Dissenting Comments by Liberal
Senators
1.1
Liberal senators wish to dissent from the conclusions and
recommendations of the majority members of the committee in relation to its
report on the Foreign Evidence Amendment Bill 2008.
1.2
Whilst it might be desirable to consider some changes to existing laws,
Liberal Senators consider that there should be no departure from established
Australian law and principles in the absence of proof of the need for change;
and that the changes proposed in the Bill are the right changes. The majority
report fails one or both of these tests in a number of respects.
1.3
In many places, the majority report notes but effectively dismisses the
evidence received from a range of respected, independent legal experts,
including the Law Council of Australia. These experts did not support either
the objects or the provisions of the Bill, primarily on the basis that the Bill departs from established legal principles, and does so in the absence of demonstrated
justification. Despite this, the majority report repeatedly notes and accepts,
without any express or rigorous probative inquiry, evidence provided by the
Attorney-General's Department.
Established legal principles and laws of evidence
1.4
In particular, the Law Council argued that the introduction of a
procedure for adducing foreign material that appears to consist of a
business record is contrary to Australian law. Furthermore, the Bill provides for this evidence to be admissible, despite any other Commonwealth, state or
territory rules of evidence, including those jurisdictions' exclusionary
evidence rules. These rules provide safeguards which are neither replicated nor
replaced within the Bill.
1.5
While there might be difficulties associated with gathering evidence
overseas, these difficulties do not justify creating a special rule for the admission
into evidence of foreign business records. Australian law intentionally
establishes high evidentiary standards so as to protect the rights of
individuals in the administration of justice. The Bill lowers these standards
for foreign business records when the evidence presented by the NSW Council for
Civil Liberties suggests that to the contrary there is heightened cause for
concern.[1]
Judicial discretions
1.6
Liberal senators are not persuaded that the 'four-pronged' test embodied
in the Bill protects individual rights vis-a-vis domestic business records
under Australian laws. Individual rights are of fundamental concern to Liberal
senators, who consider rules rather than discretions the most appropriate means
of safeguarding individual rights. Accordingly, a test which relies on two
subjective exercises of power is neither sufficient nor satisfactory.
1.7
As noted, by the Law Council of Australia, Australian law has always
divided the rules of admissibility between rules and discretion, precisely
because judicial discretion is 'inevitably uncertain, subjective and it depends
on the judicial officer involved'.[2]
Liberal senators do not consider discretion an equivalent or appropriate substitute
for rules of evidence and cannot condone the Bill's radical departure from
established Australian law.
Reversal of onus and prima facie admissibility
1.8
Several submissions and witnesses queried the reliability and probity of
foreign business records, and two provisions of the Bill effectively require
the non-adducing party, often the less resourced Accused, to prove that such
evidence does not meet evidentiary thresholds. This is contrary to established
principles of law, which have been in existence for hundreds of years.
1.9
The committee was told that these provisions – subclause 24(4) and 22(3)
– will enable a wide range of foreign material, including material that does
not fit the broad definition of 'business records' and which might have been
obtained contrary to Australian principles of justice, to be adduced as
evidence.
1.10
Furthermore, according to the Law Council of Australia, the reversal of
onus dilutes the principles of evidence law designed to protect against the use
of material that is unreliable, irrelevant or unfairly prejudicial to the
defendant. The Council could not identify any rationale for this reversal and
highlighted its prejudicial effects:
...the party in possession of the
evidence is usually in a better position to address those factual issues. That
is certainly true when the prosecution adduces evidence of foreign business
records. The prosecution will have the record and will usually have greater
resources than the defence. It will be very difficult for the defence to
demonstrate that an apparent business record is unreliable on the face of the
document and the defence will confront great hurdles in obtaining other
evidence to establish lack of reliability.[3]
1.11
Liberal senators agree with the majority members of the committee that
the adducing party continue to bear the onus of proving reliability and probity
of foreign business records to be adduced as evidence in Australian
proceedings. However, Liberal senators consider that the Bill requires more
than this amendment.
Prima facie admissibility
1.12
The effect of certain provisions of the Bill is to render foreign
business records prima facie admissible. Not only does this create a
lower threshold for those kinds of evidence, it ignores the fact that, as noted
by the Law Council of Australia, foreign jurisdictions do not necessarily
collect evidence in a manner which would be acceptable in Australian
jurisdictions.
1.13
The department waived off these comments, telling the committee that:
...it is appropriate that evidence taken in accordance with the
procedures in a foreign country’s legal system be considered as testimony,
notwithstanding that it does not comply with Australian formalities concerning
the taking of evidence.[4]
1.14
Liberal senators acknowledge cited examples of situations in which
evidence taken overseas would not comply with Australian 'formalities',
including references to evidence obtained under torture or through the misconduct
of law enforcement officers. Submissions particularly noted the Guantanamo Bay
Rules.[5]
1.15
Liberal senators do not consider Australia's high evidentiary standards
as mere 'formalities'. They exist to protect the rights of individuals in the
administration of justice, even more justifiably when the evidence in question
stems from questionable sources. The Bill recognises a lower level of probity for
foreign business records than currently exists for domestic business records. Liberal
senators reject the need for this approach.
Retrospective provisions
1.16
The majority report concludes that certain items in the Bill are not retrospective provisions. However, evidence to the committee from the Law Council
of Australia and the NSW Council for Civil Liberties flagged this as a legal
concern. The issue merits further scrutiny, if not by this committee then by
the Australian Law Reform Commission.
Conclusion
1.17
The majority cites pragmatism as the reason for its recommendations. Pragmatism
falls significantly short of sufficient justification of either the need for
these provisions or their appropriateness. Furthermore, Liberal senators are
not convinced of the supposed urgency for this Bill. Although the department
declined to comment, Liberal senators note discussion in the House of
Representatives on introduction of the Bill,[6]
and agree with the Law Council of Australia that introducing a new regime which
departs from Australian law is not a justifiable response to investigative
difficulties experienced in a high profile prosecution (arising from Operation
Wickenby).[7]
Given the contentious nature of this Bill, Liberal senators consider that the Bill as it stands should not be passed by the Senate.
Recommendation 1
1.18
Liberal senators recommend that the government withdraw the Foreign
Evidence Amendment Bill 2008 and refer it to the Australian Law Reform
Commission for examination. If the government does not accept this
recommendation, Liberal senators recommend that the Senate reject the Bill.
Senator Guy Barnett
Deputy Chair
Senator Mary Jo Fisher
Senator Russell Trood
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