Review of the Evidence Act 1958 (Vic) and
Review of the Role and Appointment of Public Notaries

Introduction

The Scrutiny of Acts and Regulations Committee established in the 52nd Parliament was given a Reference to review the Evidence Act 1958 (Vic) on 4 July 1995 by the Lieutenant Governor as the Governor's Deputy. The responsible Minister was the Attorney-General, the Honourable Jan Wade MLA. The Committee was requested to present a final report to the Parliament by the first sitting day of the 1996 Autumn Parliamentary Session.

A State election was held on 30 March 1996. The Committee was dissolved and the Reference lapsed. The Government was returned. A new Committee was elected. The Reference was again referred to the Committee by the Governor in Council on 20 June 1996.

Terms of Reference

The terms of reference are as follows:-

"Under the powers found in section 4F(1)(a)(ii) and section 4F(3) of the Parliamentary Committees Act 1968 the Lieutenant Governor as the Governor's Deputy with the advice of the Executive Council refers the following matters to the Scrutiny of Acts and Committee:-

(a) The Committee is requested to inquire into and consider and report to the Parliament on -

whether the Evidence Act 1995 (Cth), as a model for uniform legislation, is appropriate for enactment in Victoria;

whether there are any matters particular to Victoria which should be considered separately;

whether the Evidence Act 1958 (Vic) and the Evidence Act 1995 (Cth) adequately address matters of proof and admissibility in relation to reproduced documents (including documents reproduced by microfilming, optical disk based imaging and storage systems, or other electronic or imaging storage techniques); and

whether any changes should be made in respect of the witnessing of documents including the witnessing of documents by public notaries and the appointment procedures for public notaries.

(b) The Committee is requested to make a final report to Parliament by the first sitting day of the 1996 Spring Parliamentary session."

Procedure - The Former Evidence subcommittee

The former Committee from the 52nd Parliament established an Evidence subcommittee. The members were Mr Victor Perton MP, Chairman, Mr Murray Thompson MP, Dr Ken Coghill MP and the Honourable Monica Gould MLC. The Committee advertised the terms of reference in "The Age" and the "Herald Sun" on 26 August 1995. The advertisement sought written submissions from interested parties.

The New Evidence subcommittee

A new Evidence subcommittee was formed after the commencement of the 53rd Parliament. The members are the Honourable Peter Katsambanis MLC, Chairman, Mr Robert Cameron MP, the Honourable Maree Luckins MLC, the Honourable Don Nardella MLC and Mr Murray Thompson MP.

Overview

In the Committee's view, what was primarily required by these terms of reference was a consideration of the suitability for adoption in Victoria of the Evidence Act 1995 (Cth), rather than independent consideration of the Evidence Act 1958 (Vic). Accordingly, the Committee's attention was largely directed towards the first question in the terms of reference. The bulk of this report consists of a detailed analysis of the provisions of the Evidence Act 1995 (Cth). In the Committee's view the answer to the first question is that the Evidence Act 1995 (Cth), as a model for uniform legislation, is appropriate for enactment in Victoria.

The Committee has also discovered, however, that there are some matters peculiar to Victoria which need to be considered separately. In respect of almost all of these matters, what is required is the retention of existing evidentiary provisions contained in either the Evidence Act 1958 (Vic) or the Crimes Act 1958 (Vic). Where such retention is necessary, it is indicated during the discussion of the relevant provisions of the Evidence Act 1995 (Cth).

The Committee has also considered the third question contained in the terms of reference. In the Committee's view, the answer to this question is that the Evidence Act 1995 (Cth) addresses matters of proof and admissibility in relation to reproduced documents in a more satisfactory fashion than does the Evidence Act 1958 (Vic). Detailed discussion of the advantages of the Evidence Act 1995 (Cth) is dealt with as part of the general analysis of the relevant provisions of that Act.

Finally, the Committee inquired separately into the fourth question contained in the terms of reference. In summary, the Committee recommends that public notaries be appointed by the Supreme Court of Victoria. The Committee's views as to the changes which should be made in respect of the witnessing of documents are set out in further detail in Chapters 10 to 13.

The submissions - Review of the Evidence Act 1958 (Vic)

In carrying out its inquiry the Committee sought submissions from a wide range of individuals and organisations. The Committee received thirty seven written submissions from the following in relation to the adoption of the Evidence Act 1995 (Cth):-

1. Mr Damian Murphy, Barrister, dated 1 August 1995;
2. Mr Richard Wright, Chairman, Residential Tenancies Tribunal, dated 7 August 1995;
3. Mr Kenneth Arenson, Lecturer, Deakin University, dated 8 August 1995;
4. Mr Lance Pilgrim, President, Guardianship and Administration Board, dated 11 August 1995;
5. Mr James Galatas, Director of Legal Aid, Legal Aid Commission of Victoria, dated 15 August 1995;
6. Ms Suzanne McNicol, Associate Professor, Monash University, dated 16 August 1995;
7. The Honourable Justice T.H. Smith, Supreme Court of Victoria, dated 18 August 1995;
8. Mr Ronald Beazley, Victorian Government Solicitor, dated 4 September 1995;
9. Ms S. Zeitz, President, Employee Relations Commission of Victoria, dated 7 September 1995;
10. Judge Warren Fagan, President of the Administrative Appeals Tribunal of Victoria, dated 8 September 1995;
11. Ms Carol Bartlett, Law Institute of Victoria, dated 12 September 1995;
12. Mr B.W. Perry, The Victorian Ombudsman, dated 19 September 1995;
13. Ms Cate McKenzie, President of the Equal Opportunity Board, c/o Judge Warren Fagan, dated 21 September 1995;
14. Mr Nicholas Papas, Chief Magistrate of the Magistrates' Court, dated 26 September 1995;
15. Mr G.I. Bellamy, Commonwealth Attorney-General's Department, dated 11 October 1995;
16. Mr Andrew Palmer, University of Melbourne Law School, dated 2 November 1995;
17. The Honourable Xavier Connor AO, QC, dated 9 November 1995;
18. Mr John Middleton QC, Chairman, the Victorian Bar, dated 24 November 1995;
19. Mr Chris Humphreys, Department of Justice, dated 30 November 1995;
20. Mr Chris Humphreys, Department of Justice, dated 1 December 1995;
21. Mr Malcolm Walter, Office of Fair Trading and Business Affairs, dated 4 December 1995;
22. Mr Ross Gordon, Director, Criminal Law Division, Victoria Legal Aid, dated 19 December 1995;
23. Ms Jacky Kefford, Member, Residential Tenancies and Small Claims Tribunal, dated 22 December 1995;
24. The Honourable Jan Wade MLA, Attorney-General, dated 22 December 1995;
25. Judges Mullaly and Kelly sent by His Honour Judge G.R.D. Waldron AO, Chief Judge of the County Court, dated 10 January 1996;
26. The Honourable Justice M.E.J. Black, Chief Justice of the Federal Court of Australia, dated 18 January 1996;
27. Mr Ian Freckleton, Barrister, dated 2 February 1996;
28. Mr Michael Schoenberg and Mr Stephen Parmenter, Arthur Robinson & Hedderwicks, dated 2 February 1996;
29. Dr E. Robyn Mason, The Australian Medical Association, dated 5 February 1996;
30. Mr G.I. Bellamy, The Commonwealth Attorney-General's Department, dated 7 February 1996;
31. Mr Robert G. Drummond, The Insurance Council of Australia, dated 15 February 1996;
32. Ms Heather Holt, State Revenue Office, dated 23 February 1996;
33. Mr Phillip Reynolds, dated 27 February 1996;
34. Mr Gavin Brown, Assistant Commissioner of the Victoria Police Force, dated 6 March 1996;
35. The Honourable Mr Justice T.H. Smith of the Victorian Supreme Court, dated 22 March 1996;
36. The Honourable Mr Justice G.A. Miles, Chief Justice of the ACT Supreme Court, dated 21 June 1996;
37. Mr Paul Chadwick, Communications Law Centre, dated 4 September 1996.

The submissions received by the Committee were overwhelmingly in favour of the adoption of the Evidence Act 1995 (Cth). Of those listed above, favourable submissions were received, for example, from a judge of the Supreme Court of Victoria, the Victorian Bar, the Chief Magistrate of Victoria, the Insurance Council of Australia, the national law firm Arthur Robinson & Hedderwicks and the Legal Aid Commission of Victoria. Several submissions raised queries about specific provisions of the Act, whilst endorsing the Act as a whole and the overall aim of uniformity. The number of submissions which were against the Act as a whole was small, and based on the view that the current combination of common law and statute in Victoria is easily understood and working well.

The Committee's own view, however, is that the current law of evidence in Victoria is complex, difficult to locate, and frequently uncertain. Adoption of the Act, on the other hand, would bring the rule of evidence together, in what the Bar aptly described as a "conceptually coherent form"[1]; and in language which, according to a submission from a judicial registrar of the Industrial Relations Court of Australia, is "easy to understand and to apply to the endless disputes on admission which come before the courts".[2] The Act is not, of course, immune from criticism, as the Committee's own analysis shows. Nevertheless, the Committee wholeheartedly agrees with the observation - made by Mark Weinberg QC, a prominent member of the Victorian Bar, and endorsed by the Honourable Justice T.H Smith of the Victorian Supreme Court - that "whatever criticisms one may have of the legislation it is a significant improvement on the existing common law and statutory provisions". [3]

The Act is the final result of an inquiry into the law of evidence begun by the Australian Law Reform Commission (`the ALRC') in 1979. In carrying out its inquiry, the ALRC conducted extensive consultations in all Australian jurisdictions as well as producing two discussion papers and sixteen research papers on various aspects of the law of evidence, before releasing its two-volume interim report on the law of evidence in 1985.[4] After further consultation, the final report, containing a draft Bill was released in 1987.[5]

In 1988 the New South Wales Law Reform Commission recommended that the ALRC Bill should, subject to minor amendments, be adopted in New South Wales. In 1991 Evidence Bills were introduced into the Commonwealth and New South Wales Parliaments, but did not proceed. Later that year, however, the Standing Committee of Attorneys-General gave in-principle support to the idea of uniform legislation based on these Bills.

After further consultation between the Commonwealth and New South Wales Attorneys-Generals' Departments, substantially identical legislation was produced in 1993. The Commonwealth Bill was referred to the Senate Standing Committee on Legal and Constitutional Affairs which carried out further hearings into the legislation, before finally recommending its enactment, subject to some minor amendments. Both Bills were finally passed in 1995, the Commonwealth Act coming into operation on 18 April 1995, the New South Wales Act on 1 September 1995. The Committee can therefore appreciate the Honourable Justice T.H. Smith's comment that "I very much doubt if there has been any legislation enacted that has undergone the scrutiny and debate of this legislation".[6] Since its enactment, moreover, three detailed commentaries on the legislation have already been published.[7]

In considering whether to adopt the Act, Victoria is also in the fortunate position of being able to see whether the Act is creating problems in those jurisdictions where it is already in operation. According to the submissions received by the Committee, no such problems have arisen. The submission from the Victorian Bar claimed that "the Act is working well in both the Federal Court and the Family Court"[8]; the submission from the above-mentioned judicial registrar stated that "In presiding as a judicial officer I have found the Act to be of refreshing assistance when faced with rulings"[9]; and the Chief Justice of the Supreme Court of the Australian Capital Territory has confirmed that the Act is "working satisfactorily".[10]

Many of the submissions also emphasised the substantial advantages of uniformity in the law of evidence. Some submissions alluded to the possibility of forum-shopping; others to the importance of uniform evidence law to the creation of a national, and nationally competitive, legal profession; and yet others to the burden of requiring practitioners - who may be in a Federal court on one day and a State court on the next - to be familiar with two sets of evidence rules.

These factors suggest that failure to adopt the Act might well place the Victorian legal profession at a disadvantage in the developing national market for legal services. The Committee is at present advised that only South Australia has ruled out the adoption of the Act, with Western Australia, Tasmania and the Northern Territory currently engaging in processes of consultation about the Act's adoption. The Committee believes that Victoria should be at the forefront of this move towards uniformity.

Evidence Act 1995 (Cth)

This part of the report contains the detailed discussion of the Evidence Act 1995 (Cth) (`the Act'). The structure of the report follows the structure of the Act itself, so that for each Chapter, Part or Division of the Act there is a corresponding heading below. The Act comprises five main parts - Preliminary, Adducing Evidence, Admissibility of Evidence, Proof, Miscellaneous - together with a Dictionary containing all the definitions in the Act.

Given the background to the legislation, the existence of the ALRC's reports on which the Act is based, and the publication of several detailed commentaries about the Act, the Committee did not, however, think it an appropriate use of resources to engage in a detailed section-by-section analysis of the Act. What the Committee instead chose to do was to respond to the queries and objections contained in the submissions which were received.

For constitutional and other reasons certain provisions found in the Commonwealth legislation are not necessarily appropriate for State legislation. Some of these provisions are highlighted in the Committee's report. Wherever possible, the New South Wales Act - as a State Act - should be followed as a model for any Victorian legislation. In the interests of uniformity, the numbering of provisions in the legislation should mirror the Commonwealth and New South Wales legislation, even though some sections might be omitted.

The Committee received a letter from the Commonwealth Attorney-General's Department dated 7 February 1996. (That letter is set out in Appendix A.) The Committee notes that the Commonwealth proposes to amend the Evidence Act 1995 (Cth) in a number of respects. None of the proposed amendments affect the Committee's view, although the Committee notes it will be necessary to continually monitor the uniform legislation and liaise with the Attorneys-General of the Commonwealth and New South Wales.

RECOMMENDATION 1

The Committee recommends that subject to the following recommendations,* the Evidence Act 1995 (Cth) be adopted as a model for uniform legislation in Victoria. It notes however that for constitutional and other reasons, certain provisions in that Act are not necessarily appropriate for State legislation. Wherever possible, the Evidence Act 1995 (NSW) should be followed. In the interests of uniformity, the numbering of provisions in the legislation should mirror the Commonwealth and New South Wales legislation, even though some sections might be omitted.

*Note that the further recommendations are contained in the body of the Report.

Last update 22/8/99 ©Parliament of Victoria