Page 4028 - Week 09 - Thursday, 26 August 2010

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This bill preserves the legislation providing a maximum annual percentage rate for a credit contract so that consumers in the ACT will continue to be protected from unfair and extreme interest rates until commonwealth law is established dealing with this matter. The commonwealth government is currently examining different options for providing protections in this area as part of stage 2 of its consumer credit reforms.

The bill makes amendments to the Evidence (Miscellaneous Provisions) Act 1991 to facilitate the giving and receiving of evidence in proceedings before territory courts by audio and audiovisual links from places not covered by model legislation endorsed by the Standing Committee of Attorneys-General in 1997.

In a recent ACT Supreme Court case it was held that the evidence of a witness given by telephone from Victoria was not admissible because the Victorian legislation, which differs from the model legislation, does not have the necessary measures to allow this to happen.

The amendments in the bill will extend the scope of the existing legislation by providing that the location in Victoria, or another place not covered by the uniform scheme, where evidence is being taken is regarded as part of the ACT court for the purpose of the conducting the proceeding. Accordingly, ACT laws relating to evidence, procedure, contempt and perjury will apply.

The bill amends the Supreme Court Act 1933 to ensure that a judge, in a trial by judge alone, must take into account any warnings that would, under the commonwealth Evidence Act 1995, have had to be given to a jury in the case. Currently, judges must take into account only those warnings required to be given to a jury under “territory law”. While the commonwealth act applies in ACT courts, it is not covered by the definition of “territory law”.

This leads to a peculiar situation where, in a judge-alone trial, the judge is bound to direct themselves according to the common law, whereas if the trial involved a jury the judge would be required to apply an appropriate provision of the Evidence Act, and possibly give a rather different set of warnings, in cases where the statute deliberately departs from the common law approach. This situation could lead to an imbalance in the conduct of trials, depending on whether it is presided over by a judge, or a judge and a jury. This amendment will resolve the inconsistency.

A minor amendment also clarifies that judges in judge-alone trials are required to take comments and directions into account, as well as warnings. This amendment further puts the status of trials on equal footing, regardless of whether they are conducted before a judge, or a judge and jury.

Finally, the bill makes a minor amendment to the Juries Act 1967 in order to allow the prescribed scale of jury payments to be made by ministerial determination, by disallowable instrument. This will allow the scale to be indexed annually in a more administratively efficient manner, whilst maintaining an appropriate level of Assembly scrutiny through tabling a disallowable instrument.

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