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South Australia plans digital evidence review

Laws mentioning “telegram and telegraph” may not cover Internet adequately

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Law reform advocates in South Australia are leading a push to have the rules of evidence reviewed to take new computer and communications technology into account.

Showing just how persistent out-of-date laws can become, the South Australian Law Reform Institute (SALRI) says it’s probably time to get rid of evidence rules relating to “communications by telegram and telegraph,” according to University of Adelaide Dean of Law, professor John Williams.

He says courts also need to “facilitate the proof of electronic and digital communications and ways in which records of these communications can be used in court proceedings”.

The SALRI issues paper (here) notes that it’s not only the reliability or admissibility of evidence that’s at stake: rules of evidence also exist to safeguard freedoms.

Although the issued look like legal hair-splitting, the way in which the state’s rules of evidence are modernized would have important implications for how computer and communications evidence is handled in the courts.

For example, if South Australia were to modernize its evidence laws covering proof of transmission of a communication over the Internet, can it do so in a way that’s consistent with the technology, and should the new rules apply to both criminal and civil law?

The issues paper is available from the University of Adelaide, here, with submissions due by 20 July 2012. ®

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