EXPLANATORY STATEMENT
Issued by the Authority of the Attorney-General
Evidence Act 1995
Proclamation
Subsection 4 (6) of the Evidence Act 1995 (the Act) provides that the provisions of the Act (other than sections 185, 186 and 187) cease to apply to proceedings in an Australian Capital Territory (ACT) court, except so far as the provisions apply to proceedings in all Australian courts, on a day to be fixed by Proclamation.
The purpose of the Proclamation is to enable the Evidence Act 2011 (ACT) (the ACT Evidence Act) to apply in ACT courts from the date of its commencement on 1 March 2012.
The ACT has been consulted on this instrument.
The Act does not specify any conditions that needed to be satisfied before the Proclamation was made.
The Proclamation is a legislative instrument for the purposes of the Legislative Instruments Act 2003 and is registered on the Federal Register of Legislative Instruments.
Statement of Compatibility with Human Rights
Overview
The ACT Evidence Act implements the Model Uniform Evidence Bill (the Model Bill) into the Territory. The purpose of the Model Bill is to promote and maintain uniformity and harmonisation of evidence laws across Australian jurisdictions. The Model Bill clarified evidence laws by partially codifying complex common law rules and re-writing statutory rules of evidence in a clear and concise manner.
Human rights implications
The ACT Evidence Act is in most respects uniform with the Act. Where the text of the ACT Evidence Act varies from the Act, it has only been done to accord with the drafting style of the ACT and does not make any substantive changes to the evidence law applicable in the ACT. As such, there will be no change in the impact on human rights as a result of the cessation of the application of Commonwealth evidence law in the ACT.
The ACT Attorney General has issued a Compatibility Statement in accordance with the Human Rights Act 2004 (ACT) (the Human Rights Act) that in his opinion the Evidence Bill 2011 (ACT) is consistent with the Human Rights Act. As noted in the explanatory statement to the Evidence Bill, the legislation contains a number of provisions which engage rights under the Human Rights Act. It provides for broad judicial discretions to exclude evidence or limits its use in certain circumstances. These judicial discretions operate as safeguards that protect and balance the rights of parties to proceedings (civil and criminal), the rights of witnesses and the importance of the court hearing all relevant, reliable and probative evidence. They are consistent with and give effect to the rights under the Human Rights Act, particularly the right to a fair hearing.
Conclusion
The legislative instrument is compatible with human rights because its effect is that there will be no change to the human rights available in the ACT.
Authority: Subsection 4 (6) of the
Evidence Act 1995