Uniform Tasman evidence law

The Evidence Bill 2008 was introduced into Parliament yesterday. This initiative was first announced in the 2004 Justice Statement, the same document where the Charter consultation was announced. A press release from Hulls yesterday trumpeted the savings for business in the modernisation of Victoria’s largely common-law based law of evidence, as well as some particular amendments to the rules of hearsay and witnesses. This focus on some very narrow features of the bill reflects the lack of any significant support from any significant of the Victorian community for its raison d’etre, which is the replacement of the common law of evidence with more accessible statutory rules. The Victorian Bill, like the Uniform Evidence Legislation movement it follows, is really the brainchild of law reform bodies.

A particular driver in Victoria, as Hulls’s press release notes, is  consistency with other jurisdictions:

Mr Hulls said the new Act would also improve the ability of Victorian courts to conduct cases efficiently and in a way that was consistent with practices in other state courts and the Federal Court. “Uniform national evidence laws are important because they provide consistent rules across all courts,” Mr Hulls said.

In fact, Victoria is presently surrounded by UEL jurisdictions: Tasmania to the south, NSW to the North and the Commonwealth in federal courts (but not federal matters heard in state courts.) On the other hand, South Australia to the west, as well as Queensland, Western Australia and the Northern Territory remain common law jurisdictions. Win some, lose some and, anyway, Victoria jumping ships may prompt the remainder to follow.

But, as I’ve argued elsewhere, Victoria’s evidence law will, in some respects, not be completely uniform with other UEL jurisdictions. Whereas Victoria’s common law is (largely) unaffected by the Charter, all provisions of the new bill will be subject to the interpretation mandate:

32(1) So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights. (2) International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.

The result is that some provisions of the new bill may have a different meaning here than in NSW, even where the NSW meaning has long been settled and Victoria’s provision is identical. The actual differences may not emerge for some time, as they will depend on courts’ calls about the rights compatibility of the accepted meanings and, where a right is limited, whether or not a compatible meaning is available given a provision’s wording and purpose. There’s even the prospect that a Victorian UEL provision will be the subject of a declaration of inconsistent interpretation, effectively a condemnation of several other jurisdictions’ provisions too. Any resulting dialogue will need to be mediated by SCAG.

The other human rights statute jurisdiction – the ACT – is a UEL jurisdiction too, but it doesn’t have this problem because its UEL legislation is actually contained in a Commonwealth statute (though there’s some talk of the statute being ‘repatriated’ to the ACT.) Rather, the jurisdiction Victorians may need to look to to understand the effect of the Charter on their UEL is outside of Australia. New Zealand recently passed an all statutory evidence law, the Evidence Act 2006. Not only is it subject to the interpretation mandate of the New Zealand Bill of Rights Act 1990, but it also contains two provisions of its own to ensure the role of those rights in interpretation:

6 The purpose of this Act is to help secure the just determination of proceedings by— … (b) providing rules of evidence that recognise the import­ ance of the rights affirmed by the New Zealand Bill of Rights Act 1990…

10(1) This Act— (a) must be interpreted in a way that promotes its purpose and principles…

Unfortunately, the NZ Evidence Act 2006 is not part of the UEL scheme and differs in many respects (visible mostly in its superb drafting, in contrast to the somewhat dated and overly worked over early 1990s draft that Victoria will be adopting fifteen years later as part of its supposedly modern justice package.) The good news, though, is that the NZ Act is very clearly influenced by the UEL statutes and is very similar to it in a number of respects, including issues like the core rules, the hearsay and opinion rules and the management of admissions. As a result, the UEL jurisdictions bear a closer resemblance to New Zealand than they do to the remaining common law states.

Indeed, Victoria’s adoption of the UEL will mean that there’ll be a common factor linking all of these jurisdictions: the Tasman Sea. Every jurisdiction that borders the Tasman Sea (New Zealand, Tasmania, Victoria, NSW, the Commonwealth – even tiny Norfolk Island and the Jervis Bay Territory of the ACT) will have thrown out the common law of evidence in favour of a new statute. And, of these jurisdictions, Victoria and New Zealand – who will both have laws that are subject to a human rights interpretation mandate – may have be more uniform than the others.

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