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FOREIGN EVIDENCE AMENDMENT BILL 2008

                                  2008-2009




               THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA




                                   SENATE




                    FOREIGN EVIDENCE AMENDMENT BILL 2008




                    SUPPLEMENTARY EXPLANATORY MEMORANDUM




     Amendments and New Clauses to be Moved on Behalf of the Government




              (Circulated by authority of the Attorney-General,
                    the Honourable Robert McClelland MP)











           AMENDMENTS TO THE FOREIGN EVIDENCE AMENDMENT BILL 2008

OUTLINE

 1. The purpose of these amendments to Schedule 1 of the Foreign Evidence
    Amendment Bill 2008 (the Bill) is to respond to the report of the
    Senate Standing Committee on Legal and Constitutional Affairs (the
    Committee) following its inquiry into the Bill.

 2. The Foreign Evidence Act 1994 provides that foreign evidence may be
    adduced provided the evidence would have complied with all relevant
    rules of admissibility in the particular jurisdiction, had the person
    given the evidence in person at the hearing.  The Bill sought to
    streamline the requirements for foreign business records by providing
    that business records could be adduced unless the court was satisfied
    the records were not reliable or probative, or the records were
    privileged.  In response to the Committee's report, the amendments
    would remove a number of the provisions of the Bill and instead
    maintain the current position in the Foreign Evidence Act that all
    types of foreign evidence, including business records, may be adduced
    provided they comply with the evidentiary rules in the relevant
    jurisdiction.  However, in order to address the problems identified in
    adducing foreign business records under the current provisions of the
    Foreign Evidence Act, the amendments would displace the operation of
    the rule against hearsay with respect to foreign business records.
    That is, foreign business records could be adduced even where the
    records contain hearsay evidence, provided the other evidentiary
    requirements in the particular jurisdiction are satisfied.

 3. The amendments would also:

  . enable the court to examine foreign material and draw inferences from
    the material, in order to establish the material is a business record
    and may be adduced

  . remove a provision of the Bill which would have given the court a
    discretion to limit the use to be made of foreign material

  . remove a provision of the Bill which would have created a presumption
    that foreign material complied with the testimony requirements in the
    Foreign Evidence Act, and

  . make minor consequential amendments to the application provisions.

FINANCIAL IMPACT STATEMENT

There is no direct financial impact on Government revenue from this Bill.
NOTES ON AMENDMENTS

Amendment 1


 5. Amendment 1 would omit item 8 of the Bill.  Item 8 sought to add
    proposed subsection 22(3), which created a presumption that the
    requirements as to testimony in subsections 22(1) and 22(2) of the
    Foreign Evidence Act had been met, unless evidence sufficient to raise
    doubt was adduced to the contrary.  Omitting item 8 would implement
    Recommendation 1 of the Committee's report by making clear that there
    is no onus on the non-adducing party to establish that foreign material
    does not comply with the testimony requirements in the Foreign Evidence
    Act.

Amendment 2


 6. Amendment 2 would omit items 11 and 12 of the Bill and substitute new
    item 11.  New item 11 would add proposed subsections 24(3) and 24(4) to
    existing section 24 of the Foreign Evidence Act.

Proposed subsection 24(3)


 7. Proposed subsection 24(3) would provide that foreign business records
    may be adduced where the records contain hearsay evidence, provided the
    other evidentiary requirements of the Foreign Evidence Act are
    satisfied.


 8. The Foreign Evidence Act currently provides that foreign evidence may
    be adduced provided the evidence would have complied with all relevant
    rules of admissibility in the particular jurisdiction, had the person
    given the evidence in person at the hearing.  The Bill sought to
    streamline the requirements for foreign business records by providing
    that business records could be adduced unless the court was satisfied
    the records were not reliable or probative, or the records were
    privileged.


 9. The amendments address issues identified in the Committee's report by
    maintaining the current position in the Foreign Evidence Act that all
    types of foreign material, including business records, may be adduced
    provided they comply with the evidentiary rules in the relevant
    jurisdiction.  The Bill, as amended, will implement Recommendation 1 of
    the Committee's report by making clear that the adducing party is
    required to satisfy the court that foreign business records meet the
    evidentiary requirements of the Foreign Evidence Act.


10. In order to address problems identified when adducing business records
    pursuant to the current provisions of the Foreign Evidence Act, the
    amendments would displace the rule against hearsay with respect to
    foreign material that is a business record.  Proposed subsection 24(3)
    would provide that paragraph 24(2)(b) of the Foreign Evidence Act,
    which provides that foreign material may be adduced unless it would not
    have been admissible had the person given the evidence in person at the
    proceeding, does not apply to foreign material that is a business
    record if the only reason the evidence would not have been admissible
    is that an Australian law relating to hearsay evidence would have
    applied to the evidence.  That is, foreign business records could be
    admissible where the records contain hearsay evidence, provided the
    other evidentiary requirements in the particular jurisdiction are
    satisfied.


11. The term 'Australian law' is defined in subsection 3(1) of the Foreign
    Evidence Act to mean a law (whether written or unwritten) of or in
    force in the Commonwealth, a State or a Territory.  This would
    encompass both statutory and common law.


12. The rule against hearsay generally provides that evidence which
    contains previous representations that are intended to assert the
    existence of a fact is not admissible unless a relevant exception
    applies.  Often the only reason a business record is inadmissible is
    because it technically constitutes hearsay evidence.   For example,
    where the person giving evidence about the business record is not the
    person who created the record, the evidence may constitute hearsay and
    be excluded from evidence, notwithstanding that the records are
    otherwise reliable.  While some jurisdictions provide for an exception
    to the rule against hearsay for business records, witnesses in the
    foreign country may be unable or unwilling to provide testimony which
    would satisfy the requirements of the exception. Amendment 2 would
    ensure that foreign business records are not excluded from evidence
    simply because the evidentiary requirements relating to an exception to
    the hearsay rule cannot be met.  The person tendering the business
    records would not be required to provide proof that the records fall
    within an exception to the rule against hearsay.


13. Paragraph 24(3)(b) refers to 'an Australian law relating to hearsay
    evidence (however described) ...'.  This provision makes clear that it
    is not necessary for the relevant laws to use the terminology of
    'hearsay' for the laws to be applicable.  For proceedings to which
    Commonwealth evidence law applies, the hearsay rule is set out in
    section 59 of the Commonwealth Evidence Act 1995.


14. The court would retain its general discretion under current section 25
    of the Foreign Evidence Act to prevent foreign material from being
    adduced.  However, the intention of subsection 24(3) is that evidence
    should not be excluded solely on the basis that it does not comply with
    the rule against hearsay.


Proposed subsection 24(4)


15. Proposed subsection 24(4) would provide that the court may draw
    inferences from certain matters in determining whether foreign material
    is a business record, and may be adduced.  This amendment would ensure
    that the court is able to draw inferences from matters such as the
    content and form of the foreign material and the manner in which it was
    obtained (including that it was obtained pursuant to a request by the
    Australian Government for formal government to government assistance),
    in order to determine both that the foreign material is a business
    record, and that it may be adduced as evidence.

16. A similar provision enabling the court to draw inferences is contained
    in section 183 of the Evidence Act 1995 (Cth).

    Item 12 to be omitted

17. Amendment 2 would also omit item 12 of the Bill.  Item 12 of the Bill
    would have inserted proposed section 24A.  Proposed section 24A would
    have created an additional discretion enabling the court to limit the
    use to be made of foreign material.  This was included as the court's
    general discretions to limit the use of material were excluded by the
    other provisions in the Bill in relation to foreign business records.
    As the other changes made by amendment 2 would require all foreign
    material to comply with the relevant rules of admissibility in the
    jurisdiction (with the exception of the rule against hearsay in some
    instances), amendment 2 would remove this discretion from the Bill.
    Relevant rules of admissibility would encompass discretions to limit
    the use to be made of evidence where applicable in the jurisdiction.

Amendment 3


18. Amendment 3 would amend the heading of item 15 of the Bill to omit
    references to amendments made by item 8.  This amendment is a
    consequential amendment to amendment 1, which would omit item 8 from
    the Bill.

Amendment 4


19. Amendment 4 would amend item 15 of the Bill to omit references to
    amendments made by item 8.  This amendment is a consequential amendment
    to amendment 1, which would omit item 8 from the Bill.

Amendment 5


20. Amendment 5 would omit item 17 of the Bill which provided for the
    application of item 12 of the Bill.  This is as a consequence of
    amendment 2, which would omit item 12 of the Bill.