Terms of Reference

AUSTRALIAN LAW REFORM COMMISSION REVIEW OF THE EVIDENCE ACT 1995

I, Philip Ruddock, Attorney-General of Australia, HAVING REGARD TO:

• the importance of maintaining an efficient and effective justice system in which clear and comprehensive laws of evidence play a fundamental role,
• the experience gained from almost a decade of operation of the uniform Evidence Act scheme, and
• the desirability of achieving greater clarity and effectiveness and promoting greater harmonisation of the laws of evidence in Australia,

REFER to the Australian Law Reform Commission for inquiry and report under the Australian Law Reform Commission Act 1996, the operation of the Evidence Act 1995.

1. In carrying out its review of the Act, the Commission will have particular regard to:

(a) the following topics, which have been identified as areas of particular concern:

(i) the examination and re-examination of witnesses, before and during proceedings;

(ii) the hearsay rule and its exceptions;

(iii) the opinion rule and its exceptions;

(iv) the coincidence rule;

(v) the credibility rule and its exceptions; and

(vi) privileges, including client legal privilege;

(b) the relationship between the Evidence Act 1995 and other legislation regulating the laws of evidence, including the provisions of the Judiciary Act 1903, in particular in relation to the laws, practices and procedures applying in proceedings in federal jurisdiction; 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;

(c) 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 Evidence Act 1995;

(d) the application of the rules of evidence contained in the Act to pre-trial procedures; and

(e) any other related matters.

2. In carrying out its review of the Act, the Commission, in keeping with the spirit of the uniform Evidence Act scheme, will:

(a) work in association with the New South Wales Law Reform Commission with a view to producing agreed recommendations;

(b) consult with the other members of the uniform Evidence Act scheme – the Australian Capital Territory and Tasmania;

(c) consult with other States and Territories as appropriate; and

(d) consult with other relevant stakeholders, in particular 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.

3. The Commission is to report no later than 5 December 2005.

Dated: 12^th July 2004

Philip Ruddock

Attorney-General