1.24We received a total of 19 submissions. These are listed in Appendix 1 to this report.
It may be unfashionable to compliment change, but I am of the view that the Evidence Act (“Act”) is working pretty well. I have been encouraged by the fact that some have read it, and generally arguments are sourced in its terms rather than those dated cases of the early 2000s. Mostly, the words of the Act are clear, and promote sensible debate …. [O]verall I consider it is a positive development.
I think on the whole the Act is working reasonably well and as intended as an aggregate matter. It was a very carefully thought-out piece of legislation produced after many years. You would expect it to operate coherently.
1.27Generally, submissions were focused on particular issues that are perceived to have posed difficulties, or which have been the subject of attention from the appellate courts. Of these issues, we consider that only a small number can be described as causing significant problems in the day to day application of the Act.
1.28There appears to be widespread agreement amongst commentators that the most problematic provision is previous consistent statements (s 35). That is certainly the issue that has generated the most case law at Court of Appeal and Supreme Court level.
1.29The other main issues of significance identified by commentators and submitters related to the propensity provisions and the privilege for settlement negotiations or mediation. We consider that the remainder of the issues identified are relatively confined issues, the majority of which can be described as technical in nature and do not appear to warrant urgent legislative intervention.