Finlayson Christopher: Evidence Amendment Bill — Second Reading In Committee Third Reading 
Finlayson Christopher: Evidence Amendment Bill — Second Reading In Committee Third Reading 
[Volume:640;Page:10346] 
CHRISTOPHER FINLAYSON (National) 
: 
 It is a somewhat surreal experience to go through a second reading stage Committee stage and third reading stage as quickly as we have done this afternoon. There seems to be little point in going back and making reference to my second reading speech when it was given only about an hour ago. So I will not do that and I will not upset the chief whip by going through yet another turgid analysis of the newsection 12A to be inserted in the Evidence Act 2006 by clause 5 of the Evidence Amendment Bill or addressing why we come to have the amendment to section 27 in clause 6 of the bill and the consequential amendments in Part 2. 
The situation could be summarised in this way. After the new Act came into force there was some doubt about whether in relation to the circumstances outlined in section 27 the common law had been preserved. As both Mr Tanczos and I explained in our second reading speeches there is an argument that it has been; however to put the matter beyond doubt legislation was considered to be the desirable option. That is why we moved very quickly to have the Evidence Amendment Bill introduced and referred to the Justice and Electoral Committee and then this afternoon we have dealt with its remaining stages. 
One point I want to close on though is the conclusion to the report of the Justice and Electoral Committee. The committee emphasised that the Evidence Act should be regarded as a codification of the law of evidence in New Zealand that the amendment should not be seen as resiling from the purpose of the Act and moreover that section 202 of the Act sets out a very clear mechanism for mandatory review. Mr Mark raised a number of very good questions. If I can summarise the honourable member he said that we have a section that deals with periodic review and that there are some arguments as to why the legislation should have been introduced in the first place so he asked whether we would have other amendments. I think that fairly summarises the points he made. 
In dealing with the second of those points first—why we have legislation dealing with the law of evidence—I say we had a major exercise throughout 2005 and 2006 because evidence law as it was was unsatisfactory. It was contained in legislation like the Evidence Act 1908 and the Evidence Amendment Act (No 2) 1980 which had introduced some major changes some of which never actually came into force because the Governor-General in Council did not sign the necessary documents. We also had an array of common law judge-made law on evidence. 
The Law Commission wanted to bring it all together and that is what has been done through the Evidence Act 2006. That is why Mr Tanczos and I for example expressed concerns about references in legislation to the common law bringing back as I said in the Committee stage somewhat uncertain references to the law because the common law is never static but is always developing. But as far as possible and consistent with the purpose of the legislation every endeavour was made to bring all relevant rules relating to the law of evidence into one statute. A primary purpose of that was as set out in section 6(f) of the Act to enhance access to the law of evidence. The law of evidence is one of those things that affects anyone who is caught up in the civil or criminal justice system. Sometimes people represent themselves—they may not have access to lawyers—so it is to the advantage of everyone that the law of evidence is clear and accessible. I hope that answers the first question. 
The next question relates to periodic review. Section 202 which was inserted by the committee is a very important section. It is considered given the importance of thend there will be a period while the Evidence Act is in its infancy when there will be a lot of cases on it—that after a certain period there needs to be systematic review of the Act. This is a mechanism that has been inserted to provide for mandatory post-legislative review of the Act. At a particular time hopefully no later than 1 December 2011 the Minister of Justice will ask the Law Commission to take a fresh look at the Act as it has developed since it came into force taking into account all relevant cases and then to decide what changes if any need to be made. 
It is the sincere hope of the select committee and of this Parliament that that mechanism will work so that there can be a principled and systematic review of the law of evidence. I certainly hope that is the case. I know that when the Law Commission was looking at the law of evidence I was one of those who suggested that rather than our running back to Parliament every time an amendment needed to be made perhaps the law of evidence could be enacted as a code and a specialist committee could make changes to it. But because of the nature of the law of evidence which deals with major substantive matters that can affect the liberty of the individual it was considered that it was a subject that was properly the preserve of Parliament and not of a specialist committee and that is why it was not enacted as a code. 
The final point I would make is that I predict this amendment is probably not a one-off experience. Given the huge nature of the exercise of reforming the law of evidence comprehensively for the first time in a century and given the changes that have been made it could well be while the legislation is in its infancy that some other questions will arise. We may have to deal with other questions because when we try to reduce everything into a code and express ourselves clearly in Englishsh covering as many situations as we can there may well be other circumstances that require clarification. I am afraid that is the name of the game. When I was speaking in the first reading I said that after the High Court Rules were introduced in 1985 the Rules Committee needed immediately to have a number of meetings to make some urgent changes to them because certain things had not been looked at. I am afraid that will possibly happen here simply because of the nature of the exercise that we have undertaken. 
We cannot cover every single contingency but I think it is fair to say in answer to Mr Mark’s questions that we have certainly tried to do so. I hope I do not sound defeatist but it could well be that there will be a need to legislate in other areas. Given the mechanism for review that we have in section 202 of the Act where a review is not to take place until 5 years hence there may be a need for this Parliament to look at other matters. But having said that I certainly hope that is not the case. We have done our best in the time available to cover the contingencies that the Minister has outlined so as to prevent either satellite litigation on whether the common law exceptions have been maintained or our running the risk that a court finds they have not been maintained thereby then imperilling a large number of highly complex and very costly cases. At least this legislation makes it clear beyond a shadow of a doubt that the common law exceptions in this particular area have been maintained. 
For that reason National supports the third reading of the legislation. As I say I hope we are not going to deal with other amendment bills in this area of the law. But who knows? We may do so.