Basic facts and useful resources about the uniform evidence legislation

Now I have too many words in my Advanced Evidence paper, so you can have the first off-cut.

The uniform evidence legislation is comprised of:

  1. The Evidence Act, 1995 (Cth.), which commenced almost 15 years ago on 18 April 1995;
  2. The Evidence Act, 1995 (NSW), which commenced on 1 September 1995;
  3. The Evidence Act, 2001 (Tas.), which commenced on 17 December 2001;
  4. The Evidence Act, 2004 (Norfolk Island), which commenced on 1 December 2004;
  5. The Evidence Act, 2008 (Vic.), which commenced on 1 January 2010.

The Victorian Act was amended before it commenced (including a Victoria-specific widening of the hearsay exceptions), by the Statute Law Amendment (Evidence Consequential Provisions) Act, 2009 and the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act, 2009, so buy the forthcoming (green) reprint rather than the (grey) numbered Act, and be careful for the time being to check whether Austlii’s consolidation is up to date.

The Evidence Act, 1958 (Vic) has been renamed the Evidence (Miscellaneous Provisions) Act, 1958.  When Austlii catches up with the law, the consolidated amended Act will presumably be here.  The bits that are overtaken by the Evidence Act, 2008 were repealed (thanks to God!).

The Acts comprising the ‘uniform’ evidence legislation are now very similar, but Tasmania’s is less similar than the others.[1] The Commonwealth Act applies in Commonwealth courts like the High Court, Federal Court, Federal Magistrates’ Court, Family Court, and in Commonwealth tribunals required to apply the laws of evidence.  It also applies in ACT courts, and continues to have a limited application in all Australian courts and tribunals, mainly in relation to Commonwealth records, but that is not actually news.  The state and territory Acts apply in state courts and tribunals required to apply the laws of evidence.

Two reports of the Australian Law Reform Commission are particularly important.  The 1987 final report (ALRC 38) was the genesis of the original Commonwealth and NSW Acts.  Amendments to those Acts which came into effect on 1 January 2009[2] were born of a December 2005 report co-published by the Commonwealth, NSW, and Victorian Law Reform Commissions (ALRC 102).

The 2009 amendments were extensive.[3] The law of client legal privilege was substantially amended, for example.  Not only was the law of implied waiver amended so as almost to conform with the language of Mann v Carnell,[4] but the application of the Act was partially extended from trial to pre-trial evidence as well.  No longer does the absurd situation obtain where the common law of legal professional privilege governed discovery and the uniform evidence legislation’s client legal privilege provisions governed evidence at trial.[5]

The 2009 amendments mean that the discussion of uniform evidence legislation in the latest editions of Cross on Evidence (2004), and Dr Desiatnik’s Legal Professional Privilege in Australia (2005) are out of date, as is the penultimate, 7th, green and gold, edition of Odgers’ Uniform Evidence Law (though if you have it you might hang onto it as a ready record of the Act as it stood before the 2008 amendments).  So too may decisions in cases the trial of which commenced in 2008 or previously need to be read carefully in case they interpret pre-amendment provisions.[6]

Melbourne University’s Associate Professors Jeremy Gans and Andrew Palmer have produced a characteristically reader-friendly text, Uniform Evidence, which I am fortunate to have had limited pre-publication access to. Its charts and flow diagrams rock. It has just been published by Oxford University Press.

The Judicial College of Victoria has produced a Uniform Evidence Manual.

[1] The differences between the Commonwealth, NSW and Victorian Acts are summarised in the standard annotation, Odgers, Uniform Evidence Law, (8th ed., 2009) Thomson Reuters, at [1.1.70].  The differences between the Tasmanian and Commonwealth Acts are summarised in Appendix E to Odgers.

[2] Evidence Amendment Act, 2007 (NSW); Evidence Amendment Act, 2008 (Cth.).

[3] They are summarised in Odgers, Uniform Evidence Law, (8th ed., 2009) Thomson Reuters, at [1.1.60].

[4] (1999) 201 CLR 1.

[5] It remains the case that the Act’s concern is with hearings in cases in ‘courts’ and tribunals which are bound by the laws of evidence, so the common law will continue to apply in non-curial settings such as in demands by the Legal Services Commissioner for the production of documents in the exercise of his power of compulsion in s. 4.4.11 of the Legal Profession Act, 2004.  See s. 4 of the Evidence Act, 2008. The situation is not quite so simple, however, since s. 122(2) says that the privilege provisions do not prevent the adduction of evidence if the client has acted in a way inconsistent with him objecting on the basis of privilege, but s. 122(5) says such inconsistency will not be present merely because circumstances exist which might, at common law, amount to a waiver of privilege.  Accordingly it is not necessarily the case that ‘once waived, always waived’; what the common law might take to be a waiver of privilege in an extra-curial setting might not operate to prevent the adduction of the same controversial communication in a court or tribunal bound by the Act.

[6] The amended Acts applied to cases the trial of which commenced in or after 2009: see, e.g. part 2 of schedule 1 of the Evidence Amendment Act, 2008 (Cth).

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