The Pamphlet Collection of Sir Robert Stout: Volume 50
Federal Evidence Bill
Federal Evidence Bill.
On the motion of Mr. Berry the President left the chair, and the Council resolved into committee on this bill.
On clause 1—" Short Titled—
Mr. Griffith moved the insertion of the word "Council," after the word "Federal."
Mr. Dickson said that this bill was now presented for the first time; it was not the bill read a second time yesterday.
Mr. Berry: Yes it is. You are thinking of the Judgments Bill. This is the Evidence Bill.
Mr. Dickson: Oh, I beg pardon. (Laughter.)
Clause 1 was then passed as printed.
On clause 2—page 56
Mr. Griffith said that before this clause was proposed he desired to bring up a new clause, of which he had given notice, and the reasons for which he had pointed out yesterday. They had only a limited jurisdiction, but the Act should apply to all such matters as they had jurisdiction over. In the bill three subjects only were mentioned, but there was no reason why it should not apply to all such subjects. He moved the insertion of the following as clause 2:—"This Act relates to all cases in which it may be necessary for the purposes of any Act of the Federal Council to make proof of such things as are in this Act referred to."
Mr. Dodds: The proposal of my hon. friend will remove, I think, to some extent, the objections I had to this bill yesterday, because the object of this amendment is to confine the proof to documents and proceedings necessary to the purposes that are clearly defined in the Act itself. It will be remembered that yesterday I had some doubt as to whether we were not unwise in asking the Council to pass this into law, but the language of the amendment is such as will to some extent remove that doubt. Since the discussion yesterday took place, it has occurred to me that this bill is unnecessary, inasmuch as the process of the different Courts of each colony are under the present law of England, admissible in the other Courts of each colony. On this point Taylor on Evidence says:—"The modes of authenticating the records and judicial proceedings of foreign and colonial Courts, including those of the Channel Islands, India, and all other possessions of the British Crown, except Scotland, are now regulated by Lord Brougham's Evidence Act, which enacts that all judgments, decrees, orders, and other judicial proceedings of any Court of justice in any foreign state, or in any British colony, and all affidavits, pleadings, and other legal documents, filed or deposited in any such Court, may be proved either by examined copies, or by copies authenticated as follows: that is to say, they must purport either to be sealed with the seal of the Court to which the originals belong; or if there be no seal, to be signed by one of the Judges of such Court, who must also certify to the fact of there being no seal. When these provisions are complied with, no evidence is required either to authenticate the seal, signature, or certificate attached to the copy, or to prove the official character of the Judge." It will thus be seen that examined or authenticated copies of such proceedings, judgments, orders, and documents can be received in evidence in the manner prescribed by the statute. That would make all proceedings in the Courts in the British colonies admissible in evidence in England in the manner indicated by the Act. By a later section of the same statute it is enacted:—"That every document which, by any law now in force or hereafter to be in force, is, or shall be, admissible in evidence of any particular in any Court of justice in England or Wales or Ireland, without proof of the seal, or stamp, or signature authenticating the same, or of the judicial or official character of the person appearing to have signed the same, snail be admitted in evidence to the same extent and for the same purposes in any Court of justice of any of the British colonies, or before any person having in any of such colonies, by law or by consent of parties, authority to hear, receive, and examine evidence, without proof of the seal, or stamp, or signature authenticating the same, or of the judicial or official character of the person appearing to have signed the same." If, by force of this statute, the proceedings of colonial Courts are admissible in evidence in England, and by the later section any evidence admissible in the Courts of England, including the process of colonial Courts, is admissible in all the Courts of the colonies, it follows that the bill we are proposing to legislate upon is unnecessary. I think the Supreme Court in this colony on certain occasions has put this interpretation upon the statute, and if that be the true construction the Act we are now passing is to a large extent superfluous. On this point I should be glad to have the opinions of the other hon. members of the Council.
Mr. Berry: I think it would be better to go on and pass this bill through committee, and consider the clauses with the amendments that have been proposed. I will, however, call attention to the seventh section of the bill, by which it will be seen that even if the contention of the hon. member for Tasmania is correct, the provisions of this Act shall be in addition to, and not in derogation of any powers of proving documents existing at common law or given by any law now in force in any colony of the federation. We thus take away by this Act no present powers, and it is quite possible that in the plurality of the proceedings of the Federal Council that such an Act may be decidedly useful. As we have passed two important Acts, one relating to the service of Civil process, and one to the enforcement of judgments, it will be that this Act may facilitate proof of proceedings taken under them. We should try and make our proceedings as perfect as possible, by making clear the evidence that may be given on these subjects. Considering the short time we have at our disposal we had better go on and pass the bill through committee.
Mr. Griffith said his opinion had fluctuated a good deal about the bill. There could be no doubt that provisions of this kind would have to be made, as there could be scarcely any legislation that they could pass that would not require that the proceedings of one colony should be proved in another. He was not prepared to say without much more consideration how far the provisions of Imperial and local Acts already sufficiently provided for these matters. His own impression was that they did provide for them, but not in so simple a method as was provided by this bill. On the whole he thought it desirable to proceed with the bill, and to put it in the shape they might think it ought to take, and if on consideration of the report it was not thought desirable to go further they need not do so.
Mr. Dodds saw no harm in taking that course. They would have another opportunity of considering the bill before it finally became law. If the provisions were found to be unnecessary the bill could either be withdrawn, or they could amend it to meet the case.
New clause put and passed.page 57
On clause 2, as follows:—All Courts and persons acting judicially within the federation, shall in matters relating to the service of Civil Process of and to the enforcement of judgments of the Courts of the Australasian colonies, and to the enforcement of Criminal Process, take judicial notice of—
All Acts of the Federal Council and of all Acts of Parliament of any Australasian colony:
All unwritten laws, rules, and principles having the force of law administered by any Court sitting under the authority of Her Majesty in any Australasian colony, whatever may be the nature of the jurisdiction thereof:
The course of proceeding and all rules of practice in force in the Supreme Court of any Australasian colony:
The colonies forming the Federation, and of the extent of their territories.
Any paper purporting to be a copy of any Act of the Federal Council and purporting to be printed by the Government Printer of any Colony of the Federation, and any paper purporting to be a copy of any Act of Parliament of any Australasian Colony and purporting to be printed by the Government Printer of such Colony, shall, in matters relating to the service of Civil process of and to the enforcement of judgments of the Courts of the Australasian Colonies and to the enforcement of criminal process, prima facie be deemed to be a correct copy of the same respectively without any proof being given that such copy was so printed.
Mr. Griffith moved the insertion of the words "For the purposes of this Act" at the commencement of the clause.
Motion put and passed.
Mr. Griffith moved the omission of the words "in matters relating to the service of Civil Process of and to the enforcement of judgments of the Courts of the Australasian Colonies, and to the enforcement of Criminal Process."
Motion put and passed.
Mr. Griffith called attention to the second paragraph in the clause, which he thought a large demand to make on any Judge, who could not know what the unwritten rules and laws of any other colony were. He was not himself likely to be a Judge, but if he were he would not like to have to discharge such functions as those.
Mr. Berry: Suppose they were brought before him?
Mr. Griffith: He would have to take judicial notice of them, and that too without proof. They would not even be in writing, and how could a Judge sitting in Melbourne know what unwritten laws were recognised in Fiji. If a man told the Judge that anything was an unwritten law he would have to take judicial notice of it, though it might be right or it might be wrong. It would be requiring the Judge to take judicial notice of what he did not know, and could not find out.
Mr. Berry said they did not know if there were any unwritten laws in any colony.
Mr. Griffith: There must be in Fiji in connection with the native race.
Mr. Berry said if there were any it would be only right for them to have the same force in any other colony of the federation as in Fiji itself, because it ought to have to all intents and purposes the same validity as any other law. He did not understand the position taken up by the hon. member for Queensland that the Judge would have to take judicial notice of unwritten laws without the need of proof being given.
Mr. Griffith: That is what the clause says.
Mr. Berry: The Judge could not take notice of a fiction. The idea was that he took notice of an unwritten law or custom that could not be taken notice of in some other Court. It seemed to him to be common sense that no judge would take notice of anything unless it were proved to him by evidence that it had the force of law in some other Australasian colony.
Mr. Griffith: The clause makes him take judicial notice without evidence.
Mr. Berry said the only reason lie insisted on the clause was because he thought it desirable to place all the colonics on the same footing. He would feel loath to exclude even Fiji on such an important matter, and he would like to hear the opinions of the hon. member for that colony on the subject.
Mr. Dodds said the hon. member in charge of the bill was placed at a disadvantage by reason of the fact that he had not the assistance of a legal colleague, and having regard to that fact hon. members should certainly not endeavour to throw any difficulty in his way; but it appeared to him that when the hon. gentleman said he desired to place the whole of the colonies on the same footing the clause in question was designed to do the very opposite. The arguments of the hon. member for Queensland were unanswerable. To require a Judge to take notice—judicial notice—that is, notice without proof of all unwritten laws, was to require that he must be almost superhuman. It would be impossible for a Judge to know what such laws were, and the consequence of such a provision as this would be that instead of having the colonies placed on an equal footing, each colony would be bound by rules which it believed to be in force elsewhere. There would be no uniformity of procedure, and they might just as well say that the Council was to be guided by the unwritten rules of all the other colonial legislatures, in which case the President would be left to his own resources. He would be unable to adopt any particular practice, and if he tried to assimilate the whole he would find it impracticable, and the position one he could not extricate himself from. His hon. friend would see that the paragraph was quite unworkable, and certainly should not find a place in the bill. That showed the necessity for the careful consideration of the point to which he had previously alluded, namely, that such a bill as that was unnecessary when they had legislation already in force as regards the written law. With regard to the unwritten law, it seemed to him to be a question that was not within the limits of practical legislation.
Dr. Macgregor said that as far as the colony of Fiji was concerned, it would not be very much affected by the bill in one way or the other. There was a duly constituted body called the Native Regulations Board, and whenever occasion arose, enactments having exclusive application to natives were prepared by that body and submitted to the Legislative Council; and when page 58 the approval of the Council was given, they had the force of law. They were then printed in the Gazette, and carefully translated into the native language and copies supplied to the European and native magistrates. The judicial system of that colony was such that he could hardly conceive of any case likely to come before the Supreme Court of any other colony affecting a native of Fiji. Fiji that would not be regulated by the written law. In fact, the case of Fiji may be omitted from the discussion on the point raised.
"All unwritten laws, rules, and principles having the force of law administered by any Court sitting under the authority of Her Majesty in any Australasian colony, whatever may be the nature of the jurisdiction thereof."
Amendment put and agreed to.
"The course of proceeding, and all rules of practice in force in the Supreme Court of any Australasian colony."
It was doubtful whether one court should be required to take notice of the course of proceeding and rules of practice of another Supreme Court. They were sometimes uncertain, and had often to be the subject of argument. To require another court to take judicial notice of them might be very inconvenient, and he could not conceive of any case in which it would be necessary. He moved the omission of the words.
Amendment put and agreed to.
"The date which appears on any such copy, purporting to be the day on which such Act received the Royal Assent, shall be received for all purposes as evidence of the date of such assent."
Amendment put and agreed to, and clause, as amended, passed.
Consequential amendments were made on clauses 3 and 4.
Clause 5 was passed as printed.
On clause 6,
Mr. Dodds said that the phrase "Local Court" in this clause, might mean anything; but he understood that in South Australia there were certain Courts there so designated, so that the word had a special signification. he thought that; on the whole, the clause might stand as printed.
The clause as printed was passed.
Clause 7 was passed.
The bill was reported with amendments, and the amendments ordered to be taken into consideration next day.