Please note: This is an extract from Hansard only. Hansard extracts are reproduced with permission from the Parliament of Tasmania.

EVIDENCE (AUDIO AND AUDIO VISUAL LINKS) BILL 1999 (No. 5)

Second Reading

Mr PATMORE (Bass - Minister for Justice and Industrial Relations - 2R) - Mr Speaker, I move -

That the bill be now read the second time.

Mr Speaker, the purpose of this bill is to provide a mechanism for enabling the taking of evidence or submissions from witnesses by audio link or audio visual link, where the proceeding is being heard in one State, and the witness is physically present in another.

The bill is based on a model bill approved by the Standing Committee of Attorneys-General. The use of audio links or audio-visual links for taking evidence already occurs across Australia in the Federal jurisdiction and across the Tasman, between Australia and New Zealand. At present, witnesses in proceedings before a Tasmanian court must be physically present in Tasmania and in most cases, physically present within the court when they give evidence. Similarly, if a person is required as a witness in a proceeding interstate, the witness must travel to that location to give evidence.

At present, although audio-visual facilities exist in the Supreme Court and courts of petty sessions in Hobart and Devonport, there are no legal mechanisms available to enable the enforcement of certain legal requirements across jurisdictions, such as administering the oath or enforcing contempt proceedings.

The bill will apply to proceedings in the Supreme Court, the lower courts and tribunals in Tasmania. It will enable the court, on the application of a party, to direct that evidence be taken or a submission be made by either audio link or audio-visual link from a participating State, that is, one which has also adopted the model bill.

The bill provides for the recognition of courts in other States so that they may take evidence or receive submissions in any proceedings by audio link and audio-visual link from a person in Tasmania, using Tasmanian court facilities as necessary. The links must be available in both jurisdictions and must be of the same type, so that parties at each court room or other place are able to see and/or hear each other. It follows that a court can only order evidence be taken this way if the necessary facilities are available and it is convenient to do so.

Participating States undertake to permit a recognised court to:

exercise its powers within the State;

enforce court orders as if they were orders of a court in the participating State;

confer on participants the privileges, protection and immunity of participants to proceedings within the State;

administer an oath or affirmation;

provide an officer of the court to attend and assist in proceedings; and

apply its contempt provisions.

Such reciprocal powers are necessary to ensure that proceedings follow the law of the State where the action is being heard, while still ensuring that the enforcement of an order or sanction will occur where the evidence is given.

The option of using audio and audio-visual links will be beneficial to the parties and the witnesses involved, especially in civil matters which may require the attendance of specialist witnesses from interstate. For example, many personal injury matters rely on interstate medical witnesses and the costs associated with attending court can be high as it involves not just travel expenses but payment for time away and loss of income. For short factual evidence, the cost of a link may be considerably less than the cost of an air fare and daily expenses. The benefit of taking evidence this way would need to be assessed on an individual basis, but there is potential for savings to all parties, including the Crown. Any costs arising from the use of equipment and facilities would be borne by the relevant parties and in any event would be offset against the savings made from reduced witness expenses.

I commend the bill to the House.

Mr GROOM (Denison) - The Opposition supports this bill. We think it is a sensible scheme being proposed for the giving of evidence by audio link or audio-visual link between Tasmania and some other State either when there are proceedings in a court or tribunal elsewhere and there is a witness in Tasmania or where there is a witness interstate for proceedings being held here in a court in Tasmania or a tribunal sitting in this State - tribunal is defined in the bill.
It does follow consideration of the difficulties that can be created when you are endeavouring to establish audio and visual links for this purpose and some of the matters of course have been raised by the Attorney-General but there can be difficulties in a formal sense so we do need a scheme that is a cooperative scheme agreed to by the various States hopefully and the Territories so that we can have a national scheme.

I think it is a practical move because we are tending to use these sorts of links more and more often in our legal system and, as the Attorney has explained, it can have very practical benefits where you do have a witness interstate in terms of the balance of convenience and of course in terms of cost. Where an expert witness - for example, a medical specialist - coming from Melbourne or Sydney to Tasmania in a civil action might be a surgeon and he or she might be very busy and have a huge number of patients awaiting surgery, the cost of bringing that person down maybe for a day or two, the air fares, are probably small compared to the cost of the fees that would be required to pay for the person and they could be waiting around the court of course, waiting for their turn. If it can be arranged in a convenient manner, that surgeon can actually perhaps still carry out surgery, and go to a place where they can give evidence by video link and, as I say, this does create a lot of convenience for everyone concerned.

It can, I am sure, in some cases speed up the process. An issue might arise where there is some evidence required and subject to the normal practices of the court being fair to the other parties and so on, you can arrange it quite quickly. I am sure as time goes on this will become more and more common and when we develop our technology for these sorts of purposes then it will become a commonplace action in the courts. The matter was considered by the Standing Committee of Attorneys-General and I do recall some discussions on the matter during my time as Attorney.

There are a couple of points I make very briefly. One is that I notice that the scheme allows for submissions, not only the giving of evidence by these links but also making submissions. So I could imagine if you have, for example, a senior counsel with particular expertise in some area wishing to make some submissions rather than that lawyer coming from the mainland he or she could appear somewhere on the mainland and make that submission by audio or visual link between Tasmania and the other State.

This could have quite interesting ramifications for legal practice into the future. We might find this could develop as time goes on. I hope it will not mean that our local practitioners will miss out on work but perhaps they will gain work because they may have the chance of becoming expert in areas and making submissions in particular matters on the mainland. We hope that that might occur to our benefit.

The other point and I think it is probably self-evident that what I am saying is a bit too broad an interpretation but does the term 'the State or participating State' - I refer to clause 4 - in fact mean the State of the Commonwealth of Australia? I am sure that it is the intention to mean the State of the Commonwealth of Australia. Of course 'State' can have a broader meaning than just another State. I raise that because - I cannot recall whether the Acts Interpretations Act would define 'State' as meaning a State of the Commonwealth of Australia when it is referred to in legislation. I do not recall that but it might be the case. But could it be interpreted as meaning a state in the broader sense; that is, another state around the world, another country? I doubt that that is the intention. But the world is getting smaller and I do suspect as time goes on that we will find that we may well have arrangements with other parts of the world using means of communication - internet link of course is one example - where we can actually perhaps have an expert witness in the United States giving evidence in a Tasmanian court. No doubt it could be done now with not too much trouble, I would imagine, and people within the court could then question the person and the judge might ask questions and so on. This could all be achieved. So maybe as time goes on we will find that this bill when it becomes law, and I am sure it will, might be expanded even further to include arrangements and agreements with other parts of the world, not just other States and Territories of Australia.

The Opposition supports the bill.

Mr PATMORE (Bass - Minister for Justice and Industrial Relations) - Mr Speaker, I can indicate that New South Wales and South Australia have already adopted this bill and discussions are being held with the other States on this. As you are aware, Mr Speaker, this legislation only deals with participating States, and they have adopted the terms of the act corresponding to Parts 2 and 3.

Mr Speaker, Mr Groom made a comment about States. It deals purely with States within Australia, although the definition does also include Territories, so it is an internal document. I think they are the points you raised.

Mr Rundle - I made the point about submissions. It is interesting that you make submissions -

Mr PATMORE - Yes. No, submissions by solicitors are not intended.

Mr Groom - Yes, it can.

Mr PATMORE - It could, but it is not intended.

Mr Groom - No, it says that.

Mr PATMORE - Yes, but it is not intended. I think it would be a very foolish person that sought representation from a solicitor who was not present in court - very foolish indeed.

Mr Groom - Well I am thinking of a very technical matter.

Bill read the second time and taken through the remaining stages.