Tanczos Nandor: Evidence Amendment Bill — Second Reading In Committee Third Reading 
Tanczos Nandor: Evidence Amendment Bill — Second Reading In Committee Third Reading 
[Volume:640;Page:10338] 
NANDOR TANCZOS (Green) 
: 
 The Evidence Amendment Bill has the support of the Green Party notwithstanding the rather unusual procedure of the bill’s passage in terms of both the speed with which it was introduced to the House and then dealt with by the Justice and Electoral Committee—it was unfortunately hasty—and the procedure today where we will be dealing with all of its remaining stages at this sitting. I have to say that the Green Party is normally very reluctant to support procedures of this kind because it is very easy for the House to make inadvertent mistakes through the hasty making of legislation. There are important constitutional reasons why we have normal procedures—in particular to ensure there is adequate opportunity for members of the public for professionals involved for other people involved and for experts to come and make comment on the legislation we are seeking to enact. It is unfortunate that that has not been the situation here. 
Nevertheless we have accepted the Government’s argument that there is urgency around this matter—that the amendments made by the select committee to what is now the Evidence Act left some confusion around a matter and left some concerns—and that it needs to be rectified promptly in order that cases currently before the courts are not adversely affected. So the Greens are supporting this unusual procedure and we are supporting the bill. 
The first question we had to determine in coming to our position was the question of whether the bill was necessary at all and I make reference to the comments of Mr Chris Finlayson around this matter. It was something the select committee discussed and it is an important point because the question was whether the amendments made by the select committee actually did away with the common law or preserved it. That is the concern and the reason why it is important to pass the legislation is to make absolutely clear that the common law is retained. 
There is a reasonable argument to be made that the common law provisions should still remain. As I say Mr Finlayson has canvassed those arguments but I think it is worth referring to some of those specifics. Let us take a look at the Evidence Act—and excuse me while I just find my way through this— 
Simon Power 
: What’s the member got down there? 
NANDOR TANCZOS 
: It is a laptop. I am sure Mr Power has heard of them; I know some members of this House are unfamiliar with the term. The new Public Access to Legislation website is great stuff. 
Section 12 states: “Evidential matters not provided for—If there is no provision in this Act or any other enactment regulating the admission of any particular evidence or the relevant provisions deal with that question only in part decisions about the admission of that evidence—(a) must be made having regard to the purpose and principles set out in sections 6 7 and 8; and (b) to the extent that the common law is consistent with the promotion of that purpose and those principles and is relevant to the decisions to be taken must be made having regard to the common law.” The question then arises whether that provision gives adequate direction to the court to include those common law considerations into the decision about whether the particular evidence will be admitted. Of course if we look at those purposes—which I will return to—we see that it does not seem that they would be inconsistent with the bill’s purposes. 
But the question does of course remain with some of the other sections. Section 7 states: “Fundamental principle that relevant evidence admissible—(1) All relevant evidence is admissible in a proceeding except evidence that is … (b) excluded under this Act or any other Act.” The concern is that that actually overrides that common law provision. I think it is fair to say that we came to the view that the bill is required not because we are certain that the amendments did away with the common law but because we are uncertain. It leaves a degree of uncertainty that is important not to leave in place because of the cases I have previously mentioned. 
The question then arises—given that the bill is necessary—as to whether this is the best way to solve the problem. Again Mr Finlayson has referred to these arguments. There is a contradiction in including in an Evidence Act an amendment that is expressly designed for the purposes of clarifying the laws of evidence collating them in one place and making them accessible to the general public. Those purposes are countered then by having a reference to the common law a reference that by its nature is unclear. So it is unfortunate that this is the way the bill has had to go and that is one of the issues that I and other members raised in the first reading. Yet given the requirements of haste that are so important with regard to this bill the argument was made by advisers that the attempt to make explicit the common law rules was problematic. 
This was partly because of the time frame but partly because there are undecided questions still to be determined in the higher courts around these issues of co-conspiracy. My understanding—and I am not a lawyer and I am not familiar with the cases— 
Christopher Finlayson 
: You should be. 
NANDOR TANCZOS 
: I thank the member; that is very kind—well I think it is very kind. 
My understanding is that the case in particular that was being referred to is around the question of what actually qualifies as a co-conspiracy. Although that is different from the question of what evidence is then allowed the point about where those rules are going to apply is clearly germane to the whole issue. So in accepting the argument that some undecided issues are still to be resolved we accept that this is the way forward. 
Just as a point on the side I was quite interested about why we talk about the statements of co-conspirators or persons involved in joint criminal enterprises rather than of those alleged to be involved in those things. It seemed to me to be contrary to that basic principle of being innocent until proved guilty. But the point was made that it is put in that way because for these rules of evidence to apply the co-conspiracy or joint criminal enterprise has to be already proved. So we are not talking about people alleged to have been involved in such enterprises; we are talking about co-conspirators or persons involved in joint criminal activities. It not the best thing that these things remain undefined because as I said one of the main purposes of the bill was to codify and to clarify the legislation and to make it accessible to the general public. Again if we go back to section 6 of the Evidence Act where it talks about the purpose we see that “enhancing access to the law of evidence” was one of the quite explicit purposes outlined there. 
So it is unfortunate that this has had to be this way. The Justice and Electoral Committee made an amendment in relation to the issue of where a defendant accepts the truth of a statement of a co-defendant. The suggestion which I think came from Mr Fairbrother of a way to restate that was a very good one and it avoided some of the problems that were raised in the first reading. I also note that there is a review process to ensure that these issues can be dealt with again on a later occasion and so the actual codification which is what we actually desire can be done more clearly at that time.