It may sound implausible, but I have to admit that since leaving the Senate, I haven’t managed to find the enthusiasm (or the time) to follow every single debate that has occurred in that illustrious Parliamentary chamber. So I have to admit the following heartfelt declaration of adoration for the beauty and majesty of the law was only brought to my attention via an email through one of my current workplaces.
Cue Queensland Senator George Brandis, speaking this week in the debate on the Evidence Amendment Bill:
To most people, I suspect, the rules of evidence would be a very dry and prosaic subject, but to me as a lawyer they are endlessly fascinating. I regard the law of evidence as being-along with the symphonies of Beethoven or the architecture of Christopher Wren or the poetry of John Milton or Einstein’s general theory of relativity-among the great achievements of the human mind. The complexity, the subtlety and the sophistication of the rules are indeed remarkable, and the manner in which legislative draftsmen have captured the complexity of those rules, which consist of a large number of categories, subcategories, subsubcategories, exceptions and subexceptions, is a great tribute to them. The rules of evidence have been expressed by great legal textbook writers like James Bradley Thayer and Wigmore, in America, and by the incomparable Sir Rupert Cross, at Oxford University, who, like a 20th century Teiresias, laboured through blindness to create his monumental work on the law of evidence. They have now been reduced to statutory form, and the statutory formulation in the 1995 bill has now been improved upon.
One is tempted to opine as to why his attachment to the majesty of elegant legal traditions such as the rule of law, habeus corpus or natural justice did not lead to any tortured cries of anguish when these were all being happily trashed by the previous government. None the less, it is quite nice to see some real interest, appreciation and understanding being shown about legislation being passed. In amongst the majoryt of media coverage of Parliamentary proceedings, It is often forgotten that the most significant function of Parliament is not as a platform for insults and point scoring, but for reviewing and creating laws.
In regards to the legislation Senator Brandis was waxing lyrical about, some of the key changes it makes include:
further guidance on the definition of hearsay evidence, details on the admissibility of expert evidence , reducing the threshold for admitting coincidence evidence, ensure same-sex couples are treated in the same manner as de facto spouses, create a new exception for evidence/opinion given by a member of an Aboriginal or Torres Strait Islander group about certain matters and to make it clear that a trial judge is not to give a warning about the reliability of the evidence of a child solely on account of the age of the child – along with other things.
Or to put it in simpler terms, “children, Aboriginals and disabled people will be given more flexibility when giving evidence in court”
While on the subject of evidence, Jeremy Gans, a blogger who also has an obvious enthusiasm for the law, reports on a ruling by the Grand Chamber of the European Court of Human Rights. The ruling relates to the admissibility of evidence from a police interrogation being used when no opportunity for access to a lawyer was provided.
The right to communicate with a lawyer was one of many which the former federal government tried to restrict as much as possible when it came to asylum seekers. As with US Courts, European Court rulings have no direct impact on Australian court judgments, but the principles enunciated can none the less be influential.
I won’t try to summarise the post here, but if you are interested in the intersection between human and legal rights I recommend you have a look.
Jeremy Gans comments that
the issue remains to be dealt with by Australian law’s amorphous fairness and public policy discretions. It’s far from clear that the High Court would take a similarly strict approach. Australia’s evidence law is, alas, characterised by a reluctance to exclude evidence in trials of serious matters, given the need of courts to keep their ‘legitimacy’ (apparently in the face of public upset at villains getting off on ‘technicalities’)
As far as I can see, the amendments to the Evidence Act which generated such an understandably grandiose testimony from Senator Brandis still don’t resolve this question. I guess like Beethoven’s Symphony, some acts of creative genius are never quite finished, but instead get reinterpreted and refined down through the ages.
