act rather than in the uniform Evidence Acts.
Some evidentiary provisions concerning children’s evidence are directed to proceedings in relation to specific offences (such as sexual offences). The inclusion of such provisions would be inconsistent with the Commissions’ policy that the uniform Evidence Acts should be of general application.
More pragmatically, any recommendation for the enactment of evidentiary provisions relating specifically to child witnesses would require the development of uniform provisions. While there may be more consistency in federal, state and territory laws concerning children’s evidence than in rape shield laws, this is still a major project and beyond the resources and timetable of the current Inquiry.
The Commissions’ view
20.52 In relation to children’s evidence more generally, the Commissions’ remain of the view that it is unnecessary for all provisions relating specifically to child witnesses to be included in the uniform Evidence Acts. Many of the existing provisions are closely linked with particular types of proceedings or complex procedural issues and it is considered in these cases that the provisions are more conveniently located in specific legislation dealing with procedural matters. As noted above in Chapter 2, the Commissions recommend that all Australian jurisdictions should work towards the harmonisation of provisions relating to issues such as children’s evidence. Whether this will result in provisions being placed in the uniform Evidence Acts or remaining in acts of specific application is a matter for future consideration.
 Australian Law Reform Commission and Human Rights and Equal Opportunity Commission, Seen and Heard: Priority for Children in the Legal Process, ALRC 84 (1997), [14.2].
 Ibid, Ch 14.
 See Victorian Law Reform Commission, Sexual Offences: Final Report (2004), [5.4].
 See also Evidence (Children and Special Witnesses) Act 2001 (Tas) which applies to children under the age of 17.
 Australian Law Reform Commission, Review of the Evidence Act 1995, IP 28 (2004), [15.39].
 Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), Ch 2.
 For example, s 29 which relates to the giving of evidence in narrative form: see Ch 5.
 Parliament of New South Wales, Parliamentary Debates, Legislative Assembly, 25 November 1997, 2450 (B Langton—Minister for Transport and Minister for Tourism). See also Royal Commission into the New South Wales Police Service, Final Report, vol 5 (1997), Ch 15.
Evidence (Children) Act 1997 (NSW) Pt 3.
 Evidence Act 1995 (NSW) ss 165(6), 165A, 165B.
 G Bellamy, Consultation, Canberra, 8 March 2005.
 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), [18.55]–[18.58].
 Recommendation 2–3.