Evidence (Records and Documents) Amendment Bill

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. G.E. GAGO (Minister for Employment, Higher Education and Skills, Minister for Science and Information Economy, Minister for the Status of Women, Minister for Business Services and Consumers) (17:29): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

The Evidence (Records and Documents) Amendment Bill 2015 amends the Evidence Act 1929 to reflect modern technological modes of communication and generation of material. The current law in South Australia has not been amended with the advent of the modern electronic age. The provisions in the Evidence Act 1929 to facilitate the proof and admission of computer-generated evidence are archaic and not utilised in practice. Further, there are no provisions directed toward the proof and admission of electronic communications. In practice, it appears that the courts and litigants improvise and work around the current law. It is unsatisfactory that such a significant aspect of modern practice should be the subject of such outdated laws. There is a real need for a workable and effective framework for this type of evidence to be received and used in court proceedings.

In 2012, the South Australian Law Reform Institute reviewed the way South Australian evidence law deals with new technologies. The South Australian Law Reform Institute released a report entitled Modernisation of South Australian evidence law to deal with new technologies, which included a number of recommendations for reforms to the Evidence Act 1929. In particular, the South Australian Law Reform Institute recommended that the Evidence Act 1929 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 includes a number amendments to the Evidence Act 1929 to implement the recommendations of the South Australian Law Reform Institute. The amendments aim for consistency with the Uniform Evidence Act models. The Bill:

1 Repeals Part 6 and Part 6A of the Evidence Act 1929 that deal with the admission into evidence of lettergrams and telegrams and a narrow class of information produced by computer.

2 Includes a new provision in Part 4 of the Evidence Act 1929 that provides for the proof and admissibility of evidence of electronic communications (for example, text messages, emails and social media postings).

3 Includes a new provision in Part 4 of the Evidence Act 1929 to simplify the rules applying to the admissibility of evidence of telegraphic messages.

4 Includes a new provision in Part 4 of the Evidence Act 1929 to facilitate proof of evidence that is produced by processes, machines or other devices and is intended, among other things, to facilitate the admission of computer-generated evidence.

5 Amends Part 4 of the Evidence Act 1929 to redefine 'document' to default to the definition in the Acts Interpretation Act 1915 which includes all records made by any process whereby information is stored and can be retrieved.

6 Amends the modification of the best evidence rule in Part 4 of the Evidence Act 1929 to facilitate the admissibility of documents that are reproduced in a format different to the original evidence (for example, where words or images are reproduced by a device into a hard copy format from electronically stored data, such as computer coding).

As a starting point, the Bill redefines 'document' to default to the definition in the Acts Interpretation Act 1915 which includes all records made by any process whereby information is stored and can be retrieved. It is a wide definition that extends to sophisticated modes of storage of electronic information as well as the recording of electronic and digital communications. The definition of 'business record' in the Bill includes any 'document prepared or used in the ordinary course of a business for the purpose of recording any matter relating to the business', and thus, by extension, incorporates the wide definition of document in the Acts Interpretation Act 1915. The Bill import sections 45A and 45B of the Evidence Act 1929 in their entirety in sections 52 and 53; however, the new sections will have a broader application with the extended definition of 'document'.

Computer-Generated Evidence

The Bill repeals Part 6A of the Evidence Act 1929 that deals with the admission into evidence of a narrow class of information generated by computer. Part 6A is seldom used to admit evidence of computer output because its requirements are unduly exacting and it is an aid to proof only. The relevance of Part 6A has been questioned given the rapid changes in the way that computers and their output can be used and communicated. For example, since the introduction of Part 6A, developments have included the Internet, mobile phones, social networking, surveillance and encryption technologies and cloud computing. Further, Part 6A cannot be used to regulate the admission of evidence of information produced or communicated by the Internet and modern electronic devices or digital processes.

The Bill includes new provisions to be inserted in Part 4 of the Evidence Act 1929 to facilitate proof of evidence that is produced by processes, machines or other devices and is intended to facilitate the admission of computer-generated evidence. The provisions aim for consistency with the relevant provisions in the Uniform Evidence Act models.

The Bill inserts section 56 into the Evidence Act 1929 to create a rebuttable presumption of accuracy for evidence produced by computers. Section 56 is consistent with section 146 of the Uniform Evidence Act models. It removes the requirement for authentication in every case and provides, instead, that for documents that are produced, recorded, copied or stored electronically or digitally, there is a rebuttable presumption that the technological process or device so used did in fact produce the asserted output and did so reliably. This means that a party adducing evidence of such documents would no longer have to prove the authenticity and reliability of the process or device unless there is evidence that is adduced to displace the presumption. For example, it would not be necessary to prove the reliability or accuracy of a computer from which an email had been produced as a pre-condition to the admission of that email into evidence. This amendment reflects contemporary understanding of the accuracy of ordinarily reliable devices or processes. The section does not operate to facilitate the admission of a document generated by a process or device as to the truth of its content—rather, it is presumptive aid to proof as to the accuracy and reliability of the production of the document by the technological process or device.

The Bill inserts section 57 into the Evidence Act 1929 to replace current section 45C which modifies the common law best evidence rule. Section 57 operates to facilitate the admissibility of any document that is reproduced in a format different to the original evidence, as well as those that are reproduced in the same manner. The section provides for the admissibility of documents that have been reproduced by instantaneous process (like a photocopier or scanning device), as well as by a process where the content of a document has been recorded and stored on a storage device and reproduced in the same or different form, or in any other way. 'Data storage device' is defined by the Acts Interpretation Act 1915 to mean any article or material from which information is capable of being reproduced with or without the aid of any other article or device. This definition is intended to include local storage items, such as hard drives and flash drives, as well as remote storage. It is not intended to include items such as filing cabinets, books and newspapers. Some examples of documents that could be admissible under this section as a reproduction of the original evidence could include:

a recording of words on a device that is produced as sound is reproduced as a document that is a transcript of the words (such as a recording of a conversation on an electronic recording device); and

images or words that are reproduced by a device into a hard-copy format from electronically stored data, such as computer coding (for example, data from social media sites like Facebook or Instagram could be tendered to the court by printing from a computer or tablet a screen shot of a relevant message or post in a hard-copy form, rather than producing the document through the use of a computer or tablet, or through a storage device that contains the computer coding for the message or post).

The amendments made by section 57 of the Bill will facilitate the admissibility in court proceedings of copies of documents in their original form, as well as the proof of a wide variety of documents that are reproduced in a different form than their original. The amendments have regard to modern technologies and the variety of ways that data can be produced through digital processes and modern electronic devices. The section is confined to the form of admissible evidence, and does not extend to make admissible the contents of a document to prove the truth of the representations it contains.

Evidence of Electronic Communications

At present, the Evidence Act 1929 only deals with telegraphic messages. It does not refer to electronic communications. Given the widespread availability and use of electronic communications, the South Australian Law Reform Institute saw a need for amendments to the Evidence Act 1929 to include presumptive aids for the proof and admissibility of evidence of electronic communications.

The Bill amends the Evidence Act 1929 to insert a new section 54 in Part 4 to provide for the proof and admissibility of evidence of 'electronic communications' (for example, short message service, multimedia messaging service, emails and social media postings and messages). 'Electronic communications' is defined as having the same meaning as the in the Electronic Transactions Act 2000, namely:

(a) a communication of information in the form of data, texts or images by means of guided or unguided electromagnetic energy, or both; or

(b) a communication of information in the form of sound by means of guided or unguided electromagnetic energy, or both, where the sound is processed at its destination by an automated voice recognition system.

The definition is to be read with the definition of 'information', which means information in the form of data, text, images or sound.

The definition of 'electronic communication' is not device-specific or method-specific, and is intended to be broad enough to embrace all modern technologies and capture future technologies. It encompasses computer or phone communications whether made via wireless connections or by wire or cable. Email communications, communications via the Internet such as social networking, communications between mobile phones such as SMS and MMS, are all captured via the definition of electronic communications. Conversations between two people over the telephone do not fall within the definition.

The definition of 'electronic communication' under the Bill is consistent with the definition for 'electronic communications' in the Electronic Transactions Act 1999 (Cth) which similarly defines the term for the purposes of the Uniform Evidence Act models. The terms 'electronic communication', 'communication' and 'information' are intended to be interpreted broadly. The terms are intended to have the same interpretation and operation as the Commonwealth legislation, which has been explained as follows in the Explanatory Memorandum to the Electronic Transactions Act1999 (Cth):

'Electronic communication' is defined as a communication of information by means of guided and/or unguided electromagnetic energy. This term is used throughout the Bill…and is intended to have the widest possible meaning. Communications by means of guided electromagnetic energy is intended to include the use of cables and wires, for example optic fibre cables and telephone lines. Communications by means of unguided electromagnetic energy is intended to include the use of radio waves, visible light, microwaves, infrared signals and other energy in the electromagnetic spectrum. The use of the term 'unguided' is not intended to refer to the broadcasting of information, but instead means that the electronic magnetic energy is not restricted to a physical conduit, such as a cable or wire. The term 'communication' should also be interpreted broadly. Information that is recorded, stored or retained in an electronic form but is not transmitted immediately after being created is intended to fall within the scope of an 'electronic communication'.

This definition should be read in conjunction with the definition of 'information', which is defined to mean data, text, images or speech. However, as a limitation is applied on the use of speech the definition of electronic communication is in two parts. Paragraph (a) states that, in relation to information in the form of data, text or images, the information can be communicated by means of guided and/or unguided electromagnetic energy. Paragraph (b) provides that information in the form of speech must be communicated by means of guided and/or unguided electromagnetic energy and must be processed at its destination by an automated voice recognition system. This is intended to allow information in the form of speech to be included in the scope of the Bill only where the information is provided by a person in a form that is analogous to writing. 'Automated voice recognition system' is intended to include information systems that capture information provided by voice in a way that enables it to be recorded or reproduced in written form, whether by demonstrating that the operation of computer program occurred as a result of a person's voice activation of that program or in any other way. This provision is intended to maintain the existing distinction commonly made between oral communications and written communications. The intention is to prevent an electronic communication in the form of speech from satisfying a legal requirement for writing or production of information. For example, it is not intended to have the effect that a writing requirement can be satisfied by a mere telephone call, message left on an answering machine or message left on voicemail.

'Information' is defined to mean information that is in the form of data, text, images or speech. These terms should be interpreted broadly. These terms are not intended to be mutually exclusive and it is possible that information may be in more than one form. For example, information may be in the form of text in a paper document but is then transferred in to the form of data in an electronic document. The term 'information' is used in the definition of electronic communication and is also used throughout the Bill.

Section 54 is modelled on sections 71 and 161 of the Uniform Evidence Act models. It facilitates the proof of electronic communications (other than lettergrams or telegrams) by creating a rebuttable presumption that their sending and making, the identity of their sender or maker, when and where they were sent from or made, and when and where they were received, is as it appears from the document. It is not restricted to electronic communications sent within Australia. The section further provides an exception to the hearsay rule for electronic communications so that the rule may not apply to what is represented in a document recording the electronic communication if this concerns the identity of the person from whom or on whose behalf the communication was sent, or the date on which or the time at which the communication was sent, or the destination of the communication or the identity of the person to whom the communication was addressed.

Section 54 thus achieves the following purposes:

1. providing a presumptive aid to proof for an electronic communication as to the accuracy of what appears from the face of the communication to be its sending and making, the identity of the sender or maker, when and where it were sent from or made, and when and where it was received; and

2. providing for the admissibility of an electronic communication in proceedings 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 identity of the person to whom it was addressed, the date on which or the time at which the communication was sent, and the destination of the communication.

This section creates a framework for the efficient proof and admissibility of electronic communications while still maintaining a discretion for the evidence to be excluded if, for example, its reliability is contested.

In addition, the Bill repeals Part 6 of the Evidence Act 1929 that deals with the admission into evidence of telegraphic messages. The South Australian Law Reform Institute noted that there are no South Australian cases which have considered or applied Part 6. The South Australian Law Reform Institute recommended that, although there has been no public telegraphy service in Australia since 1993, the Evidence Act 1929 should continue to provide a way to facilitate proof of the transmission of telegraphic messages. Although Part 6 describes an outdated telegraphic technology, and is drafted in an outmoded legislative style, it is possible that a party may need to prove the transmission of a telegraphic message that was once sent through historical telegraphic services.

Accordingly, the Bill includes a new section 55 in Part 4 of the Evidence Act 1929 to simplify the rules applying to the admissibility of evidence of telegraphic messages. Again, this section is consistent with the Uniform Evidence Act models. The section facilitates the proof of communications by lettergrams or telegrams by creating a rebuttable presumption of receipt by the addressee within 24 hours of the delivery of the communication to a post office for transmission as a lettergram or telegram. It is not restricted to lettergrams or telegrams sent within Australia. The section provides a simple and effective mode of proving the sending and receiving of a lettergram or telegram without requiring a party to produce records of receipt and fee payments from Australia Post that pre-date 1993 as is currently the case.

The current law in South Australia governing the proof and admissibility of computer-generated evidence and evidence of electronic communications is outdated and ineffective and in need of change. The amendments made by this Bill to the Evidence Act 1929 will contribute to the efficient conduct of litigation in South Australia by facilitating the proof and admissibility of electronic communications and computer-generated evidence that is consistent with contemporary views of its use, accuracy and reliability. The Bill in no way derogates from the common law powers of a court to decline to admit evidence where such admission would be unfair or prejudicial to a party, thus retaining a safeguard for the admission of evidence where there is a dispute about its authentication or reliability.

This Bill will provide South Australia with a workable and effective framework for the use in court proceedings of this type of evidence and will bring South Australia in line with the law in other jurisdictions.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Evidence Act 1929

4—Substitution of heading to Part 4

5—Insertion of heading to Division 1

6—Insertion of heading to Division 2

7—Insertion of heading to Division 3

These clauses are consequential and insert Part and Division headings to reflect the proposed structural changes made by this Act relating to the admission of documents and other records.

8—Repeal of sections 45A to 45C

This clause repeals sections 45A to 45C.

9—Substitution of heading to Part 5

This clause is consequential and replaces the Part 5 heading with a divisional heading to reflect the proposed structural changes made by this Act relating to the admission of documents and other records.

10—Amendment of section 46—Definitions

This amendment is consequential.

11—Insertion of Part 4 Divisions 5 to 7

This clause inserts new Division 5—other documents and records.

Division 5—Other documents and records

52—Admission of certain documents in evidence

Proposed section 52 substantially re-enacts current section 45B of the principal Act. References to the term document in the provision are proposed to adopt the broader meaning of the term set out in the Acts Interpretation Act 1915.

53—Admission of business records in evidence

Proposed section 53 substantially re-enacts current section 45A of the principal Act.

Division 6—Matters relating to communications

54—Electronic communications

Proposed section 54 creates an exception to the hearsay rule for the admission of electronic communications. The exception to the hearsay rule is limited to the admission of evidence as to the identity of the person who has sent the electronic communication, the date on which the communication was sent or the time at which the communication was sent and its destination or the identity of the person to whom the communication was addressed.

55—Telegrams and lettergrams

Proposed section 55 creates an exception to the hearsay rule for the admission of a document purporting to contain a record of a message by lettergram or telegram. The exception to the hearsay rule extends to creating a presumption that the message was received by the person to whom it was addressed no later than 24 hours after it was delivered to a post office for transmission.

Division 7—Miscellaneous

56—Evidence produced by processes, machines and other devices

Proposed section 56 provides an exception to the hearsay rule for the admission of evidence produced by a device or process. The provision creates a presumption that the document or thing was produced by the device or process.

57—Modification of best evidence rule

Proposed section 57 modifies the best evidence rule in relation to the reproduction by one document of the contents of another document by certain processes.

12—Repeal of Part 6 and Part 6A

This clause repeals Part 6 and Part 6A of the principal Act.

Debate adjourned on motion of Hon. J.S. Lee.

At 17:29 the council adjourned until Wednesday 28 October 2015 at 14:15.