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BUILDING AMENDMENT BILL
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26 June 2008
Statement of Compatibility
BATCHELOR
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BUILDING AMENDMENT BILL
Statement of compatibility
Mr BATCHELOR (Minister for Community Development) tabled following statement in
accordance with Charter of Human Rights and Responsibilities Act:
In accordance with section 28 of the Charter of Human Rights and
Responsibilities, I make this statement of compatibility with respect to the
Building Amendment Bill 2008.
In my opinion, the Building Amendment Bill 2008, as introduced to the
Legislative Assembly, is compatible with the human rights protected by the
charter. I base my opinion on the reasons outlined in this statement.
Overview of bill
The purpose of the bill is to amend the Building Act 1993 to increase the
consumer protection provided by the act by improving the capacity of the
Building Practitioners Board (BPB) and the Plumbing Industry Commission (PIC)
to discipline registered building practitioners and registered or licensed
plumbers who do not comply with the act and the regulations made under the act
as well as other related legislation.
The bill will also make amendments to the act to improve the operation of the
regulatory scheme provided for by the act.
Finally the bill will take the opportunity to clarify terminology used in part
12A of the act.
Page 2624
Human rights issues
1. Human rights protected by the charter that are relevant to the bill
Section 13: privacy and reputation
Section 13 of the charter recognises a person's right not to have his or her
privacy, family, home or correspondence unlawfully or arbitrarily interfered
with. The right to privacy extends to the disclosure of personal information
about the person.
An interference with privacy will not be unlawful provided it is permitted by
law, is certain, and is appropriately circumscribed.
An interference will not be arbitrary provided that the restrictions on
privacy are reasonable in the particular circumstances and are in accordance
with the provisions, aims and objectives of the charter.
Clause 5, clause 6 and clause 19 interfere with the right to privacy, however,
the interference is not unlawful or arbitrary for the following reasons:
Clause 5 and clause 6 (application for registration and beyond)
The proposed measure requires an applicant for registration as a building
practitioner to provide the BPB with information demonstrating their 'good
character'. A non-exhaustive list of factors going to good character will be
provided. The proposed measure changes a system of regular disclosure of
personal information, and creates a new requirement for its collection by the
BPB.
The information is required to assess the good character of applicants before
registration, and to provide a means to continually assess registrants' good
character. The interference is reasonable because building practitioners deal
directly with the public and the potential for conflict and dispute is high.
They enter into contracts involving large sums of money and are often required
to have unsupervised access to homes and property. It is vital that the
industry consists of honest practitioners who are able to act appropriately in
all situations.
The legislation will specify the precise circumstances in which the
interference with privacy will occur and does not give the BPB a broad
discretion to interfere with a person's privacy.
Clause 19 (use of photographs)
This proposal gives the Plumbing Industry Commission (PIC) power to endorse
the licence or registration cards of plumbing practitioners with their
photographs. It supports the PIC's current power to require applicants for
licensing or registration to supply their photographs.
The power will only be used to endorse applicants' photographs on registration
and licence cards and for internal use by the PIC in its computerised
registration/licence system. It will assist consumers to confirm a
practitioner's identity, the currency of their licence and/or registration,
and the classes of plumbing work they are entitled to perform.
The interferences are mitigated by the existing protection of section 259A of
the act, which prevents a member or former member of the PIC or anyone
employed or connected with the PIC to make improper use of any information
provided to the PIC.
For all of the above reasons, there is no limitation on the right to privacy.
Section 25(1): right to be presumed innocent
Section 25(1) of the charter recognises an individual's right to be presumed
innocent until proved guilty according to law.
Clause 10 (section 179B -- conduct of company or partnership to be conduct of
building practitioner director or partner)
This proposal deems the director of a company to be responsible for the
professional conduct of the company for the purposes of inquiry by the BPB,
where they are a registered building practitioner, nominated as the registered
building practitioner on the building permit. The BPB is a professional
disciplinary body.
The right to be presumed innocent is not engaged because the measure relates
only to inquiry by the BPB, and does not involve any criminal offence or
infringement or hearing by a court.
Section 26: right not to be tried or punished more than once
Section 26 of the charter recognises a person's right not to be tried or
punished more than once for an offence in respect of which he or she has
already been finally convicted or acquitted in accordance with law.
Clause 9 (disciplinary action -- building practitioners)
This proposal provides a new ground for the BPB to inquire into the
professional conduct of a building practitioner for failure to comply with a
requirement of the Domestic Building Contracts Act 1995 (DBCA). Inquiries into
the professional conduct of practitioners are carried out by the BPB under
sections 178 and 179 of the Building Act. The BPB is a professional
disciplinary body which inquires only into building practitioners conduct. The
right not to be tried or punished more than once is not engaged, as the
proposal relates only to inquiry by the BPB, and does not involve any criminal
offence or hearing by a court.
Section 24: fair hearing
Section 24(1) of the charter recognises an individual's right to have a
proceeding determined by a competent, independent and impartial court or
tribunal after a fair and public hearing.
Currently the BPB may suspend a practitioner's registration pending an inquiry
if it is considered to be in the interests and the safety of the public. The
word 'safety' is generally limited to the 'physical' safety of a person.
Clause 8 (section 178(3) -- inquiry into conduct of registered building
practitioner)
This proposal extends the BPB's existing discretion to immediately suspend a
practitioner's registration pending (i.e. before) inquiry, to circumstances
where the public interest is at risk. For example, this is where a
practitioner's repeated misconduct exposes current or future consumers to
unacceptable risks, such as economic loss or where registration was gained
using fraud or misrepresentation.
Page 2625
As a consequential measure clause 4 includes section 178 in the provisions of
section 146(2) of the act, which excludes certain decisions from being stayed.
This means that these decisions have immediate effect unless the Building
Appeals Board directs otherwise.
These measures limit the right to a fair hearing but the limit is reasonable
and can be demonstrably justified under section 7 of the charter.
(a) the nature of the right being limited
Fair hearing is an important right which is central to our justice system. The
purpose of the right is to ensure the proper administration of justice. It is
concerned with procedural fairness and the requirement that a court or
tribunal be unbiased, independent and impartial.
(b) the importance of the purpose of the limitation
The limitation is for an important purpose: to protect the public where harm
could be caused by the continued conduct of a building practitioner.
(c) the nature and extent of the limitation
The right is only limited to the extent that a person's registration is
suspended until there is a full hearing at the inquiry. Further, the measures
will be only be used where a high threshold is satisfied and where the BPB has
determined through its preliminary assessment power that it will hold an
inquiry. Additionally, a person's appeal rights are preserved because any
decision by the BPB, including the decision to suspend registration pending
inquiry, is subject to appeal to the Building Appeals Board.
(d) the relationship between the limitation and its purpose
There is a direct relationship between the limitation and the purpose of
protection of the public.
(e) any less restrictive means reasonably available to achieve its purpose
There are no less restrictive means reasonably available to achieve the
purpose of the limitation.
Conclusion
I consider that the bill is compatible with the charter because to the extent
that some provisions may limit rights, those limitations are reasonable and
demonstrably justified in a free and democratic society.
PETER BATCHELOR, MP Minister for Community DevelopmentMr BATCHELOR (Minister for Community Development) -- I move: That this bill be now read a second time. The Brumby Labor government's investment in making Victoria the best place to live, work and raise a family is attracting more people to Melbourne and Victoria faster than predicted. Victoria's population is booming because people value our state's livability. Population growth is good for our economy, it creates jobs and it strengthens communities. All this activity is generating a major growth in building services. ABS statistics show that building approvals in Victoria jumped 48 per cent in January of this year, which provided a record value for that month of $2.64 billion. This growth is well ahead of the national growth of 15.7 per cent. The figures show confidence in the Victorian economy as more people are investing in new buildings and thereby creating new jobs. In its report Housing Regulation in Victoria -- Building Better Outcomes, released by the Treasurer on 17 April 2006, the Victorian Competition and Efficiency Commission stated that 'Practitioner registration and licensing are intended to help achieve good building outcomes and to strengthen consumer confidence in the industry'. It further stated that 'The building permit and registration system must be enforced to be effective'. The Building Practitioners Board (BPB) is critical for ensuring that issues relating to the conduct and ability to practise of registered building practitioners are dealt with effectively and appropriately. A review of the provisions of the act relating to the board has found that additional powers are needed to address gaps in its effectiveness. This bill responds to that need. The proposed amendments will enable Victoria's building regulation system to deal more effectively with consumer complaints. The bill will: improve consumer protection and enhance the standards of building and plumbing practitioners; and improve the operation of regulatory schemes established under the Building Act 1993. Many different types of building practitioners are covered by this legislation including builders, building surveyors, building inspectors, quantity surveyors, engineers and draftspersons. The Building Act 1993 established the Building Practitioners Board, which registers building practitioners and undertakes inquiries into the activities of those registered building practitioners. The board is the front line in ensuring the quality of people in the industry. Second reading
Page 2626
Overview of disciplinary powers The current powers of the board to impose sanctions for breaches of the act are not sufficiently flexible and do not provide for a proportional response to the range of breaches which the board hears. Where it identifies a knowledge or practice 'gap', the board lacks the power to require a registered practitioner to undertake a course or training. Additionally, the power to cancel registration is of limited value, as currently a practitioner whose registration has been cancelled can simply reapply for registration and the board must register the practitioner if the requirements of section 169 of the act have been fulfilled, unless the board can demonstrate that the applicant is not of good character. There is no intermediate sanction between the lowest level -- i.e. , a reprimand -- and the highest levels -- i.e., cancellation or suspension of registration for up to three years. The maximum penalty of 50 penalty units has limited leeway to provide an effective response to the nature of the breach. The bill provides the board with a new range of powers from reprimand, to suspension, cancellation, disqualification, increased fines, and requiring a person to complete training or instruction. The amendments will provide a new power to disqualify a person from being registered for up to three years. This can be added to the power to cancel registration to ensure that a practitioner cannot turn around the next day after registration has been cancelled and apply for new registration. They increase the maximum available fine to 100 penalty units for each inquiry. This brings the fine to the limit available under the act. To provide for consistency, the level to which the Plumbing Industry Commission can issue a penalty will also be raised to 100 penalty units. They also extend the grounds for suspension of registration prior to holding an inquiry, where it is in the interests of the public to do so. This will be used only where the practitioner's conduct poses a significant risk to the public or it has been demonstrated that they are not a fit and proper person to operate as a registered building practitioner. These new and improved powers will assist the board to effectively discipline or remove practitioners who do not comply with the requirements of the act and regulations, and improve the standing of the industry. The bill also provides a new power to determine the good character of an applicant as part of its decision making on whether to register the person. In addition, practitioners will be required to advise the board of any change to the 'good character' information provided in their application. This will enable the board to inquire into any impact that change of information should have on the practitioner's registration. Company directors deemed responsible The amendment will also clarify and strengthen the link between the conduct of a building company and the registered building practitioner nominated on the building permit so that the director is responsible for the work and conduct of the company. A significant proportion of domestic building work in Victoria is carried out by companies. Such companies are required to have at least one director who is a registered building practitioner. However, the actual building work may be carried out by an unregistered building practitioner. Where breaches of the act or regulations are alleged, it can be difficult for the board to bring an inquiry against a registered building practitioner. In this circumstance the consumer may have no redress against the registered building practitioner who is responsible for the conduct of the company and the board may be unable to impose any disciplinary sanction in respect of breaches of the act. The amendment 'deems' the director of a company, or partner, to be responsible for the conduct of the company. Building surveyors The bill contains two provisions affecting building surveyors. The first clarifies the role of municipal building surveyors working outside municipal districts. The second will implement a two-tiered building surveyor system as part of national reforms. Victoria introduced a competitive environment for the issuing of building and occupancy permits in 1993, through a privatised system that allowed for 'private' building surveyors to issue building and occupancy permits anywhere in the state. Under the current act it is uncertain whether a municipal building surveyor or other council-employed building surveyor can act outside the municipal district with the full powers of a municipal building surveyor or with the more limited powers of a private building surveyor.
Page 2627
The bill clarifies that a municipal building surveyor working outside the municipal district will have the same role and powers of a private building surveyor while still retaining the title municipal building surveyor. This clarification will not impact on current arrangements under sections 191,192, 214 to 216 and 221 of the act. The second of the amendments will enable adoption of the COAG national accreditation framework. Victoria is signatory to an agreement of the Australian Building Codes Board to implement a national two-tiered building surveyor/certifier system. The bill will recognise that there are two types of building surveyors. One will be a building surveyor (unlimited) who is unrestricted in the scope of work and the other will be a building surveyor (limited) whose scope of work will be limited to practising in respect of buildings up to three storeys in height and a maximum floor area of 2000 square metres. With a shortage of building surveyors currently in the system this amendment will increase the number of building surveyors available to issue building permits while still maintaining protection of the consumer. A person who is currently registered as a building surveyor will be grandfathered into the unlimited category. The required qualifications will be set under regulations in the same manner as for other building practitioners. Plumbers The Building Act also regulates plumbing work under part 12A of the act, and this bill provides amendments that specifically address limitations of the current plumbing regulations under that part. The Plumbing Industry Commission has the power to suspend a plumber where a plumber is found in breach of the act and regulations. In some cases there are mitigating circumstances that may have impacted on the plumber's actions and behaviours. The proposed amendment will enable the Plumbing Industry Commission to have the flexibility to allow it to respond to mitigating circumstances argued during the inquiry and, where appropriate, enable a practitioner to continue working in his or her trade while carrying out the requirements of the order, which could include conditions to be complied with. In the event that the plumber has breached the act and/or regulations during the period that the suspension has been suspended or has failed to comply with the conditions imposed, the Plumbing Industry Commission will have the power to reinstate the suspension following an inquiry. The bill will also amend the definition of completed work for the purpose of the issue of a compliance certificate for plumbing work. Currently a compliance certificate is issued when the plumbing work is completed. 'Completed' currently means when it is used or capable of being used. This definition does not reflect the changing nature of the plumbing industry where plumbers are being contracted to undertake aspects of plumbing work. In this case a plumber would not be required to issue a compliance certificate for the work that they have completed. This places a responsibility on the final plumber along the chain, as they would have to certify work which they did not complete or supervise. As part of this proposal, the bill provides a mechanism for obtaining a compliance certificate where a plumber has walked off the job before completing the plumbing work and does not intend to return. The bill also clarifies some terminology used in the act and makes other machinery amendments. One such amendment is making it an offence to use the title of plumbing practitioner when not registered or licensed as a plumber. Conclusion This bill updates the powers of the Building Practitioners Board, providing more flexibility and greater powers to better reflect the realities of the breaches occurring in the industry. It provides a mechanism to reinforce the responsibility of a registered builder who is a director of a building company for work carried out by the company. It also implements national reforms to address the shortage of surveyors and clarifies the powers of municipal building surveyors, and provides a better regulatory framework for the plumbing industry. This bill will strengthen consumer protection and increase consumer confidence in domestic building, and result in a more reputable building and plumbing profession in Victoria. I commend the bill to the house. Debate adjourned on motion of Mr CLARK (Box Hill). Debate adjourned until Thursday, 10 July.
EVIDENCE BILL
Statement of compatibility
Mr HULLS (Attorney-General) tabled following statement in accordance with
Charter of Human Rights and Responsibilities Act:
In accordance with section 28 of the Charter of Human Rights and
Responsibilities, I make this statement of compatibility with respect to the
Evidence Bill 2008 (the bill).
In my opinion, the bill as introduced to the Legislative Assembly, is
compatible with the human rights protected by the charter. I base my opinion
on the reasons outlined in this statement.
Overview of bill
The purpose of the bill is to promote and maintain uniformity and
harmonisation of evidence laws across Australian jurisdictions. The bill
clarifies evidence laws by 'codifying' complex common law rules, rewriting
current statutory rules of evidence in a clear and concise manner and
organising these rules in a logical order.
The policy behind the bill is that all relevant and reliable evidence that is
of an appropriate probative value should be admissible in court proceedings,
unless such evidence would cause unfair prejudice to a party to those
proceedings.
The bill contains overarching provisions giving broad judicial discretions to
exclude evidence or limit its use in certain circumstances.
These judicial discretions operate as safeguards that protect and balance the
rights of parties to proceedings (civil and criminal), the rights of witnesses
and the importance of the court hearing all relevant, reliable and probative
evidence. They are consistent with and give effect to the rights under the
charter, particularly the right to a fair hearing under section 24(1). The
overarching judicial discretions and safeguards operate together with other
specific safeguards in the bill.
The primary purpose of the bill is to set out the rules of evidence that apply
to all proceedings in a relevant court with the aim of ensuring a fair hearing
for persons appearing before the courts.
Human rights issues
The following analysis contains a discussion of each of the charter rights
raised by the bill.
Section 8(3): equal protection by the law
Section 8(3) of the charter provides that every person is equal before the law
and is entitled to the equal protection of the law without discrimination.
Discrimination means discrimination within the meaning of the Equal
Opportunity Act 1985 (EO Act) on the basis of an attribute set out in section
6 of that act. This right is engaged on a number of occasions by the bill
where, prima facie, there appears to be discrimination on the basis of one or
more of the attributes under the EO Act.
However, under the charter, the right to be free from discrimination in
section 8(3) is qualified by section 8(4), which provides that measures taken
for the purpose of assisting or advancing a person or groups of persons
disadvantaged because of discrimination do not constitute discrimination under
the charter. This recognises that substantive equality is not necessarily
achieved by treating everyone equally, and that affirmative action or positive
discrimination may be necessary to achieve equality for some groups in the
community.
The following provisions engage the right to equal protection before the law
but the right is not limited because of the qualifying provision contained in
section 8(4) of the charter:
Clause 30 -- Interpreters
Clause 31 -- Deaf and mute witnesses
Clause 41 -- Improper questions
Clause 42 -- Leading questions
Clause 61 -- Exceptions to the hearsay rule dependent on competency
Clause 72 -- Exception -- Aboriginal and Torres Strait Islander traditional
laws and customs (exception to the hearsay rule)
Clause 78A -- Exception -- Aboriginal and Torres Strait Islander traditional
laws and customs (exception to the opinion rule)
Clause 85 -- Criminal proceedings -- reliability of admissions by defendants
Clause 165A -- Warnings in relation to children's evidence
Clause 13
Clause 13 changes the existing test for determining the competence of a
witness. The test for competence is not based upon existence of a disability.
Rather, it is focused on the capacity of the individual witness to understand
and answer questions put to them. Although the clause includes persons who, by
reason of a disability, do not have the capacity to understand a question
about a fact or give an answer, the clause is not limited to such persons.
Incapacity can be 'for any reason'. Further, the test is only met where the
incapacity cannot be overcome and clause 13(2) ensures that a finding that a
person is incapable of understanding and answering questions in relation to
one fact does not preclude the person from giving evidence in relation to
other facts.
The test for competence under clause 13 is considerably more inclusive than
the existing test. By focusing on the capacity of the individual to understand
and answer questions, rather than the existence of a disability, clause 13
gives effect to the rights of persons with disabilities to recognition and
equality before the law.
Clause 165
Clause 165 requires a warning to be given to a jury, if a party so requests,
regarding the unreliability of certain kinds of evidence, including for
reasons of age, ill health, injury or the like. This limits the right of
persons with disabilities or of advanced age to be equal before the law.
However, the limit upon the right is reasonable and justifiable in a free and
democratic society for the purposes of section 7(2) of the charter having
regard to the following factors:
Page 2629
(a) the nature of the right being limited
Freedom from discrimination and the right of all people to be treated equally
by the law regardless of any disability or impairment.
(b) the importance of the purpose of the limitation
The purpose of this limitation is to give effect to an accused person's right
to a fair trial by ensuring that warnings can be given to a jury regarding
unreliable evidence.
(c) the nature and extent of the limitation
The court has a discretion to give a warning to the jury regarding evidence
the reliability of which may be affected by age or disability.
It is only where reliability of evidence is affected that the warning can be
given. There is no automatic assumption that persons of advancing age or with
disabilities will give unreliable evidence. A judge will need to be satisfied
that the evidence may be unreliable in the individual circumstances of each
case.
(d) the relationship between the limitation and its purpose
The ability to give a warning is directly and rationally connected with the
purpose of ensuring a fair trial as it is limited to circumstances in which
the reliability of the evidence may be affected by age or disability.
(e) less restrictive means reasonably available to achieve its purpose
There are no less restrictive means of achieving this purpose.
(f) other relevant factors
It is also important to note the safeguard in clause 165(3) that enables the
judge to refuse to give a warning if there are good reasons for not doing so.
(g) conclusion
This is a reasonable limitation of the right to recognition and equality
before the law because the primary aim of ensuring that an accused person has
a fair trial is furthered by the capacity to warn a jury that evidence may be
unreliable because of factors affecting a witness.
Section 12: freedom of movement
Section 12 of the charter provides that every person lawfully in Victoria has
the right to move freely within Victoria and to enter and leave it and has the
freedom to choose where they live.
The following provisions engage and limit the right to freedom of movement
because they provide for a person to be required to come before the court to
give evidence or empower the court to take further action if a witness fails
to attend proceedings, such as issuing a warrant or a fine. To the extent that
a person is required to attend the court under these provisions then the
person's freedom of movement is limited:
Clause 12 -- Competence and compellability
Clause 36 -- Person may be examined without subpoena or other process
Clause 46 -- Leave to recall witness
Clause 169 -- Failure or refusal to comply with requests
Clause 194 -- Witnesses failing to attend proceedings
However, the limit upon the right is clearly reasonable and justifiable in a
free and democratic society for the purposes of section 7(2) of the charter
having regard to the following factors:
(a) the nature of the right being limited
The right to move freely within Victoria encompasses a right not to be forced
to move to, or from, a particular location and includes freedom from physical
barriers and procedural impediments.
(b) the importance of the purpose of the limitation
The limitation is important because it enables a court to examine relevant,
competent and compellable witnesses who may hold relevant evidence and or
information which may bring to light the truth of disputed facts and evidence.
The ability to secure the presence of such witnesses is essential to the
effective administration of the justice system and the right to a fair
hearing.
(c) the nature and extent of the limitation
Clauses 12, 46 and 169 limit the person's freedom of movement to the extent
that a person may be compelled to be physically present at the court or
another location for a limited time for the purpose of giving evidence.
Clause 36 limits a person's freedom of movement to the extent that the person
cannot leave the court until excused by the court from giving evidence.
Clause 194 limits a person's freedom of movement to the extent that a person
who has failed to attend proceedings may be apprehended and brought before a
court.
(d) the relationship between the limitation and its purpose
The limitation on the free movement of a person by requiring the presence of
the person at court to give evidence is directly and rationally connected to
the purpose of ensuring the effective administration of the justice system and
the right to a fair hearing.
(e) less restrictive means reasonably available to achieve the purpose
There are no less restrictive means of achieving this purpose.
(f) other relevant factors
It is also important to note the practice of courts to allow witnesses to
leave the court temporarily if their evidence is not required immediately, and
to release witnesses once they have given evidence. In addition, the court's
ability to issue warrants, fines or make other enforcement orders under clause
194 is a discretionary one.
(g) conclusion
These are reasonable limitations of the right to freedom of movement because
the justice system would not be able to function if the courts did not have
the power to compel persons to attend before them and give evidence.
Page 2630
Section 13(a): right to privacy and reputation
Section 13(a) of the charter requires that a public authority must not
unlawfully or arbitrarily interfere with a person's family or home. The right
to privacy concerns a person's 'private sphere', which should be free from
government intervention or excessive unsolicited intervention by other
individuals. An interference with privacy will not limit the right if the
interference is neither arbitrary nor unlawful. Arbitrariness will not arise
if the restrictions on privacy accord with the objectives of the charter and
are reasonable given the circumstances. An interference will not be unlawful
if the law, which authorises the interference, is precise and circumscribed
and determined on a case-by-case basis.
The right to privacy under section 13(a) of the charter is engaged by the
following provisions of the bill because a witness may be required to divulge
personal information including visual identification evidence, or privileged
information. In each circumstance, the right to privacy is not limited because
the interference is provided for in law and will occur in circumscribed and
precise circumstances subject to the court's discretion on a case-by-case
basis:
Clause 12 -- Competence and compellability
Clause 29 -- Manner and form of questioning witnesses and their responses
Clause 48 -- Proof of contents of documents
Clause 114 -- Exclusion of visual identification evidence
Clause 118 -- Legal advice
Clause 119 -- Litigation
Clause 120 -- Unrepresented parties
Clause 121 -- Loss of client legal privilege -- generally
Clause 122 -- Loss of client legal privilege -- consent and related matters
Clause 123 -- Loss of client legal privilege -- defendants
Clause 125 -- Loss of client legal privilege -- misconduct
Clause 126 -- Loss of client legal privilege -- related communications and
documents
Clause 127 -- Religious confessions
Clause 131 -- Exclusion of evidence of settlement
Clause 133 -- Court may inspect etc. documents
Clause 169 -- Failure or refusal to comply with requests
Clause 178 -- Convictions, acquittals and other judicial proceedings
Clause 179 -- Proof of identity of convicted persons -- affidavits by
members of state or territory police forces
Clause 180 -- Proof of identity of convicted persons -- affidavits by
members of Australian Federal Police
Section 15: freedom of expression
Section 15(2) of the charter provides that every person has the right to
freedom of expression -- this includes the right not to express. This right is
engaged by a number of provisions of the bill, which would compel a person to
answer certain questions or express certain information to the court. Section
15(3) of the charter provides that special duties and responsibilities attach
to this right and it may therefore be subject to lawful restrictions
reasonably necessary to respect the rights and reputation of other persons or
for the protection of national security, public order, public health or public
morality. Public order can be defined as the sum of rules that ensure the
peaceful and effective functioning of society.
The bill clarifies evidence laws with the aim of ensuring that all relevant
and reliable evidence that is of an appropriate probative value should be
admissible unless such evidence would cause unfair prejudice to a party to a
court proceeding. This is a key element of public order.
The following clauses of the bill constitute lawful restrictions on the
freedom of expression under section 15(3) of the charter:
Clause 10 -- Parliamentary privilege preserved
Clause 12 -- Competence and compellability
Clause 15 -- Compellability -- Sovereign and others
Clause 16 -- Competence and compellability -- judges and jurors
Clause 29 -- Manner and form of questioning witnesses and their responses
Clause 37 -- Leading questions
Clause 38 -- Unfavourable witnesses
Clause 39 -- Limits on re-examination
Clause 41 -- Improper questions
Clause 101 -- Further restrictions on tendency evidence and coincidence
evidence adduced by prosecution
Clause 103 -- Exception -- re-establishing credibility
Clause 121 -- Loss of client legal privilege -- generally
Clause 122 -- Loss of client legal privilege -- consent and related matters
Clause 123 -- Loss of client legal privilege -- defendants
Clause 125 -- Loss of client legal privilege -- misconduct
Clause 126 -- Loss of client legal privilege -- related communications and
documents
Clause 127 -- Religious confessions
Clause 131 -- Exclusion of evidence of settlement negotiations
Clause 145 -- Certain Crown certificates
Clause 169 -- Failure or refusal to comply with requests
Clause 194 -- Witnesses failing to attend proceedings
Clause 195 -- Prohibited question not to be published
Section 19: cultural rights
Section 19(2) provides that Aboriginal persons hold distinct cultural rights
and must not be denied cultural rights, including the right to maintain their
kinship ties with other members of their community.
Kinship ties play an important role in Aboriginal communities.
The notion of kinship ties is closely linked to other cultural and religious
practices.
Clause 18 of the bill provides that the court may exercise its discretion to
excuse a person from the requirement to give evidence against a spouse, de
facto partner, parent or child, where there is a likelihood that harm would or
might be caused (whether directly or indirectly) to the person or to the
relationship between the person and the defendant, and the nature
Page 2631
and extent of that harm outweighs the desirability of having the evidence
given. The persons who may be excused from giving evidence under this provision
are only the spouses, de facto partners, parents and children of the defendant.
The judicial discretion to excuse a person from giving evidence does not
extend to all persons who have a relationship with the defendant, for example,
siblings, aunts or uncles. Where a person has kinship ties with the defendant,
other than as a spouse, de facto partner, parent or child, they may be
compelled to give evidence against the defendant. While this will not
necessarily result in a severance of the kinship ties it has the potential to
cause harm to the kinship relationship, and the right in section 19(2) may
therefore limited.
However, to the extent that the right may be limited, it is reasonable and
justifiable in a free and democratic society for the purposes of section 7(2)
of the charter having regard to the following factors:
(a) the nature of the right being limited
The right of an individual to maintain their kinship ties is an important
Aboriginal cultural right.
(b) the importance of the purpose of the limitation
The purpose of the limitation is to ensure that all relevant and reliable
evidence that is of an appropriate probative value is admissible.
(c) the nature and extent of the limitation
The right to maintain kinship ties is limited only as far as the kinship
relationship does not fall within the definition of spouse, de facto partner,
parent or child. These relationships are defined broadly in the bill and
extend the group of persons who may be subject to the judicial discretion
under the current law to include persons in a same-sex de facto relationship,
adoptive parents and children, and persons with whom a child is living as if
the child were a member of the person's family (even where there is no
biological relationship). Aboriginal cultural practices whereby a child lives
with a person with whom they have kinship ties as if they were a member of the
person's family are therefore accommodated because such persons are included
in the class of persons who may object to giving evidence. The right is
limited to the extent that a person shares kinship ties with the defendant but
falls outside the class of persons covered by clause 18.
(d) the relationship between the limitation and its purpose
The extent of the limitation is directly and rationally connected to the
desirability of ensuring that all relevant and reliable evidence that is of an
appropriate probative value is admissible. It would be undesirable to extend
the operation of clause 18 to all persons who share kinship ties with a
defendant, as this is potentially a very broad class of people and would
undermine the ability to ensure that important evidence can be obtained. The
definition of spouse, de facto partner, parent or child will include a broad
class of persons who share kinship ties with the defendant, and the provision
provides an appropriate balance between the preservation and maintenance of
close relationships and the need to maximise the ability to adduce relevant,
probative evidence.
(e) less restrictive means reasonably available to achieve its purpose
Less restrictive means of achieving this result are not available.
On balance, the limitation is reasonable and appropriate to its objective.
(f) other relevant factors
There are no other relevant factors.
(g) conclusion
The extent of the limitation is proportionate to the desirability of ensuring
that all relevant and reliable evidence that is of an appropriate probative
value should be admissible.
Section 20: property rights
Section 20 of the charter provides that a person must not be deprived of their
property except in accordance with law. A deprivation of property is in
accordance with law where the deprivation occurs under powers conferred by
legislation pursuant to a law, which is formulated precisely and not
arbitrarily. The following clauses of the bill engage the right because they
provide for a person to be required to produce documents or for the impounding
of documents. In each instance, the deprivation of property is in accordance
with law and there is no limitation on the right:
Clause 35 -- Effect of calling for production of documents
Clause 36 -- Person may be examined without subpoena or other process
Clause 131A -- Application of division to preliminary proceedings of courts
Clause 133 -- Court may inspect etc. documents
Clause 169 -- Failure or refusal to comply with requests
Clause 188 -- Impounding documents
Section 21: right to liberty and security of person
Section 21(3) of the charter provides that every person has the right to
liberty and security, that a person must not be subjected to arbitrary arrest
or detention and that a person must not be deprived of his or her liberty
except on grounds, and in accordance with procedures, established by law.
Clause 194 of the bill concerns witnesses who fail to attend proceedings.
Once certain matters are established, the court may issue a warrant to
apprehend the witness and bring the witness before the court. The provision
empowers a court to exercise a discretion to issue a warrant to apprehend the
witness, as one of a number of actions a court may take to compel a person to
attend proceedings. The court will assess the need to issue a warrant on a
case-by-case basis, and any resultant arrest will therefore not be arbitrary
but will occur when it is reasonable in all the circumstances for the purpose
of compelling a person to attend proceedings. The provision also provides that
the court may direct that a person be released immediately on bail. The right
is not limited as the deprivation of liberty will be on grounds and in
accordance with procedures established by law.
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Section 24: right to a fair hearing
Section 24 of the charter guarantees the right to a fair and public hearing.
Almost every provision of the bill engages the right.
The right is afforded to persons charged with a criminal offence and parties
to civil proceedings. However, what amounts to a 'fair' hearing takes account
of all relevant interests including those of the accused, the victim,
witnesses and society. For example, it may be in the interests of the accused
to know the name of a police informant. However, the right to a fair hearing
is not breached by the privilege in respect of public interest immunity in
clause 130, which enables that information to be withheld from the accused
where those interests are outweighed by the public interest in preserving
secrecy or confidentiality.
The balancing of rights required by the charter has essentially been
undertaken by both the Australian Law Reform Commission and the Victorian Law
Reform Commission on whose reports this bill is based. In addition, in most
cases the courts are given a broad discretion, which will ensure that the
provisions are applied to ensure a fair hearing in the individual
circumstances of the case. Further, clause 11 of the bill expressly preserves
the powers of a court with respect to abuse of process.
For these reasons, I have not included in this statement of compatibility a
detailed analysis of the application of the balancing exercise in respect of
each of the provisions of the bill.
It is, however, appropriate to discuss the power to exclude improperly or
illegally obtained evidence pursuant to clause 138 of the bill.
Improperly obtained evidence could include evidence obtained in breach of a
charter right. Such evidence is not automatically excluded. Rather clause 138
requires that a balancing exercise be undertaken to determine whether the
desirability of admitting the evidence outweighs the undesirability of
admitting evidence that has been obtained improperly or illegally. A
non-exhaustive list of factors to be taken into account is set out in clause
138(3). In some cases, this will result in the evidence being excluded. In
others, it may be admissible.
As already stated, the right to a fair hearing involves a balancing of all
relevant interests. The balancing approach undertaken pursuant to clause 138
is similar to that developed by the New Zealand courts in respect of the right
to a fair trial under the New Zealand Bill of Rights Act.
As the New Zealand courts have recognised, a prima facie exclusionary rule
does not give sufficient weight to the interests of the community or the
victim; namely, that persons who are guilty of serious offences should not go
unpunished: R v. Shaheed [2002] 2 NZLR 377.
I have concluded that the approach to the exclusion of evidence under clause
138 is compatible with the right to a fair hearing in section 24 of the
charter.
Conclusion
I consider that the bill is compatible with the human rights charter because,
even though it does limit human rights, the limitations are reasonable and
proportionate.
ROB HULLS, MP Attorney-GeneralMr HULLS (Attorney-General) -- I move: That this bill be now read a second time. This bill is the first of two bills to bring into effect the Uniform Evidence Act (UEA) in Victoria. A further bill repealing most of the Evidence Act 1958 the subject matter of which is dealt with in this bill, and integrating the new legislation into the statute book will be introduced early next year. The laws of evidence lie at the heart of the conduct of both criminal and civil court proceedings. Victoria has laboured under outdated and complex evidence laws, which are poorly organised, and difficult to locate and follow. In the justice statement in 2004, the government committed to improving the accessibility and consistency of legislation. A significant part of this commitment was to introduce the UEA in Victoria. This bill is an important step towards delivering on that promise. The UEA arose out of a comprehensive review of evidence laws by the Australian Law Reform Commission (ALRC) in the 1980s. In its 1987 report, the ALRC observed: ... the law of evidence is badly in need of reform in all areas. The present law is the product of unsystematic statutory and judicial developments. It is a highly complex body of law which is arcane even to most legal practitioners. It contains traps and pitfalls which are likely to leave the unrepresented litigant baffled, frustrated and defeated. The ALRC produced a model bill to provide a modernised, structured and reasoned approach to the laws of evidence. The commonwealth, New South Wales and Tasmanian parliaments have enacted legislation based substantially on the ALRC's model bill. As far back as 1996, the Scrutiny of Acts and Regulations Committee expressed the view that the UEA would be a significant improvement on the existing common law and statutory provisions in Victoria. More recently, the Australian, New South Wales and Victorian Law Reform Commissions completed a joint review of the operation of the UEA. The commissions found that the UEA was working well, but required some finetuning. The bill I am introducing contains a range of amendments to improve the UEA based largely on the commissions recommendations. To maintain uniformity, the Standing Committee of Attorneys-General has endorsed those amendments. Second reading
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While these amendments make some important improvements to the UEA, they do not alter the guiding principles underpinning the UEA, which govern the reforms contained in the Evidence Bill 2008. I will briefly discuss three of these principles. Firstly, the primary role of the laws of evidence is to facilitate the fact finding task of the courts by enabling parties to produce the most probative evidence available to them. Secondly, the different nature and objectives of civil and criminal trials require a more stringent approach to be taken in criminal trials to the admission of evidence against an accused person. The balance between the prosecution and defence has been kept in mind at all times. A less detailed and more flexible approach should be taken to the admissibility of evidence in civil proceedings. Generally, subject to considerations of fairness and costs, the rules should permit a party to tender all of the relevant evidence it has. Thirdly, the parties must be given, and feel they have had, a fair hearing. To enhance predictability, the rules should be clear to enable preparation for, and conduct of, trials and tend to minimise judicial discretion, particularly in the rules governing the admissibility of evidence. In reframing the law of evidence in Victoria, the bill imposes organisation on a miscellaneous collection of rules that have been developed on a case by case basis by the courts. It is structured so that the provisions follow the order in which issues ordinarily arise in trials. Whilst the bill codifies many aspects of the law of evidence, it is not intended to operate as an exhaustive code. In this regard, the bill expressly preserves the operation of other acts which make specific provision on evidentiary matters. It also preserves the principles and rules of common law and equity on evidence, except in so far as the contrary intention appears in the bill. However, because the bill is comprehensive, the scope for operation of these principles and rules will be extremely limited. Major changes to Victorian law implemented by this bill Unfavourable witnesses The common law currently requires that a witness be declared hostile before they can be cross-examined by the party who called them. The test for determining whether a witness is to be declared hostile requires the party to show that the witness is deliberately withholding material evidence. The bill allows for a party who called a witness to question that witness as though they were cross-examining them, with the leave of the court, where the witness has given evidence unfavourable to that party. This will, for example, make it easier for prosecutors to cross-examine uncooperative witnesses who may not meet the higher common law test. In combination with other sections, it will also allow them to lead evidence of the witness' original statement to police, and for those statements to be available to the jury as evidence of what happened. Hearsay The hearsay rule prevents the admission of evidence of a previous representation of a person for the purposes of proving the existence of a fact asserted by that person in the representation. There is a miscellany of exceptions to this rule at common law. The bill provides a more liberal and structured approach to hearsay evidence. It contains a set of carefully constructed exceptions which allow hearsay evidence to be admitted where it may be the best available account of what occurred. There are stricter requirements imposed in relation to criminal proceedings. The main departure from the common law is contained in clause 60 of the bill, which allows evidence admitted for a purpose other than as proof of the facts asserted to also be used as evidence of the facts asserted. For example, a prior inconsistent statement of a witness may be admitted as evidence relevant to the credibility of that witness. In that instance, the evidence may also be used as evidence of the facts asserted in the prior statement. The provision avoids the need to give complex, and at times nonsensical, directions to juries about the use to be made of the evidence. The exceptions are subject to other protections in the act, such as directions about the relative reliability of hearsay evidence. The hearsay rule is also made inapplicable in relation to evidence of admissions, which has its own set of exceptions. Admissions Admissions by a party against their interests are an exception to the hearsay rule. Both the common law and the UEA have rules restricting the admissibility of evidence of an admission where circumstances may have compromised the integrity of the evidence. At common law, the requirement is that the admission was voluntary, and that the person's will was not overborne at the time the admission was made.
Page 2634
Clause 84 of the bill excludes evidence of admission if it was influenced by violent, oppressive or inhumane conduct or threats of such conduct. Clause 85 applies in criminal proceedings in addition to clause 84 and provides that evidence of admissions made by a defendant to an investigating official are not admissible unless the circumstances in which the admissions were made make it unlikely that the truth of the admission was adversely affected. The privilege against self-incrimination Currently, in Victoria, if a witness can establish that there is a real risk that in answering a question their evidence would thus incriminate them in an offence, the court cannot require them to give the evidence. The UEA takes a different approach. The court can require such evidence to be given if the interests of justice require it. The witness is then issued with a certificate preventing the use of that evidence, or derived evidence, from being used against the witness in subsequent proceedings against them. This enables the court to receive relevant evidence, while protecting the witness from any adverse consequences of giving self-incriminating evidence. In response to the High Court decision in Cornwell v. The Queen [2007] HCA 12, the clause provides that where a certificate is given, it has effect even if the granting of the certificate is subsequently called into question. Warnings There are a multitude of warnings which a judge is required to give a jury in relation to evaluating evidence. Failure to give these warnings or giving inadequate warnings is a frequent ground of appeal in criminal cases. While common law warning requirements will remain applicable, the bill makes it clear that in most cases a party is to request a warning before it must be given. This places a certain onus on counsel to make a forensic decision to request a warning and reduces the likelihood that the failure to give a warning may constitute a valid ground of appeal. However, there is still an overriding obligation upon the judge to prevent a miscarriage of justice. As a result, if the judge was of the view that the requirements for a warning were met and counsel had failed to apply for the warning, the judge would be bound to ask counsel (in the absence of the jury) whether such a warning was requested. Overview of the Evidence Bill 2008 The bill is divided into the following five chapters -- chapter 1 deals with the application of the act; chapter 2 deals with adducing evidence; chapter 3 deals with admissibility of evidence; chapter 4 deals with matters of proof; and chapter 5 deals with miscellaneous issues and the dictionary. As mentioned, the bill is structured in the order in which the issues would normally arise in a typical trial. I will now summarise some additional key features of the bill. Chapter 2 deals with adducing evidence. It is divided into three parts, relating to witnesses, documents and other evidence. Clauses 12 and 13 of the bill provide that every person is presumed competent to give evidence unless the contrary is proved. There are some exceptions including heads of state, judges and jurors in certain circumstances. The competency provisions have been drafted with the intent that as many people as possible should be competent witnesses, with the particular difficulties faced by children and people with intellectual disabilities firmly in mind. The bill replicates the substance of recent amendments to the Evidence Act 1958 provisions dealing with children's evidence, but importantly extends those provisions to any witness who is incapable of understanding that in giving evidence he or she is under an obligation to give truthful evidence. The competency provisions of the bill represent a significant advance on the present requirement that an adult witness understand the nature and consequences of an oath. Clause 18 of the bill makes it clear that members of families of a defendant in a criminal proceeding are competent and compellable witnesses. However, such persons may object to giving evidence as a witness for the prosecution and, in certain circumstances, will not be required to give evidence. In this regard, members of a family include spouses, de facto partners (including same-sex partners), parents, natural and adoptive children and children living in the household of a de facto as though they are the children of the defendant. This provision seeks to strike a balance between maintaining and protecting families and facilitating the administration of justice.
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Clause 41 differs from the model uniform evidence legislation, which imposes a mandatory obligation to prohibit 'disallowable' questions from being put to any witness. Instead, this bill provides for a 'two-tiered' approach. It gives the court a discretion to disallow improper questions put to any witness and imposes a duty to disallow improper questions put to vulnerable witnesses. Children and people with a cognitive impairment or intellectual disability are vulnerable witnesses. The court may also consider other witnesses to be vulnerable depending upon their individual characteristics or the circumstances of the proceeding. One area in which the bill makes extensive changes is in relation to documentary evidence. Part 2.2 sets out the way in which documents can be proved. It abolishes the original document rule under common law, which requires that the contents of documents be proved by production of the original document. It permits parties to use originals, copies, transcripts, computer printouts, business extracts and official printed copies of public documents. Safeguards are provided in relation to the testing of documents and the means by which documents have been produced or kept. In addition, clause 147 facilitates the proof of documents produced in the course of business. The presumption is drafted sufficiently widely to cover reports based on a query of a database or a printout from a document imaging system. These significant reforms bring evidence law up to date with record-keeping technology. The abolition of the original document rule will remove the requirement for retention of hard copy documents and files by businesses and not-for-profit organisations for evidentiary purposes, and the requirement for the storage of hard copy documents and records. This will result in a substantial reduction in administrative burden for business and not-for-profit organisations and savings in the millions of dollars per year. In 2006 this government introduced the Reducing the Regulatory Burden initiative (RRBI) to reduce the administrative burden on business through the review of and changes to regulation. Funding has been approved through this initiative to implement the Evidence Bill. Ms Asher -- It is a bit of spin, no substance; the usual form for this government. Mr HULLS -- It is called the Reducing the Regulatory Burden initiative, or RRBI. The funding obtained from the RRBI will support some key activities including training programs for justice system agencies, dissemination of information such as changes to the original document rule to peak industry bodies and businesses, updating operating procedures, manuals and handbooks, and revising IT systems content. Chapter 3 of the bill contains comprehensive rules to control the admissibility of evidence. The primary evidentiary rule is that if evidence is relevant in a proceeding, it is admissible unless it is excluded under one of the exclusionary rules set out in the bill. Evidence that is not relevant is not admissible. The exclusionary rules in the bill build upon, but rationalise and reform, the existing law. They include general discretions to exclude evidence where its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party or misleading or a waste of time. As noted, the bill retains a rule excluding hearsay evidence. A significant change created by this rule is that an unintended implied assertion is not hearsay. For example, a child saying, when answering the phone, 'Hello, Daddy', is not hearsay if it is led to prove it was the child's father who was the other party to the telephone conversation. The exceptions to the rule are divided into provisions relating to firsthand hearsay -- that is, evidence given by a person who heard or saw the representation made by a person who had personal knowledge of the fact in question -- and more remote hearsay. Clause 193 includes a power for courts to develop rules, consistent with the provisions of the bill, relating to the pretrial discovery and exchange of documents, with the power to exclude evidence offered in violation of those rules. Evidence that falls into specified categories of more remote hearsay can be admitted on the basis of reliability and/or necessity. The categories include government and commercial records, reputation as to family relationships and public rights, certain telecommunications, commercial labels and tags and evidence in interlocutory proceedings. Clause 72 provides a specific exception to the hearsay rule in relation to evidence of a representation about the existence or content of traditional laws and customs of an Aboriginal or Torres Strait Islander group. This is specifically designed to overcome the difficulties that have arisen in relation to the assessment of Aboriginal oral history evidence.
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Clause 76 sets out the general rule that opinion evidence is not admissible to prove a fact asserted by the opinion. However, the opinion rule does not apply to evidence of an opinion based on what a person saw, heard or otherwise noticed about a matter or event that is an account of the person's perception. Clause 78A provides a specific exception to the opinion rule for evidence of an opinion expressed by a member of an Aboriginal or Torres Strait Islander group about the existence or otherwise of the traditional laws and customs of that group. Also, a person with specialised knowledge based on training, study or experience may give evidence of his or her opinion if it is wholly or substantially based on that specialist knowledge. I have previously referred to the operation of clauses 84 and 85 in relation to the admissibility of admissions against interest. Clause 86 makes inadmissible any document (excluding sound recording or transcripts) purporting to be a 'record of interview' by an investigating official unless signed or otherwise acknowledged by marking by the defendant. The clause will not affect current procedures including tape recording interviews or in relation to summary offences in other acts, which will continue to operate and to the extent of any inconsistency will override this provision. Clause 90 gives the court discretion to refuse to admit prosecution evidence of an admission if it would be unfair to the accused, having regard to the circumstances in which the admission was made. Part 3.6 provides for the admissibility of evidence relating to the conduct, reputation, character and tendency of parties and witnesses, which is relevant to a fact in issue. For example, evidence may be admitted to prove that a person has or had a tendency to act in a particular way if notice has been given and the evidence has significant probative value. Tendency and coincidence evidence is not admissible, however, in criminal proceedings unless the probative value of such evidence substantially outweighs any prejudicial effect that it may have on the defendant. Clause 102 provides that evidence that is relevant only to the credibility of a witness is not admissible, subject to a number of exceptions relating to cross-examination and expert witnesses. Protections are also provided for accused persons in criminal trials. Clause 110 permits in criminal proceedings a defendant to adduce evidence about his or her own good character. Where such evidence is adduced by a defendant, the prosecution is then permitted to adduce evidence that the defendant is not a person of good character. Part 3.10 deals with privileges. The client-lawyer privilege is continued broadly along traditional lines. It protects communications made in the context of a professional relationship between a lawyer and client or between a client's lawyers involving the provision of independent legal advice. In addition, protection is given to communications between a lawyer or a client and third parties which are made for the dominant purpose of obtaining legal advice or assistance related to pending or anticipated litigation. The bill differs from the model uniform evidence legislation in that it does not include the professional confidential relationships privilege. This privilege is subject to further consideration given the different provisions adopted by New South Wales and the commonwealth. When introducing its Evidence Amendment Bill 2008 recently, the commonwealth government indicated its intention to further consider this privilege as part of the development of its response to the Australian Law Reform Commission's report Privilege in Perspective. This provides a valuable opportunity for further work to promote uniformity in relation to this important privilege, prior to Victoria including such provisions within its evidence laws. Clause 127 protects clergy from being required to divulge religious confessions in circumstances where there is a ritual of confessing one's sins to a member of the clergy. In their review of the UEA, the commissions recommended that the privilege provisions also apply to preliminary proceedings of courts and non-curial settings. Clause 131A implements this recommendation in part. It provides that for the extension of the privileges to pretrial court proceedings, but not to non-curial settings. Chapter 4 deals with matters of proof. Part 4.3 facilitates the proof of evidence produced by machines, documents produced in the course of business, documents attested by a justice of the peace, a lawyer or a public notary, the execution of documents, seals, documents more than 20 years old, and matters of official record. It also establishes certain rebuttable presumptions about the postage and receipt of postal articles et cetera. Clause 161 provides for presumptions in relation to the sending and receipt of electronic communications. Clause 164 abolishes any rules requiring some classes of evidence to be corroborated.
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Clause 165 provides for judges to warn the jury about the unreliability of certain kinds of evidence, including hearsay evidence, evidence of admissions and evidence affected by the age or ill-health of the witness. Clause 165A limits the capacity of judges to warn a jury about the evidence of a child and largely replicates the current law in Victoria. Clause 165B regulates warnings which are given to juries in criminal proceedings where there has been a delay resulting in significant forensic disadvantage to the accused. It is consistent with, and will replace, the current provisions in the Crimes Act 1958. Part 4.6 provides for certain procedural matters, such as requests to produce documents or call witnesses, proof by affidavits, proof of foreign law and certificates of expert opinions et cetera. Chapter 5 of the bill deals with miscellaneous matters, including the rights of parties to waive the rules of evidence and to make agreements as to facts. The dictionary is also included in chapter 5 and provides the definitions of words and expressions in the bill. The definition of de facto partner rightly includes same-sex couples and couples who have registered their relationship under the Relationships Act 2008. It has been drafted to ensure maximum consistency with relevant definitions in existing state and territory legislation across Australia. Victoria has waited a long time for the reform of its evidence laws. The introduction of this bill is part of a much larger overhaul of Victoria's justice legislation set out in the justice statement 2004. It brings Victoria's evidence law into the current century and enhances the operation of our legal system through increased efficiency brought about, in part, through harmonisation with other state, territory and commonwealth legislation. I commend the bill to the house. Debate adjourned on motion of Mr CLARK (Box Hill). Debate adjourned until Thursday, 10 July.