Page 3552 - Week 08 - Thursday, 18 August 2011

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Evidence (Miscellaneous Provisions) Amendment Bill 2011

Debate resumed from 30 June 2011, on motion by Mr Corbell:

That this bill be agreed to in principle.

MRS DUNNE (Ginninderra) (4.27): The Canberra Liberals will be supporting this bill, although with some reservation which I will address a little later. This bill is the second in a series of three tranches of bills to introduce the territory’s own evidence law, based on model uniform law. I note from the attorney’s presentation speech that we can expect to see the third tranche introduced in the current sitting period.

This bill amends the Evidence (Miscellaneous Provisions) Act 1991, which will be retained in the legislation register to enable the territory to deal with evidence law that is unique to the territory. The Evidence Act 1971 will be repealed. It is intended that the three bills will commence together early in 2012.

This bill seeks to do a number of things. I will deal with each but not necessarily in the order in which the bill itself deals with them. Firstly, the bill takes the opportunity to update, consolidate and reorganise the Evidence (Miscellaneous Provisions) Act so that it sits better in the ACT statute book in terms of drafting protocols and logic.

Secondly, the bill inserts into the Evidence (Miscellaneous Provisions) Act 1991 the elements of the Evidence Act 1971 that need to be preserved when it is repealed. The miscellaneous provisions act will be retained in the legislation register to enable the territory to deal with evidence law, as it arises, when it is unique to the territory. At the same time, the nationwide approach reflected in the new Evidence Act will be preserved.

Thirdly, the bill provides that the court is not bound by the rules of evidence. It may inform itself as it considers appropriate when making determinations in relation to the discretion in making arrangements for witnesses and in determining whether matters should proceed in closed court.

Lastly, and most significantly, the bill restricts access to sexual assault counselling communications in civil proceedings. In essence, this means that counselling notes may not be admitted into evidence in civil proceedings, except by leave of the court. In seeking leave, the applicant must demonstrate a legitimate forensic purpose in having the communications admitted. This extends the current arrangements applying to criminal proceedings. I note that New South Wales, Victoria and South Australia have similar legislation in place.

The explanatory statement rationalises this initiative on this basis:

There is no compelling reason why the protections afforded in criminal proceedings should not be extended to civil proceedings.

But I would argue that there is a compelling reason to review the current arrangement. Indeed, the scrutiny of bills committee, the ACT Law Society and the ACT Bar

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