Mapp Wayne: Evidence Bill — First Reading 
Mapp Wayne: Evidence Bill — First Reading 
[Volume:625;Page:20423] 
Dr WAYNE MAPP (National—North Shore) 
: 
 As my colleague Dr Richard Worth an eminent lawyer in Auckland—and I could say a good deal more eminent than some of the other lawyers who have spoken in the proceedings tonight—has said National is supporting the first reading of the Evidence Bill. 
I am concerned to hear that the party that consistently supports the Labour Government United Future has such a poor understanding of our civil liberties. One of the reasons why we have these protections of which Murray Smith seems to be unaware is precisely that the State is powerful and that people acting for it sometimes abuse their authority. Perhaps it is done with the best of intentions but they nevertheless do so. Therefore the law provides citizens with protection. Mr Smith would just throw those protections away with indifference unaware of the lessons of recent and past history. So when he said: “Let us bring the justice system into the 21st century.” it was code for: “Let us give more power to the State.” because that is essentially his plea. I say that we should be very careful of that approach because our democracy is built on the basis that the rights of citizens are protected. That is literally the foundation of Western democratic societies and Mr Smith would apparently cast that foundation aside somewhat heedlessly. 
One of the other things that comes to mind is the rather unusual reference by the Minister of Justice to the careful deliberations of the Law Commission. I guess he was referring to himself in that as well because this bill has had an extraordinarily long gestation. In 1989 the Law Commission started work on it. I recall reading its numerous briefing papers and preliminary reports as they came out. The final report was in 1999—10 years later. It is one of those situations that we have become used to with the Minister—he announced things some years ago and then they were announced again he issued press releases saying that he was getting around to it he put it in the Queen’s speech and all of that sort of thing. That is the Minister’s habit. Finally just a couple of months out from the election he introduces the bill. I guess that he will have the dubious pleasure of being in retirement during its progress because a new Minister will be able to consider the deliberations and results of the select committee. He will not be there to do so. 
I turn to a couple of particular points within the legislation: hearsay evidence and privilege. One of the things about giving evidence in court is that it is intended to establish the facts from each party’s perspective. By definition facts are things that people know which is why we do not rely on hearsay evidence. In a case a person testifying cannot give a statement of fact. They can give a statement of opinion but they do not know what actually happened. 
One situation brought to mind is the Prime Minister’s statements in the House today. Apparently she cannot say what happened in relation to what was said 5 years ago. At best she can only say what she believes happened. So there is the odd situation of her putting her reputation on the line and the public being asked to judge it not on the basis of what she knows she said—she cannot remember it and she has admitted that—but rather on what she thinks she might have said. That is a pretty unreliable situation. Interestingly enough in that situation—and we are talking about evidence—the evidence actually exists in the form of tape-recordings and contemporaneous notes. I say that on the basis of evidence she should produce the contemporaneous information so that this nation knows the truth. It is something that apparently United Future wants to know. It is a fair claim. 
We deserve to know the truth particularly from the most important constitutional position in our country which is that of the Prime Minister. Surely as a nation we should be able to know what is true and what is not and that can be done. So that is a pretty important issue. When we are talking about evidence legislation we should be able to rely on the truth of what is said and the Prime Minister needs to understand that. 
That matter brings me to the issue of privilege. Legislation protects many of the traditional privileges. One of the privileges of course is parliamentary privilege. Members can say pretty much what they like and it will not be challenged. Today the Prime Minister said—with no evidence—that the National Party paid for the Doone’s lawyer. Surely that was an extraordinary abuse of privilege. So when the issue of evidence is being looked at we expect senior members of the Government to follow those fundamental principles. 
I turn to some other issues in the bill. I was intrigued to hear the Green Party talk about the burka. That was an issue on which I had something to say at the time. In giving evidence it is fundamental that people be able to assess the character of witnesses. Even the judge admitted that. Yet I understood from the Green Party that its belief is on the basis of cultural sensitivity we should allow people to give evidence and in a sense for that evidence not to be tested. 
If one were to take the view that the whole purpose of legal proceedings is to seek the truth—and a fair argument can be made about that—then surely the demeanour of the witness is one of the things that both the judge and jury ought to be able to assess. I think that the judge made the correct decision by ruling that the person could not wear the burka. I personally think that the witness should not have been behind a screen. 
I conclude on the point that the purpose of this legislation essentially is to codify the law and to bring into the legislation a series of propositions and positions that have been held in case law and now need to be put into the legislation. That was the purpose and the intent of the Law Commission’s report. It disturbs me that we take so long to implement important Law Commission reports of this nature. This was an important report from the Law Commission. The commission did a huge amount of work on it over a long number of years. I read many of its reports during that time. Yet we do not have a procedure in this Parliament that would properly advance the commission’s important work. 
As someone has pointed out the current Evidence Act is from 1908. For 20 years now that Act has been the subject of a review. For the health of the law of this land we need to have a system in this Parliament that would enable Law Commission reports on issues that are certainly not fundamentally party political or in dispute to be passed into law for the health and effectiveness of the law. 
Stephen Franks 
: Where is your sense of mystery? This one shouldn’t be passed until 2008. 
Dr WAYNE MAPP 
: That is an intriguing interjection but I think that it would not be good for the development of the law. This is something that the House needs to pay attention to. We need to find a mechanism as exists in both Britain and Australia whereby non-contentious but important legislation can be passed so that we keep the legal tool kit in good repair.