Implementation

The Evidence Amendment Act 2008 (Cth) substantially implements the recommendations of Uniform Evidence Law (ALRC Report 102). The ALRC made a submission to the Senate Standing Committee on Legal and Constitutional Affairs Inquiry into the legislation.

The amending Act incorporates almost all of the recommendations of ALRC 102, except for the recommendations in relation to a general confidential relationships privilege. The Government has indicated that it will address these issues at the time it responds to the ALRC’s report Privilege in Perspective: Client Legal Privilege in Federal Investigations (ALRC Report 107).

Recommendations 15–1 and 15–2 were implemented in part by the Evidence Amendment (Journalists’ Privilege) Act 2007 (Cth), the provisions of which were subsequently amended by the Evidence Amendment (Journalists’ Privilege) Act 2011 (Cth). These provisions establish a privilege to protect confidential communications between journalists and their sources. The Family Law Act 1975 (Cth) was also amended to clarify that the best interests of the child remains as the paramount consideration in determining whether evidence should be adduced in children’s proceedings, notwithstanding the existence of a confidential communications privilege in Commonwealth, state or territory legislation.

The recommendations for legislative amendment contained in ALRC 102 have direct application to the Evidence Act 1995 (Cth) and the Evidence Act 1995 (NSW). ALRC 102 also recommended  that, in the interests of uniformity, the recommendations be adopted by the other then existing participants in the uniform Evidence Act regime (Tasmania and Norfolk Island), and by those jurisdictions which subsequently enacted legislation based on the uniform Evidence Acts.

To promote and maintain uniformity as more jurisdictions take-up the uniform Evidence Act, the Commissions recommended that the Standing Committee of Attorneys-General (SCAG) should adopt an Intergovernmental Agreement which provides that, subject to limited exceptions, any proposed changes to the uniform Evidence Acts must be approved by SCAG (now the Standing Council on Law and Justice).

At the time of tabling of ALRC 102, the Australian Attorney-General and the Minister for Justice issued a media release which reiterated the Australian Government’s strong support for national uniformity in evidence laws. SCAG considered and in July 2007 endorsed a Model Uniform Evidence Bill, which is based on the Evidence Act 1995 (NSW) and Evidence Act 1995 (Cth) with amendments as recommended in ALRC 102.

New South Wales has implemented the recommended changes to the Evidence Act 1995 (NSW) with passage of the Evidence Amendment Act 2007 (NSW).

On 15 September 2008, the Evidence Act 2008 (Vic) received assent. The Act is based on the provisions of the Model Uniform Evidence Bill. The bulk of the provisions are due to commence on 1 January 2010 if not proclaimed earlier. One area not covered by the Bill is a privilege to protect confidential communications between journalists and their sources.

The Statutes Amendment (Evidence and Procedure) Act 2008 (SA) amends the Evidence Act 1929 (SA) in relation to the way evidence is taken in sexual offence proceedings, and from other vulnerable witnesses, including children. Some of the amendments are consistent with recommendations in ALRC 102, for example, the adoption of a provision similar to s 275A of the Criminal Procedure Act 1986 (NSW) that sets out a comprehensive and detailed list of inappropriate questions a court must disallow in civil and criminal matters (Recommendation 5-2).

The Evidence Act 2011 (ACT) received assent on 13 April 2011. When it commences, the ACT will have independently joined the Uniform Evidence Act scheme. Previously, the provisions of the Commonwealth Evidence Act 1995 applied directly to the ACT. In August 2011, the Northern Territory became the most recent Australian jurisdiction to adopt the uniform Evidence Act.