A committee inquiring into laws to allow recorded evidence from a courtroom to be used in the ACT in retrials has recommended the bill pass the Legislative Assembly.
Attorney-General Shane Rattenbury introduced the proposed changes to the territory's parliament last month after concerns had been raised by the Director of Public Prosecutions Shane Drumgold SC.
Under current ACT laws, complainants in sexual violence and family violence matters can give their evidence from a remote witness room. This evidence is recorded and can be used again in the event of a retrial.
However, a complainant can choose to give their evidence in-person in the courtroom but if this is recorded it cannot be used again in the event of a retrial.
The proposed changes to the laws attracted attention as it had the potential to affect the retrial of Bruce Lehrmann who was accused of raping Brittany Higgins.
The rape charge levelled at Mr Lehrmann was dropped earlier this month because of concerns about the impact on Ms Higgins' mental health.
Mr Lehrmann denies raping Ms Higgins at Parliament House when the pair were federal Liberal Party staffers in March 2019.
The proposed changes to the Evidence Act were prompted following a letter by the Director of Public Prosecutions Shane Drumgold to Mr Rattenbury on October 31, saying the anomaly required an "urgent amendment".
The letter was sent just three days after Mr Lehrmann's trial was aborted, following the declaration of a mistrial brought about by the misconduct of a juror.
However, The Canberra Times understands Mr Drumgold was not aware Ms Higgins' evidence was recorded until November 16. The issue had also been raised in three other cases.
A board of inquiry into the handling of the case was announced by Chief Minister Andrew Barr this week following a series of explosive complaints by the Director of Public Prosecutions and ACT Policing.
Following this announcement, Opposition Leader Elizabeth Lee said the inquiry needed to look at allegations of political interference and specifically raised concerns about Mr Rattenbury introducing the laws ahead of Mr Lehrmann's retrial, prior to the case being discontinued.
Ms Lee fought to have the inquiry into the changes to the Evidence Act report back in March next year, but the Assembly rejected this.
However, the standing committee on justice and community safety recommended the bill should pass in a report that was released on Friday.
The report noted many submissions had raised concerns about a "limited consultation process".
One of the issues raised in the report was around the need for consent to film a witness giving evidence. The bill had proposed evidence could only be filmed if a witness had consented.
In a submission to the inquiry, Mr Drumgold said requiring consent created a "significant risk of error". He said it was concerning as a complainant may change their position over time and if they chose not to be recorded they faced the possibility of being retraumatised.
"The timing of the consent is unclear, specifically whether the actual recording must be consented to, or whether the playing must be consented to," he said.
"For example, a psychologically traumatised complainant may not wish for their evidence to be recorded due to the emotional trauma of the event, or a lack of appreciation of the prospects of a discharged jury or successful appeal at a first trial, but if the matter is overturned on appeal or a jury is discharged, the complainant may subsequently change their mind and wish for it to be played instead of giving evidence afresh."
But this provision was supported by the ACT Law Society, who said this was imperative.
"We consider it imperative that express, clear consent is given by the witness before their evidence can be recorded, given the possibility that the recording will be the mode through which their evidence is presented at a later proceeding," the society's submission said.
The committee recommended the government examine an "opt out" approach.
