First review of the Evidence Act 2006

Section 202(1) of the Evidence Act 2006 required the Commission to report to the Minister of Justice on the following matters:

• the operation of the provisions of the Act since its commencement
• whether those provisions should be retained or repealed, and
• if they should be retained, whether any amendments to the Act are necessary or desirable.

This was not intended to be a first principles review, but rather was an operational review, focusing on whether the Act is working as intended and what, if anything, should be done to address any problems or improve its operation.

A clear message was received in consultation that the Act is generally working well and there is widespread acceptance of the value of codification of the law in this area. The Report recommended a relatively small number of amendments. These were largely minor, “fine tuning” matters that will improve the performance of the Act or put beyond doubt matters that may be open to question. There was only one recommendation that can properly be described as substantive and that related to the provision in the Act that governs the admissibility of previous consistent statements made by witnesses. The interpretation and application of this provision has proven difficult. The Commission recommended repealing the provision in question and leaving the admissibility of such statements to be determined under the more general rules governing admissibility of evidence.

The Commission’s Report, The 2013 Review of the Evidence Act 2006 (NZLC R127, 2013), was sent to the Minister of Justice on 26 February 2013. The Government accepted all the Commission’s recommendations, with modifications to two. The Evidence Amendment Bill was introduced in May 2015 and received Royal Assent on 22 September 2016.

The 2013 Review of the Evidence Act 2006 (NZLC R127, 2013)

The Commission's Report, The 2013 Review of the Evidence Act 2006 (NZLC R127, 2013) considers the operation of the provisions of the Act and whether repeal or amendment of any of them is necessary or desirable. In particular, it focuses on those provisions that were identified by the Commission or others as giving rise to issues of interpretation or application during the first five years of the Act’s operation.

The Commission considers that generally the Act is working very well and is a significant improvement from the previous law, which was found in court decisions and, as such, could be difficult to access or to determine at any point in time. There are a relatively small number of recommendations of a minor nature that the Commission considers would improve the Act’s operation, and just one significant recommendation for change. That recommendation relates to the admissibility of previous consistent statements made by witnesses. The interpretation and application of this provision has proven difficult. The Commission recommends repealing the provision in question and leaving the admissibility of such statements to be determined under the more general rules governing admissibility of evidence. As the Act has only been in force for five years and some of the provisions have not been considered or have arisen infrequently at appellate level, the Commission has taken a cautious approach to recommending change. For this reason there are a number of areas where it has recommended that further monitoring be undertaken before any conclusions about whether change is required are drawn. 

The Government accepted all the Commission’s recommendations, with modifications to two. The Evidence Amendment Act 2016 implemented these.

There is no requirement for the Government to present a formal response to a Commission report where it has accepted the Commission’s recommendations. (See Official Government response process | Department of the Prime Minister and Cabinet (DPMC).)