Tasmanian Bill Introduces Legislative Framework For Use of Intermediaries in Courts

Thursday 17 September 2020 @ 10.10 a.m. | Crime | Judiciary, Legal Profession & Procedure | Legal Research

The Evidence (Children and Special Witnesses) Amendment Bill 2020 (TAS) (the Bill) was introduced into the Tasmanian Parliament on 25 August 2020 by Minister for Justice, the Hon Elise Nicole Archer (the Minister).  It reached first reading stage in the Legislative Council on 15 September 2020. The Bill makes amendments to the Evidence (Children and Special Witnesses) Act 2001 (TAS), the Criminal Code Act 1924 (TAS) and the Legal Aid Commission Act 1990 (TAS) for the purpose of establishing a legislative framework for the use of intermediaries in Tasmanian courts.

According to the Minister's explanatory statement, the Bill delivers on the "Tasmania Government’s commitment to implement the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse", in particular the recommendation to establish a "Pilot Witness Intermediary Scheme" in Tasmania.

Role of Witness Intermediaries

According to the Minister's second reading speech, "witness intermediaries" will be neutral officers of the court who will support prosecution and defence lawyers to ensure that vulnerable witnesses are asked questions that they can understand. Their role is to make sure the vulnerable witnesses have access to the materials they need to express themselves in answering questions, and they will make sure that vulnerable witnesses have the time and space they need to communicate their best evidence.

Witness intermediaries are already being used successfully in the United Kingdom and New Zealand. In recent years in Australia, schemes have been introduced in New South Wales, Victoria, South Australia and the Australian Capital Territory. 

Bill Overview

The Bill amends the Evidence (Children and Special Witnesses) Act 2001 to:

  • Define the scope of the Pilot Intermediary Scheme to apply to:
    • all children under the age of 18 years participating in the criminal justice process who are victims or witnesses (other than a defendant) in sexual offence matters and/or matters under Chapter XVII of the Criminal Code Act 1924; and
    • adults with a communication need participating in the criminal justice process who are victims or witnesses (other than a defendant) in sexual offence matters and/or matters under Chapter XVII of the Criminal Code Act 1924.
  • Define "communication need" applicable to adult victims and witnesses;
  • Require the Secretary of the Department of Justice to establish and maintain a panel of persons who the Secretary considers are suitable to be witness intermediaries, the Intermediaries Panel;
  • Provide for the Secretary of the Department of Justice to allocate a person from the Intermediaries Panel to perform the relevant functions of a witness intermediary in respect of a witness;
  • Set out the functions of a witness intermediary, including providing an assessment report and providing recommendations during a specified proceeding to the judge, and any lawyer appearing in the proceeding as to adjustments to be made in the proceeding;
  • Require a person to take an oath or affirmation before acting as a witness intermediary in specified proceedings in a court;
  • Provide for the circumstances in which a judge is to make an order an assessment report be prepared.
  • Give a judge the power to make an order that a witness intermediary be used in respect of a witness in a specified proceeding, if having considered an assessment report, the judge is satisfied that the use of a witness intermediary will assist proceedings (a Witness Intermediary Order);
  • Give a prescribed witness the same rights as an ‘affected person’ and ‘affected child’ under the Act.
  • Provide that a judge must direct that a ground rules hearings be held for a prescribed witness in a specified proceeding and provides that a judge may make directions in a ground rules hearing;
  • Amend section 8A to prevent a defendant directly cross-examining a prescribed witness unless the cross-examination is undertaken by counsel;
  • Clarify that a judge may make an order under section 8A(3) directing that an unrepresented defendant be given assistance under the Legal Aid Commission Act 1990 for cross-examination only if it’s in the interests of justice to do so;
  • Require the Legal Aid Commission to provide legal aid for the purpose of cross-examining the witness or person, without applying the income, assets or other  merits test.

Other Legislation Amended

The Bill amends the Criminal Code Act 1924 by extending the definition of "affected person" to include "a prescribed witness" within the meaning of the Evidence (Children and Special Witnesses) Act 2001.

The Bill makes a consequential amendment to the Legal Aid Commission Act 1990 to clarify the operation of section 8A of the Evidence (Children and Special Witnesses) Act 2001 with respect to legal aid funding.

Comments by the Minister

In the second reading speech the Minister indicated that the Bill fulfills the Tasmanian Government’s commitment to establish a Pilot Intermediary Scheme in response to the recommendations of the "Royal Commission into Institutional Responses to Child Sexual Abuse in its Criminal Justice Report"; and the work of the Tasmania Law Reform Institute (TLRI) in its 2018 report, Facilitating Equal Access to Justice: An Intermediary/Communication Scheme for Tasmania.

"This Bill will build on our previous reforms as a result of the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse, and further strengthen Tasmania’s criminal justice system by introducing skilled communications experts who will work alongside lawyers and judges to ensure that vulnerable witnesses participating in the criminal justice process are able to communicate to the best of their ability."

According to the Minister's second reading speech, the Tasmania’s Pilot Intermediary Scheme is intended to commence in March 2021, coinciding with the commencement of the legal year.  It will operate for three years before undergoing a thorough evaluation to ensure its effective operation and a review of its scope.

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