Sunday, 20 September 2009

Transitional legislation arrives

The Bill to amend legislation before the commencement of the Evidence Act 2008 and Criminal Procedure Act 2009 was before the Parliamentary Assembly last Thursday (thanks for the tip, Jeremy).

It's called the Criminal Procedure Amendment (Consequential and Transitional Provisions) Bill 2009. The Explanatory Memorandum for it can be found here.

At 256 pages, the proposed bill is only marginally smaller than the Criminal Procedure Bill itself (and larger than our new Evidence Act). Most of the changes are administrative in nature, to promote consistency in approach and terminology across a variety of Acts.

Of note is Clause 50, which will reproduce the provisions currently found in ss 37A - E and Division 3AA (ss 41A - E) of the Evidence Act 1958. The Bill will preserve existing special rules relating to the giving of evidence in sexual offence and family violence proceedings.

(Section 8 of the Evidence Act 2008 provides that it doesn't affect the operation of any other Act. Here's an example of where parliament clearly doesn't want our Evidence Act to be uniform with other states).

I'm still leafing through it. If you come across something that you think will change things dramatically, let us know.

1 comment:

Jeremy Gans said...

Note that there's another bill too: the 'Statute Law Amendment (Evidence Consequential Provisions) Bill 2009', which (a) repeals lots of the Evidence Act 1958 (and renames it); (b) inserts transitional provisions into the Evidence Act 2008; and (c) makes a substantive change to the EA2008, adding a new ground for witness unavailability - mental or physical ability to testify - presumably helping out prosecutors who have witnesses who are too traumatised or scared to testify.

Buried in the CPA(C&TP)B is a very unwelcome change in clause 50 of schedule 2: the replacement of the word 'defendant' with the word 'accused' throughout the whole EA2008. Its purpose is to fit in with the CPA terminology, but it's an annoying break with national uniformity and will complicate the task of text and annotation authors.

The redrafted sexual offence provisions are interesting. Section 37A is now fourteen sections long and is slightly weakened, apparently for Charter reason. There is also a new first-hand hearsay (and credibility) exception for all previous representations by available child sexual offence complainants, with no test of freshness, exclusion of witness statements or notice requirement. Basically, there's now virtually no hearsay rule at all in such trials.