Thursday, 13 May 2010
Foreign Evidence Amendment Bill 2008
Debate resumed from 5 February, on motion by Senator Wong:
That this bill be now read a second time.
The Foreign Evidence Act 1994 provides a means of adducing foreign material obtained through mutual assistance as evidence in Australian criminal and related proceedings. The Foreign Evidence Amendment Bill 2008 would streamline the process for adducing foreign evidence, particularly where that evidence is a business record. The bill as proposed to be amended by the government amendments would displace the operation of the rule against hearsay with respect to foreign business records—that is, foreign business records could be adduced even when the record contains hearsay evidence provided that the other evidentiary requirements in the particular jurisdiction are satisfied.
The amendments would also enable the court to examine foreign material and draw inferences from the material in order to establish the material as a business record that may be adduced and would remove a provision of the bill which would have given the court the discretion to limit the use to be made of foreign material. It will remove a provision of the bill which would have created a presumption that foreign material complied with the testimony requirements in the Foreign Evidence Act and will make minor consequential amendments to the application provision. This would assist in relation to complex prosecutions involving the use of evidence obtained overseas, including investigations into people smuggling and associated conduct such as the provision of material support and laundering the proceeds of criminal activity. With those short words, I commend the bill to the Senate.
by leave—The Foreign Evidence Amendment Bill 2008 has quite a history. As originally drafted, the amendments proposed by the bill provide that business records obtained through mutual assistance will be presumed to be admissible unless the court is satisfied that the records are not reliable or probative, or are privileged. In addition, there are measures to provide for testimony to be admitted in Australian courts although the law in the country where the evidence was taken does not require such evidence to be given on oath or affirmation, or under caution, provided that there is an obligation to tell the truth.
The opposition’s consultations revealed some significant concerns about the practical effect of the bill. The following shortcomings were identified. Firstly, subclause 24(4) of the bill provides for material obtained as a result of a mutual assistance request to be adduced as evidence if it ‘appears to consist of a business record’. This is a departure from established principles of evidence, which require the party seeking to rely upon the material to establish that it is in fact a business record. In effect, this reverses the onus of proof and requires the accused to establish that the material is not a business record.
Secondly, the regime introduces a broad judicial discretion as to admissibility of foreign material, at the expense of the ordinary rules governing the admissibility of evidence. Thirdly, subclauses 24(5) and (6) provide that, once foreign material has been adduced, the material will be admissible despite any other rule of evidence. Exclusionary rules of evidence—for example, the rules as to opinion, tendency or hearsay evidence—will not be available as a safeguard. Fourthly, foreign testimony is presumed to comply with local rules as to an obligation to tell the truth unless evidence sufficient to raise a doubt to the contrary is adduced. This reverses the usual onus of proof on that issue as well. Fifthly, the bill has a retrospective operation—that is, it would, if enacted, apply to proceedings currently on foot. Rules of evidence are considered procedural rather than substantive and therefore the presumption against retrospectivity does not apply.
The effect of the bill, therefore, could be to expose Australian litigants to liabilities on the footing of evidence of a standard inferior to that which would be required by an Australian court. Accordingly, the bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report. At those hearings, both the Law Council of Australia, represented by some very senior practitioners including Mr David Russell QC, and civil liberties groups raised similar concerns. The committee reported on 10 March. The opposition members of the committee recommended that the bill not be passed in its existing form. The government’s response has been amendments which were circulated in the Senate in August last year, although it has taken until today for the Senate to consider them.
The amendments significantly truncate the bill. They provide that, once the court has determined that foreign material consists of a business record, it will be admissible despite the hearsay rule. Business records are an exception to the hearsay rule under the Commonwealth Evidence Act and, as far I can determine, in most other Australian jurisdictions. It therefore would not seem to make any substantive change to the law, other than to make specific provision for evidence that has been obtained from a foreign source under a mutual cooperation agreement. In those circumstances, in its amended form, the coalition is now in a position to support the bill.
In closing, I would like to record my thanks to those whom I have consulted in relation to this dense though, to us lawyers, intensely fascinating subject—in particular, Mr Russell QC and Robin Speed and Daniel Appleby of Speed and Stracey Lawyers, who were instrumental in identifying the practical shortcomings of the bill in its original form, as well as Mr Odgers SC and Ms Sarah Moulds of the Law Council of Australia, who provided such valuable evidence to the committee.
Question agreed to.
Bill read a second time.