Page 693 - Week 02 - Thursday, 10 March 2011
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evidence. The purpose of the model provisions was to promote and maintain uniformity and harmonisation of evidence laws across Australian jurisdictions. The model provisions clarified evidence laws by partially codifying complex common law rules and rewriting statutory rules of evidence in a clear and concise manner.
Legislation based on the model provisions was enacted by the commonwealth and New South Wales in 1995. Together these acts became known as the uniform evidence acts. Tasmania later enacted legislation largely mirroring the acts, but with some departures and they were followed by the Norfolk Island Legislative Assembly.
The uniform evidence acts were subject to another inquiry by the Australian, New South Wales and Victorian law reform commissions in 2004. The review found that the uniform evidence acts were generally working well but required some finetuning. The commissions made a range of recommendations which were contained in a report tabled in parliament in 2006.
Those recommendations have been largely implemented by proposed amendments to the uniform evidence acts and take the form of an amended model uniform evidence bill. This is the model uniform evidence law endorsed by attorneys-general in 2007 and will be implemented in the territory through the bill. The model law has already been implemented in the commonwealth, New South Wales, Victorian and Tasmanian jurisdictions.
Mr Speaker, the Evidence Bill 2011 is in most respects uniform with the commonwealth and New South Wales evidence acts. There are minor drafting variations which were required to accord with the drafting style of the ACT. Where the text of the bill does vary for this purpose, it is not intended to change the meaning of the provisions in the bill.
It is important to note that the Evidence Bill diverts from the model evidence legislation endorsed by attorneys-general in three main ways. Firstly, the bill does not include sections 25 and 105 of the model law, which relate to the making of unsworn statements. The traditional right of a defendant in criminal proceedings to make an unsworn statement immune from cross-examination has been abolished in all Australian jurisdictions, including the ACT. These provisions have now been repealed from the commonwealth and New South Wales legislation and have subsequently been removed from a consolidated version of the model evidence legislation.
Secondly, the bill does not replicate division 1B of the model law, which provides for a sexual assault communications privilege. It is not proposed to adopt the privilege in the territory as it offers a more limited protection than the sexual assault communications immunity model already existing in ACT law.
Thirdly, the bill does not replicate division 1A of the model law, which provides for a professional confidential relationship privilege. This privilege is not currently part of ACT law as it has not yet been adopted by the commonwealth. The commonwealth adopted the privilege but limited its application to journalists only.
The ACT, consistent with our approach as a strong supporter of uniformity in evidence law, proposes to adopt the broader model privilege and include it in the
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