Evidence of official records

6.66 Section 155 of the Evidence Act 1995 (Cth) facilitates proof of official records. It provides that evidence of Commonwealth records, or public records of a state or territory, may be adduced by producing a document purporting to be such a record, or a certified copy or extract from the record, and signed by the relevant minister, or the person who has custody of the record.[86]

6.67 In DP 69, the Commissions examined whether the application of s 155 of the uniform Evidence Acts to official reasons for decision raises any problems, and, if so, whether these should be addressed through amendment of the uniform Evidence Acts.[87] This discussion arose from a submission made by Justice French, who recommended that s 155 should be clarified, in particular to ensure that official reasons for decisions cannot be admitted on a non-consensual basis at the instigation of the decision maker without the decision maker being put to proof that these were the true reasons that he or she had for making the relevant decision.[88]

6.68 In DP 69, the Commissions analysed a decision of French J in Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs (No 2),[89] in which the Minister sought to rely on the reasons for a decision he had made under the Migration Act 1958 (Cth) some months earlier.[90]

6.69 Counsel for the Minister argued that, as the statement of reasons had been provided pursuant to a statutory duty, it was admissible as a record of the material before the Minister, his findings of fact and his reasons for making the particular decision. The argument continued that the Minister’s statement of reasons constituted a Commonwealth record for the purposes of s 155 and could therefore be admitted under that section, and not excluded as hearsay by virtue of s 59.[91]

6.70 Similar arguments were relied on in an earlier Federal Court case, Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs.[92] In that case, Hely J held that the effect of s 155 of the Evidence Act 1995 (Cth) is to facilitate proof of records that are otherwise admissible and that s 155 is not a general exception to Chapter 3 in relation to admissibility of evidence.[93] French J, following the decision in Tuncok, held that while s 155 authorises the production of evidence of a Commonwealth record, it does not render evidence of such a record proof of the truth of its contents.[94] The statement of reasons signed by the Minister would be admissible only to show that the Minister states that these are his or her reasons, but not to establish the correctness or reliability of that statement.[95] Given that it was for the latter purpose that the statement of reasons was tendered, it was held not to be admissible by virtue of s 155 having regard to the operation of the hearsay rule.[96]

The Commissions’ view

6.71 French J held that s 155 did no more than facilitate proof of the record of reasons the Minister sought to tender but did not address the question of admissibility of the record as the Minister’s reasons. The evidence before French J was an affidavit sworn by the solicitor exhibiting the alleged reasons. As there was an issue as to whether these were the true reasons for the original decision, French J, correctly in the Commissions’ view, approached the tender of the record as a question of admissibility and ruled that the hearsay rule applied to render the evidence inadmissible. The solution was for the Minister to swear the requisite affidavit. The Commissions concluded in DP 69 that, in that event, there did not appear to be any need for amendment of the uniform Evidence Acts.[97]

6.72 The Commissions also concluded that the structure of the Acts and the purposes of the provisions in Chapters 3 and 4 are clear. If there is any uncertainty, the decision in Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) has clarified the matter and there is no need for further statutory clarification.[98]

6.73 No submissions or consultations in response to DP 69 addressed this issue. Accordingly, the Commissions remain of the view that no amendment is required.

[86] The New South Wales and Tasmanian legislation refer to a ‘public document’ of a state or territory: Evidence Act 1995 (Cth) s 155; Evidence Act 2001 (Tas) s 155. The explanation for the differing terminology ‘public record’ and ‘public document’ in s 155 of theEvidence Act 1995 (Cth) and the Evidnece Acts of the States relates to constitutional considerations. Section 51(xxv) of the Australian Constitutiongives the Commonwealth Parliament the power to make laws for the peace, order, and good government of the Commonwealth with respect to the recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the states. ‘Public record’ in s 155 of the Commonwealth Act needs to have the same meaning as in s 51(xxv) of the Australian Constitution. There are no such restrictions on the drafting of s 155 of the New South Wales and Tasmanian Acts. The provision could include the broadly defined ‘document’.

[87] 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), [6.70-6.77]; see Australian Law Reform Commission, Review of the Evidence Act 1995, IP 28 (2004), Q 4–4.

[88] Justice R French, Submission E 3, 8 October 2004. See Australian Law Reform Commission, Review of the Evidence Act 1995, IP 28 (2004), [4.12].

[89] Nezovic v Minister of Immigration and Multicultural and Indigenous Affairs (No 2) (2003) 203 ALR 33.

[90] The reasons for the decision were prepared pursuant to a statutory obligation under s 501G of that Act, but after the date of the decision itself, consequently not falling within the hearsay exception in Uniform Evidence Acts s 65(2)(b).

[91] Nezovic v Minister of Immigration and Multicultural and Indigenous Affairs (No 2) (2003) 203 ALR 33, [48].

[92]Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1069.

[93] Ibid, [64]. His Honour stated that ‘not every Commonwealth record is admissible in all proceedings’: [64]. An appeal by Mr Tuncok to the Full Court of the Federal Court on grounds not related to the evidence point was dismissed: Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 172.

[94] Nezovic v Minister of Immigration and Multicultural and Indigenous Affairs (No 2) (2003) 203 ALR 33, [53].

[95] Ibid, [54].

[96] Ibid, [54].

[97] 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), [6.76].

[98] Ibid, [6.77].