Finlayson Christopher: Evidence Bill — Third Reading 
Finlayson Christopher: Evidence Bill — Third Reading 
[Volume:635;Page:6803] 
CHRISTOPHER FINLAYSON (National) 
: 
 I join with the Minister the Hon Mark Burton in saying that the reform is timely and National certainly supports the third reading of the Evidence Bill. I can speak on behalf of Dr Worth in saying that he and I have really enjoyed our participation in the debate. 
This is the first comprehensive reform of the law of evidence for almost a century and it is well overdue. The Minister has paid tribute to a number of people and I consider it right and appropriate that I should mention certain people as well because the contribution of people in this huge project needs to be acknowledged. I too acknowledge the work of the Law Commission. I particularly mention Judge Margaret Lee a District Court judge who for a number of years was a law commissioner. She essentially oversaw the evidence project for many years. I certainly recall that from 1996 to 1997 I was one of those whom she approached to give advice to the Law Commission on a number of issues. The question for me was how to keep the code up to date after it had been implemented. I recall that in those days I was very much in favour of the equivalent of the Rules Committee looking after the matter because I did not think politicians should be looking too closely at the law of evidence. I must say that after 12 months in this place my views have changed. I think that these areas are too important to be left to lay people and that politicians do need to be involved in the reform of the law of evidence. 
I particularly pay tribute to the Minister’s officials especially Chelly Walton and Boris van Beusekom for their outstanding work over a number of years after the ministry took responsibility for the drafting of the bill and especially during the time that the bill was before the Justice and Electoral Committee. I acknowledge the numbers of people who made submissions on the bill. There were not a huge number of submissions but their quality was very good indeed. I particularly refer to the New Zealand Law Society. Sometimes in this place we think lawyers are interested only in money—well they are really I suppose—but the reality of the matter is that the society’s legislation committee plays a major public service role as a law reformer in terms of contributing to law reform. The famous American jurist Learned Hand once told law students at Yale that it is the Bar that makes the statutes. But more than that we all depend on lawyers to help shape the law both through statutes and through judicial decisions and it is fair to say that the New Zealand Law Society has made a huge contribution to this bill. 
I pay tribute to Hugo Hoffmann and Bill Moore of the Parliamentary Counsel Office. They assumed responsibility for redrafting clauses with good humour and diligence. I can recall on at least two occasions during the select committee consideration when light bulbs went off in the heads of a few of the members of the select committee—for example on clause 26. I think I was the one who said it would be a good idea if we incorporated the Judges’ Rules into the statute. Hugo and Bill gave wry smiles and went away and drafted a number of options for the committee. Then we decided it would be a very bad idea after all. A similar thing happened in respect of the work on clause 194A and post-legislative review. 
The select committee staff were extremely helpful especially Sean Rainey and CathAnyan. The special adviser Robert Fisher QC made a huge contribution to select committee discussions. I want to acknowledge the work of Russell Fairbrother who as the Minister said chaired the subcommittee; of Dr Worth; and of Nandor Tanczos. It is fair to say that we enjoyed the work and we are pleased with the work product. 
As I said this is the first comprehensive reform in 100 years. The bill is not at all like the Evidence Amendment Act (No 2) of 1980. That Act dealt only with three or four key topics. This bill is a fresh start in the law of evidence in almost every respect. Some said that there was no need for a comprehensive code of the law of evidence. I happen to think that those people were totally wrong. Some said judges and lawyers know the law. Well with respect they do not. Over the years lawyers in particular have become very sloppy when dealing with evidential matters and one of the purposes of the Act is to raise standards. 
As the Minister said the purpose is to help secure the just determination of proceedings by achieving the purposes set out in clause 6 of the bill. I particularly want to refer to paragraph (e) that we inserted in the bill. That clause has the purpose of enhancing access to the law of evidence. Until now the law of evidence has been scattered through texts and cases that are not readily available. As a result of the enactment of this legislation for the first time we will see the law of evidence readily accessible so there will be no excuses for people not knowing the basic rules. 
I particularly want to refer to the interpretation sections of the bill—clauses 10 and 12—because they herald the major change in the law of evidence. As clause 10(1)(c) states this Act is to be “interpreted having regard to the common law but only to the extent that the common law is consistent with” the provisions of the Act the promotion of its purpose and the application of the rule in clause 12 which deals with evidential matters not provided for. 
 When I sat down earlier today to think about the particular matters that I could highlight in the third reading I found myself highlighting quite a number of areas so what follows is a very brief summary of only some of the key provisions that will be contained in the new legislation. The rules relating to hearsay are brand new and I particularly refer to clause 18 which proceeds on the basis that hearsay is generally admissible in the circumstances set out in that clause. In Part 2 Subpart 2 has some major changes that deal with expert evidence. I particularly refer the House to clause 22A and the obligations that are incumbent on experts and the way in which they conduct themselves in civil proceedings. This is one area that the Law Commission may want to have a good look at in 5 years’ time if there continues to be problems with experts. 
Subpart 3 deals with a number of major topics including improperly and unfairly obtained evidence. I particularly refer to clause 26(6) which deals with the Judges’ Rules because before this legislation comes into force the Chief Justice has promised to set out some guidelines on that subject. Subpart 8 raises some major questions on the law of privilege and confidentiality. There are a number of key issues that lawyers will have to address there such as the privilege for communications with legal advisers in clause 50 the privilege against self-incrimination in clause 56 and the fact that it is not available for corporates and the replacement of the privilege for Anton Piller orders in clause 59. These are a number of areas that lawyers will have to upskill themselves on and that after 2011 the Law Commission may wish to review. 
Part 3 deals with the trial process. That too contains a number of areas that the Law Commission may want to come back and look at in a couple of years’ time. I particularly refer to clause 79 and I say one last time in relation to clause 88 that it is intended by this clause to restate the current law; the challenge has been on the part of the Law Society the officials and the parliamentarians to find the right form of words. 
In the course of this speech I have said that the Law Commission may want to look at this or that in 2011 and that is because of the all-important clause 194A which introduces a form of post-legislative review. After 5 years’ operation this legislation will go to the Law Commission for a very comprehensive review as to how it is working and I think that that clause provides a very good model as to the way we should proceed with legislation in the future. 
As the Minister said the evidence reform project has been a task that has taken many years indeed. It has taken probably far too long but not as long as the limitation project which the Law Commission has been working on for almost 20 years. But the question of the reform of limitation law is an issue for perhaps 2007; that is in the future. In 2006 we can at least be well satisfied that the Evidence Bill is soon to become law. 
My final point concerns clause 2. I hope that the legislation comes into force very soon but not too soon because regulations have to be drafted Judges’ Rules need to be reworked and lawyers and judges need to be upskilled. But once all this has been done may the new era begin. So National supports the bill thanks all those who have been involved and very much looks forward to the future.