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17 Nov 2015

Evidence (Records and Documents) Amendment Bill

Adjourned debate on second reading.

(Continued from 27 October 2015.)

The Hon. A.L. McLACHLAN ( 17:49 ): I rise to speak to the Evidence (Records and Documents) Amendment Bill 2015 and advise that the opposition will be supporting the second reading. The current Evidence Act that operates in South Australia has not been amended in recent years to reflect the significant advances that have been made in the modern electronic age and the consequential changes to the way we communicate in everyday life.

As a consequence of this, the provisions contained within the Evidence Act that deal with the admission and proof of computer-generated evidence are not often utilised in practice. The government advised, during the second reading contribution, that courts and litigants improvise and work around the current law in order to deal with the admission of computer-generated evidence, and that there are no specific provisions contained in the current act to cater for electronic communications.

In 2012 the South Australian Law Reform Institute reviewed the South Australian evidence laws and the way they deal with modern technologies. Its report, entitled ‘Modernisation of South Australia evidence law to deal with new technologies’, recommended a number of amendments be made to the South Australian Evidence Act 1929. In particular, the institute recommended that the Evidence Act be amended to provide for the proof and admission of information that is generated, stored, reproduced or communicated by a technological process or device that reflects modern technologies and can accommodate future as yet unknown technologies.

The bill before the chamber makes a number of amendments to the Evidence Act in order to implement these recommendations. The amendments have been drafted with the aim of keeping South Australia’s law in this area consistent with the Uniform Evidence Act models. The bill redefines the term ‘document’ to reflect the definition in the Acts Interpretation Act 1915, which includes all records made by any process whereby information is stored and can be retrieved. The aim of this is to encapsulate sophisticated methods of storing electronic and digital information and communications. The bill incorporates a wide definition of a document by defining a business record to include any document prepared or used in the ordinary course of a business for the purpose of recording any matter relating to the business.

The bill repeals part 6 and part 6A which currently deal with the admission of lettergrams and telegrams, as the government advises that these are rarely used because the requirements are too burdensome and they can be used only as an aid to proof. Furthermore, part 6A cannot currently be used to facilitate the admission of evidence or information produced or communicated by the internet and modern electronic devices.

To address these inadequacies the bill introduces a new provision to facilitate proof of evidence that is produced by processes, machines or other devices that is intended to enable the admission of computer-generated evidence. The bill also introduces a new clause 55 to simplify the rules surrounding evidence of telegraphic messages by creating a rebuttable presumption of receipt by the addressee within 24 hours of the delivery of the communication to a post office or transmission as a lettergram or telegram.

The bill also inserts a new section creating a rebuttable presumption of accuracy of evidence produced by computers consistent with section 146 of the Uniform Evidence Act models. This means that the parties producing evidence of such documents will no longer have to prove the authenticity and reliability of the process or the device, unless there is evidence displacing the presumption. For example, a party would not have to prove the reliability or accuracy of a computer from which an email had been produced as a precondition to the admission of that email into evidence. It is important to note that this section only permits the document generated to be admitted as a presumptive aid to proof, but not as to the truth of its content.

The bill provides for the admissibility of documents that have been reproduced by instantaneous processes, such as photocopying or scanning, where the content has been recorded and stored in a storage device and reproduced; for example, on a hard drive. This amendment pays regard to the modern technologies that have emerged and are frequently used to store and produce data; for example, images or words that are reproduced from electronically stored data, such as that from social media sites, into hard copy format would be admissible. Again, this is confined to a form of admissible evidence and does not extend to make admissible the contents of a document to prove the truth of the representation it contains.

The bill introduces a new provision to provide for the admissibility and proof of evidence of electronic communication, for example text messages, emails and social media posts. The bill defines electronic communications in the same terms as the Commonwealth Electronic Transactions Act 2000 which is not device-specific or method-specific and therefore broad enough to embrace all modern and even future technologies.

In particular, the section provides for a presumptive aid to proof for all electronic communications as to the accuracy of its sending and making, the identity of the sender or maker, when and where it was made or sent from, and where and when it was received, and the admissibility of an electronic communication to prove the truth of what is contained in the electronic communication as to the identity of the person who sent the communication and the person to whom it was addressed, the date and time at which it was sent, and the destination of the communication. If its reliability is contested, the court has the power to exclude it.

I advise the chamber that the opposition has not received any submissions from relevant organisations indicating any opposition to the clauses in this bill. It is clear that the prolific growth in the use of modern forms of technology, in particular text messages and social media, has also led to an increased use of this as evidence in civil and criminal court proceedings. It is clear that South Australian evidence law is in need of modernisation to accommodate these advances.

The opposition is hopeful that the existing powers vested in the judiciary to refuse to admit evidence where it would be unfair or prejudicial will provide the appropriate safeguards when the bill is passed. We will watch the application of these provisions with interest. With those words, I commend the bill to the chamber.

Debate adjourned on motion of Hon. J.M. Gazzola .

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