Page 1318 - Week 04 - Tuesday, 5 April 2011
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Let me briefly summarise the matters raised by the committee. Of importance to note is that the committee considered it necessary to “endeavour to add value to the explanatory statement discussion, largely by addressing issues not raised in the statement”. This is a constant issue raised in the scrutiny of bills committee, and the standout offender is the Attorney-General and his department.
With that headline, the scrutiny committee noted a number of what are described as derogations of human rights. The first relates to the right to preservation of the family in cases when a witness is a member of the defendant’s family. That witness normally could object to giving evidence on certain grounds. Under this law, that person may be compelled to give evidence in proceedings relating to alleged assaults on children or other forms of domestic violence.
Another relates to the right to silence. Under this law, the court or any party other than the prosecutor will be able to comment on the defendant’s failure to give evidence. The committee also raised a question as to the right to a fair trial and the right of a defendant in a criminal trial to examine prosecution witnesses, all in the context of the admissibility of hearsay evidence and the exceptions thereto. The discretion of a judge to dispense with the requirement for reasonable notice to be given by a party wishing to adduce hearsay evidence was also raised. It was in the context of the right to a fair trial as well as the right to prepare a defence.
Finally, in the context of the right to a fair trial and the right to equal protection under the law, the committee raised the question of religious confessions privilege. As I mentioned earlier, the attorney has responded to these matters through a revised explanatory statement. We will need to take those responses on face value, because non-government members in this place have had scant time to consider them in detail.
The intent of this bill is laudable. It is proper for the ACT to have its own evidence law, rather than to rely on the commonwealth’s. It is good that the ACT government has followed the lead of other jurisdictions and taken up the model legislation so as to provide national consistency. But it is not good that this ACT Labor government and this Attorney-General have allowed such little time for this law to be given the due consideration it so rightly and richly deserves, and I condemn the attorney and the government for that.
MR RATTENBURY (Molonglo) (12.20): The Greens will be supporting this bill today. As Mrs Dunne has touched on, the bill will create the ACT’s own Evidence Act for the first time. Key principles of evidence law that govern the operation of our legal system will be set out in the act. These well settled principles have developed over time in Australia and include, firstly, that relevant evidence is admissible to court and irrelevant evidence is not; secondly, that any competent witness can give evidence; thirdly, that parties have the ability to question witnesses via cross-examination; fourthly, that the required standard of proof is beyond reasonable doubt in criminal cases and, in civil cases, is on the balance of probabilities; and, finally, there is the general rule against hearsay evidence.
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