Finlayson Christopher: Evidence Bill — In Committee 
Finlayson Christopher: Evidence Bill — In Committee 
[Volume:635;Page:6638] 
CHRISTOPHER FINLAYSON (National) 
: 
 I will take a brief call on Part 1 “Preliminary provisions”. There are about five points that I wish to make. The first deals with the definition of “document”. I am pleased that the Minister has proposed a Supplementary Order Paper to provide for a more general definition of “document” because I always thought that the definition of “document” in clause 2 as drafted had the potential to be construed in a narrow manner. The definition contained in the Supplementary Order Paper is not quite the same as the definition of “document” in the equivalent High Court Rule but I none the less think it is an improvement and the National Party will support the Supplementary Order Paper in that regard. It is extremely important in this kind of area that there be a very clear and general definition of the term “document”. 
The Justice and Electoral Committee has made a couple of other changes to the definitional clause. I refer simply in passing to the definition of the word “court” the definitions of “investigative questioning” and “official questioning” and the definition of “proceeding”—which again is not the same as that contained in the High Court Rules. But those definitions are of relatively minor importance in the overall scheme of things. 
Clause 5 deals with the application of this legislation and subclause (2) which was itself the subject of some minor amendments makes the very important point that if there is any inconsistency between the legislation and any provisions of rules of court—being rules made by the High Court Rules Committee for the courts of New Zealand—then the provisions of this legislation are to prevail. Of course there can be a clash because the rules committee which is mandated under section 51C of the Judicature Act to make rules governing the practice and procedure of the courts of New Zealand sometimes makes not only rules of evidence but also rules of substantive law. Sometimes there will be an inconsistency and this clause makes it clear that the legislation is to prevail. 
It is important for me to refer to clause 6 which sets out the purpose of the Act because the select committee made two changes both of which are important. The first is the insertion of paragraph (ab). Clause 6 now states: “The purpose of the Act is to help secure the just determination of proceedings by— … (ab) providing rules of evidence that recognise the importance of the rights affirmed by the New Zealand Bill of Rights Act 1990; …”. That theme will be developed in the Committee stage when for example we look at clauses like clause 26 “Improperly obtained evidence”. 
The second provision we added to clause 6 was paragraph (e) which provides that another purpose of the legislation is to enhance access to the law of evidence. Some people said that there was no need for a bill; that the work of the Law Commission was in vain because the judges knew what the rules were and by and large the lawyers did; and that it could be left to the common law. But one of the reasons why I am so pleased this legislation is shortly to be enacted is that it will enhance access to the law of evidence. 
I recall years ago going to a course in Boulder Colorado. What was immediately apparent from that course was that the American lawyers always had with them for the purposes of the exercise the Federal Rules of Evidence. They knew those rules of evidence much better than I think New Zealand lawyers know ours. I think that New Zealand lawyers and sometimes judges do not know the rules of evidence well enough and one of the reasons is that the laws of evidence are not easily accessible. So it is extremely important that this legislation be passed in order to make the law of evidence accessible. 
I will make two points about clauses 10 and 12. Clause 10 deals with the interpretation of the Act and it follows on from the point I have just made. This really is a major change to the law of evidence. As I said in my second reading speech this bill is the first comprehensive substantive reform of the law of evidence for 100 years. So it is important after all the work that has been done by the Law Commission the ministry officials and the select committee that the legislation itself will be the starting point for all inquiries. The existing common law will continue to remain but as clause 10(1)(c) states only to the extent that the common law is consistent with the provisions of this legislation and consistent also—importantly—with the promotion of its purpose and principles. 
The second point that needs to be made concerns clause 12. I am sure that sometimes as always happens lawyers will find that this legislation does not cover everything notwithstanding the fine work that has been done on it. Clause 12 deals with what is to happen where evidential matters are not provided for. Again if one faces that situation the courts will be able to make a decision on a particular question having regard to the purpose and the principles of the legislation set out in clauses 6 to 8 and to the extent that the common law is consistent with the promotion of that purpose and those principles and is relevant to decisions to be taken one must have regard to the common law. 
So it is important that all lawyers and judges realise that when this legislation comes into force it will be a new regime; it is not a question of this legislation tacking on to the common law a couple of new principles. The starting point for inquiry on any evidential matter will be the legislation and the common law can continue to apply in the circumstances I have outlined. 
The final point I will make about the Evidence Bill concerns clause 11. A couple of minor changes that have been made to it simply emphasise the point that the inherent jurisdiction of the court and the implied powers of inferior courts are not affected by the passage of this legislation except to the extent that the legislation provides. Sometimes there will be situations where for example the High Court in reliance on its inherent jurisdiction will want to make a ruling in relation to a particular matter and clause 11 provides that the powers of the court are not so affected. With those preliminary comments in mind on Part 1 I can rest my case and await to address the Committee on Part 2.