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Continued from 18 August 2005.
Dr TOYNE (Justice and Attorney-General): Madam Speaker, the bill introduced by the member for Araluen
would expand the current exception to the hearsay rule in section 26E of the Evidence Act to provide an exception to
the rule against hearsay in relation to a child's statement to another person in any criminal proceedings. The existing
exception to the hearsay rule provided by section 26E is a considered one. It was confined to sexual assault
proceedings because of the clearly identified difficulties with successfully prosecuting such offences. There is
extensive data evidencing the difficulties in this area. The impact that sex offending has on the ability of child
victims to give coherent evidence in court is well documented. This provision was part of a package of measures
designed to assist in expediting matters of this kind. However, as an exception to a fundamental rule of evidence,
this government was committed to ensuring that the provision was targeted. Accordingly, it balances the rights of
the accused to a fair trial, with the needs of the child witnesses and incorporates appropriate controls.
By contrast, the amendment proposed by the member for Araluen takes a very broad brush approach in creating an
exception which applies in relation to any kind of offence. The member's proposal does not appear to be based on, or
justified by, current law reform in any other Australian jurisdiction, nor by any contemporary research by law
reform bodies. I am concerned that such an amendment could lead to unintended and unacceptable implications for
criminal proceedings. It is also likely to lead to additional argument during proceedings, an increase in appeals, and
result in delays in finalising criminal matters.
The common law rule against the admission of hearsay evidence is designed to ensure that the best evidence is put
forward before a court and can be tested under examination and cross-examination. Any exceptions to this rule
should be well considered and tightly controlled and they should be just that - exceptions. It is not a simple matter of
extending the existing exception created by section 26E to cover all offences, or even seeking to adopt the approach
taken in another jurisdiction. Other jurisdictions frame their exceptions to the hearsay rule in relation to children's
evidence quite differently from the way in which it is done in the Northern Territory. In those jurisdictions where
exceptions apply to a broader range of offences, the level of protection for the accused person is framed differently
and the way in which the evidence is able to be used in court often differs as well.
While I am by no means opposed to further reform in this area, any additional exceptions to the hearsay rule should
not be made without detailed research into the implications of such a change. I note, in this context, that an extensive
review of the laws of evidence is currently being conducted by the Australian Law Reform Commission in
consultation with the Law Reform Commissions of New South Wales, Victoria and Queensland. In July this year, I
formally asked the Northern Territory Law Reform Committee to investigate and report to me on whether the
uniform Evidence Act should be adopted in the Northern Territory. The terms of reference require the committee to
collaborate with the Australian Law Reform Commission and other jurisdictions in conducting its review. While the
review of the laws of evidence being undertaken both here and elsewhere is wide ranging, it is worth noting that
areas of particular concern targeted for consideration by the terms of reference include the hearsay rule and its
exemptions.
It would be inappropriate to pre-empt the findings of the Law Reform Committee by passing an amendment that is
untested and lacks a readily identifiable evidence-based justification. The rule against hearsay is designed to ensure
a fair trial process and a cautious approach should be taken in this area to ensure that the chances of wrongful
conviction are negated as far as possible. Madam Speaker, on this basis, the government does not support the
member for Araluen's bill.
Ms CARNEY (Opposition Leader): Madam Speaker, I am not at all surprised that the government does not
support this bill. In fact, I have won a $50 bet as a result from someone near and dear to me. Recently, we were
discussing this bill. We were talking about the sittings this week, and that person said: 'So, you are doing section
26E?' I said: 'Yes'. That person said: 'What is going to happen?' and I said: 'They will not support. They will do two
things: one is that the government will issue a media release on the day announcing a review of the Evidence Act'.
They did not do that. I mentioned that in a phone call I had only half-an-hour or so ago.
The second thing I said is that they would oppose it because there was not enough evidence or, in the alternative, the
bill was flawed. So I have won my $50. This person also said: 'But it is the right thing to do; everyone knows that'. I
said: 'Yes, it is the right thing to do'. This person then said: 'You have a bit of time for Toyney. He knows what is the
right thing to do'. I said: 'Yes. It is not him; it is his staffers'. It is that blinding arrogance and ill-informed
understanding of various court proceedings that will ensure that the Attorney-General has come up with the
comments he did. Then that person said: 'But he is the Attorney-General'. I said: 'That makes no difference and, in
any case, I know, and they surely must know I know, that members of the legal profession in the Territory are
supportive of this amendment'.
I said when I introduced the bill that I do not propose to issue a media release about this. There is not a vote in it; it
is not an issue that any media outlet, in my view, would ever be interested in. It is the right thing to do. I am not
surprised that government has not supported it.
I know about the national reforms or investigations into the law of evidence around the country. In fact, I have
spoken to a couple of people very closely involved with the review of the laws of evidence. It is not surprising that
the Attorney-General has fallen short of saying the Labor government here is announcing a review of the Evidence
Act, but he has said there is a review of evidence laws generally, so he can hide under that rock.
To refresh the memories of members, I introduced this bill on 18 August and I quoted a part of the
Attorney-General's second reading speech from the Evidence Reform (Children and Sexual Offences) Bill, which
was introduced in August 2004. It is worth repeating for the sake of the Parliamentary Record. I quote from the
Attorney-General's second reading speech:
The purpose of this bill is to reduce the trauma experienced by child witnesses and other vulnerable
witnesses such as adults with intellectual disability in criminal proceedings for sexual offences, and
improve the quality of evidence from those witnesses in criminal proceedings.
I did say, as members will recall, when we debated the Evidence Reform (Children and Sexual Offences) Bill that,
in fact, it should have been called the Evidence Reform (Children and Sexual and Other Offences) Bill because that
bill which has now come into effect contains a number of matters that are well beyond the scope of sexual offences well beyond the scope of sexual offences. The name of the bill was somewhat misleading – and I use the term
'misleading' lightly. It just did not comprehensively cover the entire scope of the bill.
In any event, there is a fundamental point here; that is, that the aforementioned bill was introduced to reduce the
trauma experienced by child witnesses. On that basis, because it was constrained or contained, I should say, to child
witnesses and sexual offences, the point made by my amendment was that its application was too limited; that it
should be extended to child witnesses who are affected by crimes other than, or in addition to, sexual offences. I
referred in my second reading speech to other sorts of crimes - and I included reference to those contained within the
Territory's Criminal Code as well as those matters contained in the Community Welfare Act. I said that the
protection afforded to children who are the victims of sexual assault should be extended to all other child victims of
equally abhorrent crimes. This is not just about sexual offences; it is about child witnesses who suffer a range of
offences. It pains me to say this: sexual offences create some level of media interest. There are a whole lot of other
offences that do not.
Nevertheless, this amendment is important. I am sure it will be made eventually. I note that the Attorney-General
said in his reply that my bill was too much of a 'broad brush' and it applies to any kind of offence. No, it applies to
any kind of offence against a child; that is the difference. You did not say, Attorney-General, that it applied to any
kind of offence against a child; you simply said it applied to any kind of offence. Nonsense! In addition, you said –
and I am sure I have ascribed this correctly – that if the amendment came into law – or words to that effect – it could
lead to unintended consequences such as delays and more argument. Oh dear! Delays and more argument. Well, it
might just be worth it, Attorney-General. It might just be worth it to have a bit of a delay and a bit more argument so
that the child victims of a number of crimes that are not sexual offences are afforded the same protection that is
provided to children who are victims of sexual offences.
I note that you also referred to an absence of detailed research. Well, I am happy – I will rephrase that. I am not
altogether unhappy if the national review of the evidence laws does come up with the research. I do not have it with
me, but I can assure you I have a truckload of information about this stuff contained in various filing cabinets in
Alice Springs. There is much research that has been done by many highly skilled and learned people about the
damaging effects on children of giving evidence. You do not even need to be clever to work out that (a) that
research would exist, and (b) what it might say. It is extremely damaging, and it does not need to be just about
sexual offences. They were the issues raised by the Attorney-General. I thought they were limp, weak. However, he
did not have much to go on, so I understand that that was the best he could come up with.
Opposing this bill, in my view and, no doubt, the view of others, will mean that this government is prepared to
ensure that children who are the victims of crimes other than sexual offences are not afforded the same rights as
those who have been sexually assaulted. It is appalling. It is particularly appalling noting the second reading speech
of the Attorney-General when he introduced the Evidence Reform (Children and Sexual Offences) Bill in August
last year. I say again that I know that there are no votes in this. I also know that there is no media interest. I also
know that the legal profession, generally, supports this. I also know that it is the right thing to do; that is why I
presented this bill.
It used to be, a couple of years ago, that the Attorney-General used to say: 'If you have a good idea we will look at
on the merits'. They were the days when members of the Australian Labor Party were still happy, idealistic and keen
to make a difference. That has all changed. What we get now is derision and contempt for exercising our rights as
members of parliament representing the members of the Territory community. All we get is derision and contempt
for introducing what is – and I know it is, and you should know it is, although you probably do not, but your staffers
have told you it is not good legislation, and you oppose it because you cannot bring yourselves politically to say:
'Not a bad idea'.
You have not even said: 'It is not a bad idea but we will look at it in due course'. At best, you have said: 'If the rest of
Australia gets on to it, eventually we might look at it'. Not good enough for the first law officer of the Northern
Territory who, along with his colleagues, puts his hand on his heart and says: 'I care, I care'. Well, it would seem not.
Not surprisingly, I have won $50, so I suppose it is not altogether a bad result. However, I would have expected
more from the Attorney-General. With those remarks, Madam Speaker, I conclude.
Motion negatived.