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Legislative Assembly for the ACT: 2000 Week 5 Hansard (9 May) . . Page.. 1241 ..

MR HUMPHRIES (continuing):

Mr Speaker, I might speak at this point generally on the government's amendments rather than speaking in detail on each amendment as it comes up. The amendments deal with a number of issues, in particular two technical issues raised with me very recently by the Director of Public Prosecutions concerning the administration of justice in the ACT. Those issues came to light in decisions last year by the ACT Supreme Court and the High Court of Australia. It is desirable that they be resolved as soon as possible to ensure that the legislation previously enacted by this Assembly can operate as it was always intended to do.

For that reason, the government has decided to address them by making amendments to the Justice and Community Safety Legislation Amendment Bill (No 3). They have been on the table now for some time, and I am sure members have had the chance to study them in some detail. The fact that the problems were identified only recently, combined with the need to move promptly to remedy those problems, requires the Assembly to deal with them by way of amendment to the present bill rather than as a separate bill.

The first problem directly involves ACT legislation, and the second has implications for the ACT which need to be addressed to prevent future difficulties. First of all, there are issues to do with the Evidence Act. The first issue concerns provisions currently contained in Part 12AA of the Evidence Act 1971, relating to the taking evidence by audio-visual link. These provisions will enable evidence to be taken more cost effectively and expeditiously from witnesses who are physically located interstate or in a location in the ACT other than the court-for example, the Remand Centre. They were inserted last year to enable the ACT to participate in a national scheme developed by the Standing Committee of Attorneys-General for taking evidence from interstate or outside the court using audio-visual links.

The Master of the Supreme Court recently found the provisions to be inoperative due to the effect of the Commonwealth Evidence Act 1995, which applies in the ACT. This is because section 8(4) of the Commonwealth act has the effect that only certain provisions of the ACT Evidence Act 1971 are to be operative. The operative provisions are those that are specified in regulations made by the Commonwealth. Those regulations were made before Part 12AA was added to the ACT Evidence Act 1971 and have not been amended to take account of Part 12AA and therefore that part is inoperative.

To give effect to provisions currently contained in part 12AA of the ACT Evidence Act, without being dependent on the Commonwealth's preparedness to act quickly to make necessary amendments to their regulations, the government amendments will ensure that these provisions can take effect in their own right. It is clearly a hangover from the days when the Commonwealth administered the ACT that they would have that power over the enactment of certain ACT laws. I would suggest that such powers no longer are appropriate, given the self-governing nature of the ACT.

To achieve patriation of that power, the government amendments repeal part 12AA in its entirety and insert identical provisions into a different act, the operation of which is not subject to regulations having been made under the Commonwealth act. The act into which the provisions will be transferred by this repeal and insertion process is the Evidence (Closed-Circuit Television) Act 1991. The act will then be renamed the Evidence (Miscellaneous Provisions) Act 1991. The transfer of part 12AA provisions

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