STATUTES AMENDMENT (VULNERABLE WITNESSES) BILL

Wednesday 03 June, 2015

Mr TARZIA (Hartley) (17:14): I also rise to speak to the Statutes Amendment (Vulnerable Witnesses) Bill 2015. I will be supporting the bill. As we have heard, the bill was introduced by the Attorney on 6 May and what it actually does is amend the Evidence Act 1929, which consolidates the rules regarding presentation and admissibility of evidence in our courts. This is very important.

Mr TARZIA (Hartley) (17:14): I also rise to speak to the Statutes Amendment (Vulnerable Witnesses) Bill 2015. I will be supporting the bill. As we have heard, the bill was introduced by the Attorney on 6 May and what it actually does is amend the Evidence Act 1929, which consolidates the rules regarding presentation and admissibility of evidence in our courts. This is very important.

Obviously there are a number of things at play when you instigate these kinds of laws: making sure that you protect the integrity of evidence, making sure that you protect the vulnerability of witnesses, and making sure you protect the vulnerability of witnesses in the context of the evidence they give as well. This is what this bill does. It goes to the heart of these sorts of issues, and what we have here are related amendments to acts covering the Supreme Court, District Court and Magistrates Court acts as well as many others.

As a background to this, we know that the government published the Disability Justice Plan back in 2011, and it is welcome that it is trying to fulfil some of these election commitments to progress what have been some of the highest priorities of that report. The government claims that the bill will improve the position of vulnerable parties, including children and people with disability, whether they are victims, witnesses, suspects, plaintiffs or defendants.

However, one of the things the government has failed to take up is the courts precinct, and I need not remind the government that it does have an obligation to upgrade these facilities. We know that the court infrastructure in South Australia is not where it needs to be; the IT software in the courts in South Australia is not where it needs to be. Time and time again judges, magistrates, members of the legal fraternity have called for upgrades to this. It seems to be a fundamental element that the government continually fails to address, and I would like to point that out and seek sight of that in the budget that is coming up. We need to get these things right, and for too long the profession has had to operate in an environment with substandard facilities. It is not good enough, and the government needs to do better.

However, back to the bill. The bill provides for the definition of cognitive impairment and defines what that is. It also defines 'vulnerable witness', and that has actually changed to accommodate more recent developments. The definition of 'young child' is increased from age 12 to age 14. It also talks about admission into evidence of audiovisual records. Regulations will require that an interview be conducted by a specially trained person while the court retains discretion in respect of admissibility. Specialist training for interviewers is proposed to support these changes.

The bill also talks about special hearings for the pre-trial taking of evidence from children 14 years and under with disability, or persons with a disability who are victims or witnesses in trials involving sexual or violent offences. This will allow evidence to be taken as close as possible in time to the charges as they are laid, to assist memory and also to avoid what may be a reliving of the experience suffered months later. It also provides for the extension of priority of sexual assault trials where the complainant is a child to those where the complainant has a disability. It also amends the Evidence Act.

I compliment the drafters of the bill. This is not an easy task; it is a very tricky bill to get your head around. I spent many weeks toiling over the Evidence Act in my law school days and I think the drafters of the bill have done quite a good job, initially, in getting this right. The bill aims to amend the Evidence Act to give people with complex communication needs the right to a general entitlement to have a communication assistant present for contact within the criminal justice system, both in and out of court, and the model expands on the existing rights to an interpreter.

The bill also amends the Evidence Act to clarify an increase in access to appropriate persons to provide emotional support, both in and out of court, and to broaden special arrangements that are available in the giving of evidence. I note that the court could regulate the manner, the topics and also the timing of questions. It also goes to the heart of what inappropriate questions are and clarifies the definition of inappropriate questions, including those 'too complicated for a witness to understand'.

Additionally, the bill repeals section 34CA of the Evidence Act to allow admissibility as a limited exception to the hearsay rule. There are claims that new section 34LA will resolve this, and I look forward to hearing the Attorney explain how that will be done. The bill also clarifies criteria for the determining of the competence of a witness and, furthermore, clarifies the operation of the law that governs exemptions to close relatives from giving evidence against the accused.

In addition, the bill clarifies the rules in relation to the initial complaint of sexual conduct by an alleged victim allowing it to demonstrate a consistency of conduct. In this bill, the weight is still left to the judge or jury. This bill tightens the restrictions on access to audiovisual records and transcript, expands the meaning of 'sensitive material' and allows regulations to provide a procedure so that interviews can be reviewed for training purposes.

When you look at what other jurisdictions have done, it is interesting to put what we are suggesting here in context. I note that Victoria has an Independent Third Person scheme as part of the Office of the Public Advocate. In the Northern Territory, I believe they have drafted legislation to allow exceptions to the hearsay rule being considered. Overseas, it is the case, especially in Canada and England, that wide general exemptions to the rule are allowed. I note that SA, WA and Queensland are not party to the uniform evidence act.

I note that the bill has been put out for consultation. The Law Society especially has provided a draft submission to the Disability Justice Plan, and has expressed the concerns that I raised just a short time ago in regard to the budgetary resources of our courts. The courts are already overloaded and there are concerns in regard to greater delay in other criminal cases and civil trials.

However, if this does result in more prosecutions, if this does result in more evidence being able to be used for good purpose and benefit, that is certainly a good thing. At the same time, I note that we are still waiting for certain stakeholders to provide their feedback, so it may be that, in another place, this bill will be subject to further scrutiny, as is the case for many laws.

Overall, I support the intent of the bill. I applaud the writers of the bill. I understand that it is a tricky part of law and I think this is a good attempt to get right an area that has probably been not where it needs to be for a long time. With those few words, I commend the bill to the house.