3.1 There are several matters dealt with in the Evidence Ordinance 1971 (ACT) which the ALRC did not consider in its Report because they were considered to be outside its terms of reference. As implementation of the ALRC draft bill in this State will not import the provisions of that Ordinance into the law of New South Wales, there may be gaps in the law of New South Wales which will not exist in the ACT.

3.2 The relevant provisions of the ACT Ordinance are: s83 Prohibition of publication of evidence s85 Publication of disallowed questions s88 Impounding documents.

3.3 The prohibition of publication of evidence, s83, and the publication of disallowed questions, s85 are dealt with to a certain extent in this State by s578 of the Crimes Act 1900. That section provides that the judge presiding at the trial of a sexual offence or an offence of abduction may forbid the publication of evidence “or any report or account of that evidence either as to the whole or portions thereof”. The provisions of the ACT Ordinance have much wider application. In the first place, they are not restricted to trials of criminal matters, let alone to trials of sexual and abduction matters. They are also more explicit in the powers they grant to the court . Section 578 of the Crimes Act allows the court to “forbid publication of the evidence ‘given at the trial’ or any report or account of that evidence either as to the whole or portions thereof”, but the section gives no guidance as to the circumstances in which the power should be used. In contrast s83 of the ACT Evidence Ordinance provides that the power to forbid publication arises only where “it appears to a court” that the publication “ i s likely to prejudice the administration of justice”. The section also expressly allows the court to withhold the name of a party or witness if it is in the interests of the administration of justice to do so. Unlike s 578, s83 of the Evidence Ordinance also allows the court to forbid publication of evidence which is “intended to be given” and can direct that the name of an “intended witness” be withheld from publication also. In making the order under s 83, the court is also given power to require some people to “remain outside the courtroom for such period” as it specifies.

3.4 The penalties for non-compliance with an order under s83 of the Ordinance are a fine or imprisonment, or both.¹

3.5 There is also no equivalent of that ACT Evidence Ordinance in the statutory law of this State of s88. That provision provides:

Where a document has been tendered or produced before a court, the court may, whether or not the document is admitted in evidence, direct that the document shall be impounded and kept in the custody of an officer of the court or of another person for such period and subject to such conditions as the court thinks fit.

3.6 The Commission makes no recommendation on these matters, but draws the possible gaps in New South Wales’ law to attention for consideration following implementation of the ALRC bill.

1. Evidence Ordinance 1971 (ACT) s84.