Chapter 1
Initial review under section 202: background, purpose
and guiding principles

Our approach

1.30 We have taken the view that, given the emphasis of s 202 on the “operation” of the provisions of the Act and the reasons for the inclusion of s 202 in the Act, what is required by this review is a focus on how the Act is being applied and whether it is working as intended. We do not consider this to be a first principles review.

1.31Nor do we consider that it is appropriate for the Law Commission to use the review as an opportunity to revisit policy decisions that were taken by the government when it introduced its Evidence Bill or those decisions made by Parliament throughout the legislative process. There were a number of places where the Law Commission’s Code was changed along the way. Where the legislative intent is clear and the Act is working as intended, we have not recommended change.

1.32We have recommended legislative change when it is clear that the Act is not working as intended or there is a real problem with how it is operating, and it appears there is no room for the courts to correct the approach. In some instances we have recommended small technical amendments to clarify or tidy up a provision. In our 2010 advice to the government on the veracity and propensity provisions we said:20

As one would expect, the Courts are continuing to refine, and in some instances self-correct, their early interpretations of the provisions. We consider that opportunity ought to be allowed for this process to continue. Consequently, although the operation of this legislation has not been perfect, we think it remains possible that any wrinkles will be ironed out over time.

1.33This is the approach we have continued to apply in our review under s 202.

1.34The other point of note in relation to s 202 is that it is a mechanism providing for ongoing periodic review of the Act. We have been very conscious of the fact that the Act has only been in force for a little over five years. In some areas, there is little or no case law to date. For this reason, we have been cautious about intervening before the approach that will be taken is clear. This is not the final or only opportunity to recommend amendment. In saying this, it is clear in some areas (s 35 being the most obvious) that intervention is required.

20Letter from Geoffrey Palmer (President of the Law Commission) to Simon Power (Minister Responsible for the Law Commission), above n 14, at 3.