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Legislation Review Committee

Published on: June 2020

Record: HANSARD-1323879322-110987

Legislation Review Committee

Report: Legislation Review Digest No. 11/57

Debate resumed from 3 June 2020.

Ms FELICITY WILSON (North Shore) (12:49):

:51 As Chair: I address the House on behalf of the Legislation Review Committee regarding the eleventh digest for this Parliament, tabled out of session on 25 March 2020. In that digest the committee examined eight bills introduced in the prior two sitting weeks and found issues in all eight bills. The committee also examined 47 statutory instruments and found issues in six. I draw the House's attention to some of the issues raised. The Anti‑Discrimination Amendment (Complaint Handling) Bill 2020 is a private member's bill. It seeks to amend the Anti-Discrimination Act 1977 by providing that the president of the Anti-Discrimination Board must decline a complaint on certain grounds. One of those grounds is where the respondent to a complaint has a cognitive impairment and it is reasonably expected that the impairment was a significant contributing factor to the conduct that is the subject of the complaint. The committee acknowledged that the intention of the amendment is to protect people with a disability. However, by inserting a requirement to decline such complaints, the bill may impact on the right to protection against discrimination. In the circumstances, the committee referred the provision to Parliament to assess whether it is reasonable and proportionate in the circumstances.

I turn to the Evidence Amendment (Tendency and Coincidence) Bill 2020. The bill implements recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse. The bill amends the Evidence Act 1995 in relation to the admissibility of tendency and coincidence evidence. The purpose of tendency evidence is to show that an accused had a tendency to act in a particular way or to have a particular state of mind. Coincidence evidence is intended to show that it is improbable that two or more similar events occurred coincidentally. Under the current law, tendency or coincidence evidence is not admissible unless the court determines that the evidence would have significant probative value. The bill relaxes the test about the circumstances under which tendency and coincidence evidence can be used against a defendant. The amended test requires that the probative value of the evidence outweigh the danger of unfair prejudice to the defendant. Under the current test, the probative value of the evidence must substantially outweigh any prejudicial effect on the defendant before it can be used.

The bill provides that tendency evidence relating to a child sexual offence is presumed to have significant probative value. These changes may impact the defendant's right to a fair trial, including the right to be presumed innocent unless proven guilty beyond reasonable doubt. The committee noted that the bill includes some safeguards—for example, the presumption that certain tendency evidence is of significant probative value is rebuttable. The committee also acknowledged that some of the bill's changes relating to tendency evidence apply only to proceedings concerning a child sexual offence and that particular evidentiary hurdles may be faced by victims of child sexual offences in court proceedings. However, the committee noted that the bill may increase the risk that evidence unfairly prejudicial to a defendant is admitted in a particular case. In the circumstances, the committee referred to Parliament the matter of whether the defendant's right to a fair trial is adequately protected by the bill.

Finally, I comment on the committee's review of the Firearms and Weapons Legislation Amendment (Criminal Use) Bill 2020. The bill proposes to expand police search powers in relation to a firearms prohibition order made against a person who, in the opinion of the New South Wales police commissioner, is not fit to possess a firearm. The existing power allows police to search a person who is the subject of a firearms prohibition order, their premises and vehicles without a warrant. The bill allows police who enter such premises to search any person present who is reasonably suspected of possessing a firearm, part of a firearm or ammunition. That may potentially include persons who are not the subject of a firearms prohibition order and are not involved in criminal activities. The bill may thereby increase the risk of arbitrary searches and impact on the right to privacy and personal physical integrity. While the committee acknowledged that the intention behind the amendments is to assist the removal of illegal firearms from the community, it referred the expanded search powers to Parliament to consider whether they are reasonable and proportionate in the circumstances. I commend the digest to the House.

Report noted.