Page 3793 - Week 14 - Thursday, 10 December 1992
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Accordingly, this amendment will allow the continuation in force of this Act. Other issues raised by the commission will be the subject of consultation once the commission has issued its final report. I expect to put further proposals in respect of this Act before members in the next session.
Section 64 of the Evidence Act 1971 currently provides that the unsworn evidence of a child under the age of 14 years shall be disregarded unless it is corroborated by other evidence. This has resulted in cases not being proceeded with because of the lack of corroboration of the unsworn evidence of a child witness. I have been concerned about the effect of this provision for some time. Provisions similar to that which the Bill repeals have been widely criticised, on the grounds that they are based on false assumptions about the unreliability of children's evidence, and that it is unsatisfactory to have rigid rules that automatically exclude a child's evidence despite the fact that the evidence appears reliable and truthful. In recent years a number of other jurisdictions have looked at amending their laws of evidence in similar ways to that which is now proposed.
This Bill amends section 64 of the principal Act by omitting subsection (3). This removes the requirement that the unsworn evidence of young children is to be disregarded unless it is corroborated by other evidence, and will make it easier to commence legal proceedings in cases of sexual assault of young children. The Bill makes a minor amendment to section 76F of the Act as a consequence of repealing subsection 64(3).
Clause 10 of the Bill repeals the Australian Capital Territory (Temporary Provisions) Act 1971, which provided for the validation of the principal Act consequent to the disallowance in the Senate of the Evidence Ordinance 1971, as it then was. Clause 4 repeals section 2 of the principal Act, which is no longer required, and substitutes a new section 2 which provides for the validation of the principal Act consequent to the repeal of the Australian Capital Territory (Temporary Provisions) Act 1971.
The Bill provides for a statutory prima facie right to the assistance of an interpreter in proceedings in the Territory. Section 63 of the principal Act, which provides for the giving of evidence in writing for a person unable to speak or hear, is repealed and a new section 63 substituted which provides for the giving of evidence in writing by a witness who is unable to speak or hear where the court is satisfied that the witness is unable to communicate effectively otherwise than in writing. New section 63A is inserted into the principal Act to provide for a right to the assistance of a competent interpreter in a defendant, party or witness to proceedings in any court or body which can hear and receive evidence in the Territory, subject to a discretion in the court or tribunal to dispense with the right where to do so would be in the interests of justice. In circumstances where a court intends to dismiss a charge brought against a non-English-speaking person there would be no point in delaying that conclusion in order to provide an interpreter.
In criminal proceedings, an interpreter is to be provided by the prosecutor, and in civil proceedings by the relevant party. Clause 9 of the Bill repeals section 54AA of the Magistrates Court Act 1930, which provided for the assistance of an interpreter but only in the Magistrates Court. Section 54AA is made superfluous by the provisions in the Bill. Mr Deputy Speaker, I present the explanatory memorandum to the Bill.
Debate (on motion by Mr Humphries) adjourned.
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