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This is a Bill, not an Act. For current law, see the Acts databases.


EVIDENCE AMENDMENT BILL 2008

2008
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Evidence Amendment Bill 2008
No. , 2008
(Attorney-General)
A Bill for an Act to amend the law relating to
evidence, and for other purposes
i Evidence Amendment Bill 2008 No. , 2008
Contents
1
Short title ............................................................................................ 1
2
Commencement .................................................................................. 1
3
Schedule(s) ......................................................................................... 2
Schedule 1--Uniform evidence amendments
3
Part 1--Amendments
3
Evidence Act 1995
3
Part 2--Transitional provisions
34
Schedule 2--Other evidence amendme nts
36
Evidence Act 1995
36
Schedule 3--Printed and electronic publication of Acts
38
Part 1--Main amendments
38
Amendments Incorporation Act 1905
38
Part 2--Consequential amendments
42
Acts Interpretation Act 1901
42
Carriage of Goods by Sea Act 1991
42
Legislative Instruments Act 2003
42
Workplace Relations Act 1996
43
Evidence Amendment Bill 2008 No. , 2008 1
A Bill for an Act to amend the law relating to
1
evidence, and for other purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act may be cited as the Evidence Amendment Act 2008.
5
2 Commence ment
6
(1) Each provision of this Act specified in column 1 of the table
7
commences, or is taken to have commenced, in accordance with
8
column 2 of the table. Any other statement in column 2 has effect
9
according to its terms.
10
11
2 Evidence Amendment Bill 2008 No. , 2008
Commencement information
Column 1
Column 2
Column 3
Provision(s)
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day on which this Act receives the
Royal Assent.
2. Schedules 1
and 2
The 28th day after the day on which this Act
receives the Royal Assent.
3. Schedule 3
A single day to be fixed by Proclamation.
However, if any of the provision(s) do not
commence with in the period of 12 months
beginning on the day on which this Act
receives the Royal Assent, they commence
on the first day after the end of that period.
Note:
This table relates only to the provisions of this Act as originally
1
passed by both Houses of the Parliament and assented to. It will not be
2
expanded to deal with provisions inserted in this Act after assent.
3
(2) Column 3 of the table contains additional information that is not
4
part of this Act. Information in this column may be added to or
5
edited in any published version of this Act.
6
3 Schedule(s)
7
Each Act that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
12
Unifo rm ev idence amend ments Schedule 1
Amend ments Part 1
Evidence Amendment Bill 2008 No. , 2008 3
1
Schedule 1
--
Uniform evidence amendments
2
Part 1
--
Amendments
3
Evidence Act 1995
4
1 Subsection 4(1)
5
Omit "in relation".
6
2 At the end of subsection 4(1)
7
Add:
8
Note 4:
See section 79 of the Judiciary Act 1903 for the application of this Act
9
to proceedings in a State court exercising federal jurisdiction.
10
3 Section 13
11
Repeal the section, substitute:
12
13 Competence: lack of capacity
13
(1) A person is not competent to give evidence about a fact if, for any
14
reason (including a mental, intellectual or physical disability):
15
(a) the person does not have the capacity to understand a
16
question about the fact; or
17
(b) the person does not have the capacity to give an answer that
18
can be understood to a question about the fact;
19
and that incapacity cannot be overcome.
20
Note:
See sections 30 and 31 for examples of assistance that may be
21
provided to enable witnesses to overcome disabilities.
22
(2) A person who, because of subsection (1), is not competent to give
23
evidence about a fact may be competent to give evidence about
24
other facts.
25
(3) A person who is competent to give evidence about a fact is not
26
competent to give sworn evidence about the fact if the person does
27
not have the capacity to understand that, in giving evidence, he or
28
she is under an obligation to give truthful evidence.
29
Schedule 1 Un iform evidence amend ments
Part 1 A mend ments
4 Evidence Amendment Bill 2008 No. , 2008
(4) A person who is not competent to give sworn evidence about a fact
1
may, subject to subsection (5), be competent to give unsworn
2
evidence about the fact.
3
(5) A person who, because of subsection (3), is not competent to give
4
sworn evidence is competent to give unsworn evidence if the court
5
has told the person:
6
(a) that it is important to tell the truth; and
7
(b) that he or she may be asked questions that he or she does not
8
know, or cannot remember, the answer to, and that he or she
9
should tell the court if this occurs; and
10
(c) that he or she may be asked questions that suggest certain
11
statements are true or untrue and that he or she should agree
12
with the statements that he or she believes are true and should
13
feel no pressure to agree with statements that he or she
14
believes are untrue.
15
(6) It is presumed, unless the contrary is proved, that a person is not
16
incompetent because of this section.
17
(7) Evidence that has been given by a witness does not become
18
inadmissible merely because, before the witness finishes giving
19
evidence, he or she dies or ceases to be competent to give
20
evidence.
21
(8) For the purpose of determining a question arising under this
22
section, the court may inform itself as it thinks fit, including by
23
obtaining information from a person who has relevant specialised
24
knowledge based on the person's training, study or experience.
25
4 Paragraph 14(a)
26
Omit "be capable of hearing or understanding, or of communicating
27
replies to, questions on that matter", substitute "have the capacity to
28
understand a question about the matter or to give an answer that can be
29
understood to a question about the matter".
30
5 Subsection 18(2)
31
Omit "de facto spouse", substitute "de facto partner".
32
6 Paragraph 20(3)(a)
33
Omit "de facto spouse", substitute "de facto partner".
34
Unifo rm ev idence amend ments Schedule 1
Amend ments Part 1
Evidence Amendment Bill 2008 No. , 2008 5
7 Subsection 20(4)
1
Omit "de facto spouse" (first occurring), substitute "de facto partner".
2
8 Paragraphs 20(4)(b) and 20(5)(b)
3
Omit "de facto spouse", substitute "de facto partner".
4
9 Subsection 21(2)
5
Omit "subsection 13(2)", substitute "section 13".
6
10 Subsection 29(2)
7
Repeal the subsection, substitute:
8
(2) A court may, on its own motion or on the application of the party
9
that called the witness, direct that the witness give evidence wholly
10
or partly in narrative form.
11
11 Paragraph 33(2)(c)
12
Omit "lawyer", substitute "Australian legal practitioner or legal
13
counsel".
14
12 Paragraph 37(1)(c)
15
Omit "a lawyer", substitute "an Australian legal practitioner, legal
16
counsel or prosecutor".
17
13 Section 41
18
Repeal the section, substitute:
19
41 Imprope r questions
20
(1) The court must disallow a question put to a witness in
21
cross-examination, or inform the witness that it need not be
22
answered, if the court is of the opinion that the question (referred
23
to as a disallowable question):
24
(a) is misleading or confusing; or
25
(b) is unduly annoying, harassing, intimidating, offensive,
26
oppressive, humiliating or repetitive; or
27
(c) is put to the witness in a manner or tone that is belittling,
28
insulting or otherwise inappropriate; or
29
Schedule 1 Un iform evidence amend ments
Part 1 A mend ments
6 Evidence Amendment Bill 2008 No. , 2008
(d) has no basis other than a stereotype (for example, a
1
stereotype based on the witness's sex, race, culture, ethnicity,
2
age or mental, intellectual or physical disability).
3
(2) Without limiting the matters the court may take into account for
4
the purposes of subsection (1), it is to take into account:
5
(a) any relevant condition or characteristic of the witness of
6
which the court is, or is made, aware, including age,
7
education, ethnic and cultural background, gender, language
8
background and skills, level of maturity and understanding
9
and personality; and
10
(b) any mental, intellectual or physical disability of which the
11
court is, or is made, aware and to which the witness is, or
12
appears to be, subject; and
13
(c) the context in which the question is put, including:
14
(i) the nature of the proceeding; and
15
(ii) in a criminal proceeding--the nature of the offence to
16
which the proceeding relates; and
17
(iii) the relationship (if any) between the witness and any
18
other party to the proceeding.
19
(3) A question is not a disallowable question merely because:
20
(a) the question challenges the truthfulness of the witness or the
21
consistency or accuracy of any statement made by the
22
witness; or
23
(b) the question requires the witness to discuss a subject that
24
could be considered distasteful to, or private by, the witness.
25
(4) A party may object to a question put to a witness on the ground
26
that it is a disallowable question.
27
(5) However, the duty imposed on the court by this section applies
28
whether or not an objection is raised to a particular question.
29
(6) A failure by the court to disallow a question under this section, or
30
to inform the witness that it need not be answered, does not affect
31
the admissibility in evidence of any answer given by the witness in
32
response to the question.
33
Note:
A person must not, without the express permission of a court, print or
34
publish any question that the court has disallowed under this section:
35
see section 195.
36
Unifo rm ev idence amend ments Schedule 1
Amend ments Part 1
Evidence Amendment Bill 2008 No. , 2008 7
14 Subsection 50(1)
1
Repeal the subsection, substitute:
2
(1) The court may, on the application of a party, direct that the party
3
may adduce evidence of the contents of 2 or more documents in
4
question in the form of a summary if the court is satisfied that it
5
would not otherwise be possible conveniently to examine the
6
evidence because of the volume or complexity of the documents in
7
question.
8
15 Chapter 3 (Introductory note)
9
Omit "Part 3.11 gives courts discretions to exclude evidence even it",
10
substitute "Part 3.11 provides for the discretionary and mandatory
11
exclusion of evidence even if".
12
16 Chapter 3 (Introductory note, diagram)
13
Repeal the diagram, substitute:
14
Schedule 1 Un iform evidence amend ments
Part 1 A mend ments
8 Evidence Amendment Bill 2008 No. , 2008
Is the evidence relevant? (See Part 3.1.)
Does the hearsay rule apply? (See Part 3.2.
See also Part 3.4 on admissions and Part
3.8 on character evidence.)
Does the opinion rule apply? (See Part 3.3.
See also Part 3.4 on admissions and Part
3.8 on character evidence.)
Does the evidence contravene the rule
about evidence of judgments and
convictions? (See Part 3.5.)
Does the tendency rule or the coincidence
rule apply? (See Part 3.6. See also Part 3.8
on character evidence.)
Does the credibility rule apply? (See Part
3.7. See also Part 3.8 on character
evidence.)
Does the evidence contravene the rules
about identification evidence? (See Part
3.9.)
Does a privilege apply? (See Part 3.10.)
Should a discretion to exclude the
evidence be exercised or must it be
excluded? (See Part 3.11.)
THE EVIDENCE IS ADMISSIBLE
THE
EVIDENCE IS
NOT
ADMISSIBLE
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
No
No
No
No
No
No
No
No
No
1
Unifo rm ev idence amend ments Schedule 1
Amend ments Part 1
Evidence Amendment Bill 2008 No. , 2008 9
17 Subsection 59(1)
1
After "a fact that", insert "it can reasonably be supposed that".
2
18 After subsection 59(2)
3
Insert:
4
(2A) For the purposes of determining under subsection (1) whether it
5
can reasonably be supposed that the person intended to assert a
6
particular fact by the representation, the court may have regard to
7
the circumstances in which the representation was made.
8
Note:
Subsection (2A) was inserted as a response to the decision of the
9
Supreme Court of NSW in R. v Hannes (2000) 158 FLR 359.
10
19 Subsection 59(3) (note)
11
Omit:
12
business records (section 69);
13
tags and labels (section 70);
14
telecommunications (section 71);
15
contemporaneous statements about a person's health etc.
16
(section 72);
17
substitute:
18
contemporaneous statements about a person's health etc.
19
(section 66A);
20
business records (section 69);
21
tags and labels (section 70);
22
electronic communications (section 71);
23
Aboriginal and Torres Strait Islander traditional laws and
24
customs (section 72);
25
20 Section 60
26
Before "The hearsay rule", insert "(1)".
27
21 Section 60
28
Omit "the fact intended to be asserted by the representation", substitute
29
"an asserted fact".
30
22 At the end of section 60
31
Add:
32
(2) This section applies whether or not the person who made the
33
representation had personal knowledge of the asserted fact (within
34
the meaning of subsection 62(2)).
35
Schedule 1 Un iform evidence amend ments
Part 1 A mend ments
10 Evidence Amendment Bill 2008 No. , 2008
Note:
Subsection (2) was inserted as a response to the decision of the High
1
Court of Australia in Lee v The Queen (1998) 195 CLR 594.
2
(3) However, this section does not apply in a criminal proceeding to
3
evidence of an admission.
4
Note:
The admission might still be admissible under section 81 as an
5
exception to the hearsay rule if it is "first-hand" hearsay: see
6
section 82.
7
23 Subsection 61(1)
8
Repeal the subsection, substitute:
9
(1) This Part does not enable use of a previous representation to prove
10
the existence of an asserted fact if, when the representation was
11
made, the person who made it was not competent to give evidence
12
about the fact because of subsection 13(1).
13
24 Subsection 61(2) (note)
14
Omit "72", substitute "66A".
15
25 At the end of section 62
16
Add:
17
(3) For the purposes of section 66A, a person has personal knowledge
18
of the asserted fact if it is a fact about the person's health, feelings,
19
sensations, intention, knowledge or state of mind at the time the
20
representation referred to in that section was made.
21
Note:
The heading to section 62 is replaced by the heading "Restriction to "first-hand"
22
hearsay".
23
26 Paragraph 64(3)(b)
24
Omit "made;", substitute "made.".
25
27 Subsection 64(3)
26
Omit all the words from and including "if, when the representation".
27
28 Subsection 65(2)
28
Omit "was" (first occurring).
29
29 Paragraphs 65(2)(a), (b) and (c)
30
Before "made", insert "was".
31
Unifo rm ev idence amend ments Schedule 1
Amend ments Part 1
Evidence Amendment Bill 2008 No. , 2008 11
30 Paragraph 65(2)(d)
1
Repeal the paragraph, substitute:
2
(d) was:
3
(i) against the interests of the person who made it at the
4
time it was made; and
5
(ii) made in circumstances that make it likely that the
6
representation is reliable.
7
31 After subsection 66(2)
8
Insert:
9
(2A) In determining whether the occurrence of the asserted fact was
10
fresh in the memory of a person, the court may take into account
11
all matters that it considers are relevant to the question, including:
12
(a) the nature of the event concerned; and
13
(b) the age and health of the person; and
14
(c) the period of time between the occurrence of the asserted fact
15
and the making of the representation.
16
Note:
Subsection (2A) was inserted as a response to the decision of the High
17
Court of Australia in Graham v The Queen (1998) 195 CLR 606.
18
32 After section 66
19
Insert:
20
66A Exception: contemporaneous statements about a person's
21
health etc.
22
The hearsay rule does not apply to evidence of a previous
23
representation made by a person if the representation was a
24
contemporaneous representation about the person's health,
25
feelings, sensations, intention, knowledge or state of mind.
26
33 Section 71
27
Repeal the section, substitute:
28
71 Exception: electronic communications
29
The hearsay rule does not apply to a representation contained in a
30
document recording an electronic communication so far as the
31
representation is a representation as to:
32
Schedule 1 Un iform evidence amend ments
Part 1 A mend ments
12 Evidence Amendment Bill 2008 No. , 2008
(a) the identity of the person from whom or on whose behalf the
1
communication was sent; or
2
(b) the date on which or the time at which the communication
3
was sent; or
4
(c) the destination of the communication or the identity of the
5
person to whom the communication was addressed.
6
Note 1:
Division 3 of Part 4.3 contains presumptions about electronic
7
communications.
8
Note 2:
Section 182 gives this section a wider application in relation to
9
Commonwealth records.
10
Note 3:
Electronic communication is defined in the Dictionary.
11
34 Section 72
12
Repeal the section, substitute:
13
72 Exception: Aboriginal and Torres Strait Islander traditional laws
14
and customs
15
The hearsay rule does not apply to evidence of a representation
16
about the existence or non-existence, or the content, of the
17
traditional laws and customs of an Aboriginal or Torres Strait
18
Islander group.
19
35 Section 76 (note)
20
After:
21
lay opinion (section 78);
22
Insert:
23
Aboriginal and Torres Strait Islander traditional laws and
24
customs (section 78A);
25
36 After section 78
26
Insert:
27
78A Exception: Aboriginal and Torres Strait Islander traditional
28
laws and customs
29
The opinion rule does not apply to evidence of an opinion
30
expressed by a member of an Aboriginal or Torres Strait Islander
31
group about the existence or non-existence, or the content, of the
32
traditional laws and customs of the group.
33
Unifo rm ev idence amend ments Schedule 1
Amend ments Part 1
Evidence Amendment Bill 2008 No. , 2008 13
37 Section 79
1
Before "If a person", insert "(1)".
2
38 At the end of section 79
3
Add:
4
(2) To avoid doubt, and without limiting subsection (1):
5
(a) a reference in that subsection to specialised knowledge
6
includes a reference to specialised knowledge of child
7
development and child behaviour (including specialised
8
knowledge of the impact of sexual abuse on children and
9
their development and behaviour during and following the
10
abuse); and
11
(b) a reference in that subsection to an opinion of a person
12
includes, if the person has specialised knowledge of the kind
13
referred to in paragraph (a), a reference to an opinion relating
14
to either or both of the following:
15
(i) the development and behaviour of children generally;
16
(ii) the development and behaviour of children who have
17
been victims of sexual offences, or offences similar to
18
sexual offences.
19
39 At the end of section 82
20
Add:
21
Note:
Section 60 does not apply in a criminal proceeding to evidence of an
22
admission.
23
40 Subsection 85(1)
24
Repeal the subsection, substitute:
25
(1) This section applies only in a criminal proceeding and only to
26
evidence of an admission made by a defendant:
27
(a) to, or in the presence of, an investigating official who at that
28
time was performing functions in connection with the
29
investigation of the commission, or possible commission, of
30
an offence; or
31
(b) as a result of an act of another person who was, and who the
32
defendant knew or reasonably believed to be, capable of
33
influencing the decision whether a prosecution of the
34
defendant should be brought or should be continued.
35
Schedule 1 Un iform evidence amend ments
Part 1 A mend ments
14 Evidence Amendment Bill 2008 No. , 2008
Note:
Subsection (1) was inserted as a response to the decision of the High
1
Court of Australia in Kelly v The Queen (2004) 218 CLR 216.
2
41 Subsection 89(1)
3
Omit "in the course of official questioning", substitute "by an
4
investigating official who at that time was performing functions in
5
connection with the investigation of the commission, or possible
6
commission, of an offence".
7
42 Subsection 97(1)
8
Repeal the subsection, substitute:
9
(1) Evidence of the character, reputation or conduct of a person, or a
10
tendency that a person has or had, is not admissible to prove that a
11
person has or had a tendency (whether because of the person's
12
character or otherwise) to act in a particular way, or to have a
13
particular state of mind unless:
14
(a) the party seeking to adduce the evidence gave reasonable
15
notice in writing to each other party of the party's intention to
16
adduce the evidence; and
17
(b) the court thinks that the evidence will, either by itself or
18
having regard to other evidence adduced or to be adduced by
19
the party seeking to adduce the evidence, have significant
20
probative value.
21
43 Section 98
22
Repeal the section, substitute:
23
98 The coincidence rule
24
(1) Evidence that 2 or more events occurred is not admissible to prove
25
that a person did a particular act or had a particular state of mind
26
on the basis that, having regard to any similarities in the events or
27
the circumstances in which they occurred, or any similarities in
28
both the events and the circumstances in which they occurred, it is
29
improbable that the events occurred coincidentally unless:
30
(a) the party seeking to adduce the evidence gave reasonable
31
notice in writing to each other party of the party's intention to
32
adduce the evidence; and
33
(b) the court thinks that the evidence will, either by itself or
34
having regard to other evidence adduced or to be adduced by
35
Unifo rm ev idence amend ments Schedule 1
Amend ments Part 1
Evidence Amendment Bill 2008 No. , 2008 15
the party seeking to adduce the evidence, have significant
1
probative value.
2
Note:
One of the events referred to in subsection (1) may be an event the
3
occurrence of which is a fact in issue in the proceeding.
4
(2) Paragraph (1)(a) does not apply if:
5
(a) the evidence is adduced in accordance with any directions
6
made by the court under section 100; or
7
(b) the evidence is adduced to explain or contradict coincidence
8
evidence adduced by another party.
9
Note:
Other provisions of this Act, or of other laws, may operate as
10
exceptions to the coincidence rule.
11
44 Section 102
12
Repeal the section.
13
45 Before section 103
14
Insert:
15
Division 1--Credibility evidence
16
101A Credibility evidence
17
Credibility evidence, in relation to a witness or other person, is
18
evidence relevant to the credibility of the witness or person that:
19
(a) is relevant only because it affects the assessment of the
20
credibility of the witness or person; or
21
(b) is relevant:
22
(i) because it affects the assessment of the credibility of the
23
witness or person; and
24
(ii) for some other purpose for which it is not admissible, or
25
cannot be used, because of a provision of Parts 3.2 to
26
3.6.
27
Note 1:
Sections 60 and 77 will not affect the application of paragraph (b),
28
because they cannot apply to evidence that is yet to be admitted.
29
Note 2:
Section 101A was inserted as a response to the decision of the High
30
Court of Australia in Adam v The Queen (2001) 207 CLR 96.
31
Schedule 1 Un iform evidence amend ments
Part 1 A mend ments
16 Evidence Amendment Bill 2008 No. , 2008
Division 2--Credibility of witnesses
1
102 The credibility rule
2
Credibility evidence about a witness is not admissible.
3
Note 1:
Specific exceptions to the credibility rule are as follows:
4
evidence adduced in cross-examination (sections 103 and 104);
5
evidence in rebuttal of denials (section 106);
6
evidence to re-establish credibility (section 108);
7
evidence of persons with specialised knowledge (section 108C);
8
character of accused persons (section 110).
9
Other provisions of this Act, or of other laws, may operate as further
10
exceptions.
11
Note 2:
Sections 108A and 108B deal with the admission of credibility
12
evidence about a person who has made a previous representation but
13
who is not a witness.
14
46 Subsection 103(1)
15
Omit "has substantial probative value", substitute "could substantially
16
affect the assessment of the credibility of the witness".
17
47 Subsection 103(2)
18
Omit "in deciding whether the evidence has substantial probative
19
value", substitute "for the purposes of subsection (1)".
20
48 Subsection 104(1)
21
After "applies only", insert "to credibility evidence".
22
49 Subsection 104(2)
23
Omit "only because it is relevant to", substitute "to the assessment of".
24
50 Subsection 104(4)
25
Repeal the subsection, substitute:
26
(4) Leave must not be given for cross-examination by the prosecutor
27
under subsection (2) unless evidence adduced by the defendant has
28
been admitted that:
29
(a) tends to prove that a witness called by the prosecutor has a
30
tendency to be untruthful; and
31
(b) is relevant solely or mainly to the witness's credibility.
32
51 Subsection 104(5)
33
Unifo rm ev idence amend ments Schedule 1
Amend ments Part 1
Evidence Amendment Bill 2008 No. , 2008 17
Omit "paragraph (4)(b)", substitute "subsection (4)".
1
52 Section 106
2
Repeal the section, substitute:
3
106 Exception: rebutting denials by other evidence
4
(1) The credibility rule does not apply to evidence that is relevant to a
5
witness's credibility and that is adduced otherwise than from the
6
witness if:
7
(a) in cross-examination of the witness:
8
(i) the substance of the evidence was put to the witness;
9
and
10
(ii) the witness denied, or did not admit or agree to, the
11
substance of the evidence; and
12
(b) the court gives leave to adduce the evidence.
13
(2) Leave under paragraph (1)(b) is not required if the evidence tends
14
to prove that the witness:
15
(a) is biased or has a motive for being untruthful; or
16
(b) has been convicted of an offence, including an offence
17
against the law of a foreign country; or
18
(c) has made a prior inconsistent statement; or
19
(d) is, or was, unable to be aware of matters to which his or her
20
evidence relates; or
21
(e) has knowingly or recklessly made a false representation
22
while under an obligation, imposed by or under an Australian
23
law or a law of a foreign country, to tell the truth.
24
53 After section 108
25
Insert:
26
Division 3--Credibility of persons who are not witnesses
27
54 Subsection 108A(1)
28
Repeal the subsection, substitute:
29
(1) If:
30
(a) evidence of a previous representation has been admitted in a
31
proceeding; and
32
Schedule 1 Un iform evidence amend ments
Part 1 A mend ments
18 Evidence Amendment Bill 2008 No. , 2008
(b) the person who made the representation has not been called,
1
and will not be called, to give evidence in the proceeding;
2
credibility evidence about the person who made the representation
3
is not admissible unless the evidence could substantially affect the
4
assessment of the person's credibility.
5
55 Subsection 108A(2)
6
Omit "in deciding whether the evidence has substantial probative
7
value", substitute "for the purposes of subsection (1)".
8
56 After section 108A
9
Insert:
10
108B Further protections: previous representations of an accused
11
who is not a witness
12
(1) This section applies only in a criminal proceeding and so applies in
13
addition to section 108A.
14
(2) If the person referred to in that section is a defendant, the
15
credibility evidence is not admissible unless the court gives leave.
16
(3) Despite subsection (2), leave is not required if the evidence is
17
about whether the defendant:
18
(a) is biased or has a motive to be untruthful; or
19
(b) is, or was, unable to be aware of or recall matters to which
20
his or her previous representation relates; or
21
(c) has made a prior inconsistent statement.
22
(4) The prosecution must not be given leave under subsection (2)
23
unless evidence adduced by the defendant has been admitted that:
24
(a) tends to prove that a witness called by the prosecution has a
25
tendency to be untruthful; and
26
(b) is relevant solely or mainly to the witness's credibility.
27
(5) A reference in subsection (4) to evidence does not include a
28
reference to evidence of conduct in relation to:
29
(a) the events in relation to which the defendant is being
30
prosecuted; or
31
(b) the investigation of the offence for which the defendant is
32
being prosecuted.
33
Unifo rm ev idence amend ments Schedule 1
Amend ments Part 1
Evidence Amendment Bill 2008 No. , 2008 19
(6) Another defendant must not be given leave under subsection (2)
1
unless the previous representation of the defendant that has been
2
admitted includes evidence adverse to the defendant seeking leave.
3
Division 4--Persons with specialised knowledge
4
108C Exception: evidence of pe rsons with specialised knowledge
5
(1) The credibility rule does not apply to evidence given by a person
6
concerning the credibility of another witness if:
7
(a) the person has specialised knowledge based on the person's
8
training, study or experience; and
9
(b) the evidence is evidence of an opinion of the person that:
10
(i) is wholly or substantially based on that knowledge; and
11
(ii) could substantially affect the assessment of the
12
credibility of a witness; and
13
(c) the court gives leave to adduce the evidence.
14
(2) To avoid doubt, and without limiting subsection (1):
15
(a) a reference in that subsection to specialised knowledge
16
includes a reference to specialised knowledge of child
17
development and child behaviour (including specialised
18
knowledge of the impact of sexual abuse on children and
19
their behaviour during and following the abuse); and
20
(b) a reference in that subsection to an opinion of a person
21
includes, if the person has specialised knowledge of that
22
kind, a reference to an opinion relating to either or both of the
23
following:
24
(i) the development and behaviour of children generally;
25
(ii) the development and behaviour of children who have
26
been victims of sexual offences, or offences similar to
27
sexual offences.
28
57 Section 112
29
Omit "is not to be", substitute "must not be".
30
58 Paragraphs 114(5)(a) and (b)
31
Omit "a lawyer", substitute "an Australian legal practitioner or legal
32
counsel".
33
Schedule 1 Un iform evidence amend ments
Part 1 A mend ments
20 Evidence Amendment Bill 2008 No. , 2008
59 Subsection 117(1) (paragraph (a) of the definition of client)
1
Repeal the paragraph, substitute:
2
(a) a person or body who engages a lawyer to provide legal
3
services or who employs a lawyer (including under a contract
4
of service);
5
60 Subsection 117(1) (definition of lawyer)
6
Repeal the definition, substitute:
7
lawyer means:
8
(a) an Australian lawyer; and
9
(b) an Australian-registered foreign lawyer; and
10
(c) an overseas-registered foreign lawyer or a natural person
11
who, under the law of a foreign country, is permitted to
12
engage in legal practice in that country; and
13
(d) an employee or agent of a lawyer referred to in paragraph (a),
14
(b) or (c).
15
61 Paragraph 118(c)
16
Omit "client or a lawyer", substitute "client, lawyer or another person".
17
62 Section 122
18
Repeal the section, substitute:
19
122 Loss of client legal privilege: consent and related matters
20
(1) This Division does not prevent the adducing of evidence given
21
with the consent of the client or party concerned.
22
(2) Subject to subsection (5), this Division does not prevent the
23
adducing of evidence if the client or party concerned has acted in a
24
way that is inconsistent with the client or party objecting to the
25
adducing of the evidence because it would result in a disclosure of
26
a kind referred to in section 118, 119 or 120.
27
(3) Without limiting subsection (2), a client or party is taken to have so
28
acted if:
29
(a) the client or party knowingly and voluntarily disclosed the
30
substance of the evidence to another person; or
31
Unifo rm ev idence amend ments Schedule 1
Amend ments Part 1
Evidence Amendment Bill 2008 No. , 2008 21
(b) the substance of the evidence has been disclosed with the
1
express or implied consent of the client or party.
2
(4) The reference in paragraph (3)(a) to a knowing and voluntary
3
disclosure does not include a reference to a disclosure by a person
4
who was, at the time of the disclosure, an employee or agent of the
5
client or party or of a lawyer of the client or party unless the
6
employee or agent was authorised by the client, party or lawyer to
7
make the disclosure.
8
(5) A client or party is not taken to have acted in a manner inconsistent
9
with the client or party objecting to the adducing of the evidence
10
merely because:
11
(a) the substance of the evidence has been disclosed:
12
(i) in the course of making a confidential communication
13
or preparing a confidential document; or
14
(ii) as a result of duress or deception; or
15
(iii) under compulsion of law; or
16
(iv) if the client or party is a body established by, or a
17
person holding an office under, an Australian law--to
18
the Minister, or the Minister of the Commonwealth, the
19
State or Territory, administering the law, or part of the
20
law, under which the body is established or the office is
21
held; or
22
(b) of a disclosure by a client to another person if the disclosure
23
concerns a matter in relation to which the same lawyer is
24
providing, or is to provide, professional legal services to both
25
the client and the other person; or
26
(c) of a disclosure to a person with whom the client or party had,
27
at the time of the disclosure, a common interest relating to
28
the proceeding or an anticipated or pending proceeding in an
29
Australian court or a foreign court.
30
(6) This Division does not prevent the adducing of evidence of a
31
document that a witness has used to try to revive the witness's
32
memory about a fact or opinion or has used as mentioned in
33
section 32 (Attempts to revive memory in court) or 33 (Evidence
34
given by police officers).
35
63 Section 128
36
Repeal the section, substitute:
37
Schedule 1 Un iform evidence amend ments
Part 1 A mend ments
22 Evidence Amendment Bill 2008 No. , 2008
128 Privilege in respect of self-incrimination in othe r proceedings
1
(1) This section applies if a witness objects to giving particular
2
evidence, or evidence on a particular matter, on the ground that the
3
evidence may tend to prove that the witness:
4
(a) has committed an offence against or arising under an
5
Australian law or a law of a foreign country; or
6
(b) is liable to a civil penalty.
7
(2) The court must determine whether or not there are reasonable
8
grounds for the objection.
9
(3) If the court determines that there are reasonable grounds for the
10
objection, the court is to inform the witness:
11
(a) that the witness need not give the evidence unless required by
12
the court to do so under subsection (4); and
13
(b) that the court will give a certificate under this section if:
14
(i) the witness willingly gives the evidence without being
15
required to do so under subsection (4); or
16
(ii) the witness gives the evidence after being required to do
17
so under subsection (4); and
18
(c) of the effect of such a certificate.
19
(4) The court may require the witness to give the evidence if the court
20
is satisfied that:
21
(a) the evidence does not tend to prove that the witness has
22
committed an offence against or arising under, or is liable to
23
a civil penalty under, a law of a foreign country; and
24
(b) the interests of justice require that the witness give the
25
evidence.
26
(5) If the witness either willingly gives the evidence without being
27
required to do so under subsection (4), or gives it after being
28
required to do so under that subsection, the court must cause the
29
witness to be given a certificate under this section in respect of the
30
evidence.
31
(6) The court is also to cause a witness to be given a certificate under
32
this section if:
33
(a) the objection has been overruled; and
34
(b) after the evidence has been given, the court finds that there
35
were reasonable grounds for the objection.
36
Unifo rm ev idence amend ments Schedule 1
Amend ments Part 1
Evidence Amendment Bill 2008 No. , 2008 23
(7) In any proceeding in an Australian court:
1
(a) evidence given by a person in respect of which a certificate
2
under this section has been given; and
3
(b) any information, document or thing obtained as a direct or
4
indirect consequence of the person having given evidence;
5
cannot be used against the person. However, this does not apply to
6
a criminal proceeding in respect of the falsity of the evidence.
7
Note:
Subsection 128(7) differs from subsection 128(7) of the NSW Act.
8
The NSW provision refers to a NSW Court instead of an Australian
9
Court.
10
(8) Subsection (7) has effect despite any challenge, review, quashing
11
or calling into question on any ground of the decision to give, or
12
the validity of, the certificate concerned.
13
(9) If a defendant in a criminal proceeding for an offence is given a
14
certificate under this section, subsection (7) does not apply in a
15
proceeding that is a retrial of the defendant for the same offence or
16
a trial of the defendant for an offence arising out of the same facts
17
that gave rise to that offence.
18
(10) In a criminal proceeding, this section does not apply in relation to
19
the giving of evidence by a defendant, being evidence that the
20
defendant:
21
(a) did an act the doing of which is a fact in issue; or
22
(b) had a state of mind the existence of which is a fact in issue.
23
(11) A reference in this section to doing an act includes a reference to
24
failing to act.
25
(12) If a person has been given a certificate under a prescribed State or
26
Territory provision in respect of evidence given by the person in a
27
proceeding in a State or Territory court, the certificate has the same
28
effect, in a proceeding to which this subsection applies, as if it had
29
been given under this section.
30
(13) The following are prescribed State or Territory provisions for the
31
purposes of subsection (12):
32
(a) section 128 of the Evidence Act 1995 of New South Wales;
33
(b) a provision of a law of a State or Territory declared by the
34
regulations to be a prescribed State or Territory provision for
35
the purposes of subsection (12).
36
Schedule 1 Un iform evidence amend ments
Part 1 A mend ments
24 Evidence Amendment Bill 2008 No. , 2008
(14) Subsection (12) applies to:
1
(a) a proceeding in relation to which this Act applies because of
2
section 4; and
3
(b) a proceeding for an offence against a law of the
4
Commonwealth or for the recovery of a civil penalty under a
5
law of the Commonwealth, other than a proceeding referred
6
to in paragraph (a).
7
(15) Until the day fixed under subsection 4(6), subsection (12) applies
8
to a proceeding for an offence against a law of the Australian
9
Capital Territory or for the recovery of a civil penalty under such a
10
law, other than a proceeding referred to in paragraph (14)(a).
11
Note 1:
Bodies corporate cannot claim this privilege: see section 187.
12
Note 2:
Clause 3 of Part 2 of the Dictionary sets out what is a civil penalty.
13
Note 3:
The NSW Act does not contain provisions corresponding to
14
subsections (12) to (15).
15
Note 4:
Subsections (8) and (9) were inserted as a response to the decision of
16
the High Court of Australia in Cornwell v The Queen [2007] HCA 12
17
(22 March 2007).
18
128A Privilege in respect of self-incrimination--exception for
19
certain orders etc
20
(1) In this section:
21
disclosure order means an order made by a federal court or an
22
ACT court in a civil proceeding requiring a person to disclose
23
information, as part of, or in connection with a freezing or search
24
order, but does not include an order made by a court under the
25
Proceeds of Crime Act 2002.
26
relevant person means a person to whom a disclosure order is
27
directed.
28
(2) If a relevant person objects to complying with a disclosure order on
29
the grounds that some or all of the information required to be
30
disclosed may tend to prove that the person:
31
(a) has committed an offence against or arising under an
32
Australian law or a law of a foreign country; or
33
(b) is liable to a civil penalty;
34
the person must:
35
Unifo rm ev idence amend ments Schedule 1
Amend ments Part 1
Evidence Amendment Bill 2008 No. , 2008 25
(c) disclose so much of the information required to be disclosed
1
to which no objection is taken; and
2
(d) prepare an affidavit containing so much of the information
3
required to be disclosed to which objection is taken (the
4
privilege affidavit) and deliver it to the court in a sealed
5
envelope; and
6
(e) file and serve on each other party a separate affidavit setting
7
out the basis of the objection.
8
(3) The sealed envelope containing the privilege affidavit must not be
9
opened except as directed by the court.
10
(4) The court must determine whether or not there are reasonable
11
grounds for the objection.
12
(5) Subject to subsection (6), if the court finds that there are reasonable
13
grounds for the objection, the court must not require the
14
information contained in the privilege affidavit to be disclosed and
15
must return it to the relevant person.
16
(6) If the court is satisfied that:
17
(a) any information disclosed in the privilege affidavit may tend
18
to prove that the relevant person has committed an offence
19
against or arising under, or is liable to a civil penalty under,
20
an Australian law; and
21
(b) the information does not tend to prove that the relevant
22
person has committed an offence against or arising under, or
23
is liable to a civil penalty under, a law of a foreign country;
24
and
25
(c) the interests of justice require the information to be disclosed;
26
the court may make an order requiring the whole or any part of the
27
privilege affidavit containing information of the kind referred to in
28
paragraph (a) to be filed and served on the parties.
29
(7) If the whole or any part of the privilege affidavit is disclosed
30
(including by order under subsection (6)), the court must cause the
31
relevant person to be given a certificate in respect of the
32
information as referred to in paragraph (6)(a).
33
(8) In any proceeding in an Australian court:
34
Schedule 1 Un iform evidence amend ments
Part 1 A mend ments
26 Evidence Amendment Bill 2008 No. , 2008
(a) evidence of information disclosed by a relevant person in
1
respect of which a certificate has been given under this
2
section; and
3
(b) evidence of any information, document or thing obtained as a
4
direct result or indirect consequence of the relevant person
5
having disclosed that information;
6
cannot be used against the person. However, this does not apply to
7
a criminal proceeding in respect of the falsity of the evidence
8
concerned.
9
(9) Subsection (8) does not prevent the use against the relevant person
10
of any information disclosed by a document:
11
(a) that is an annexure or exhibit to a privilege affidavit prepared
12
by the person in response to a disclosure order; and
13
(b) that was in existence before the order was made.
14
(10) Subsection (8) has effect despite any challenge, review, quashing
15
or calling into question on any ground of the decision to give, or
16
the validity of, the certificate concerned.
17
64 Part 3.11 (heading)
18
Repeal the heading, substitute:
19
Part 3.11--Discretionary and mandatory exclusions
20
65 Subsection 139(2)
21
Omit "official questioning", substitute "questioning".
22
66 Section 148
23
Omit "lawyer" (first occurring), substitute "Australian lawyer".
24
67 Paragraph 148(a)
25
Omit "a lawyer", substitute "an Australian lawyer".
26
68 Section 161
27
Repeal the section, substitute:
28
Unifo rm ev idence amend ments Schedule 1
Amend ments Part 1
Evidence Amendment Bill 2008 No. , 2008 27
161 Electronic communications
1
(1) If a document purports to contain a record of an electronic
2
communication other than one referred to in section 162, it is
3
presumed (unless evidence sufficient to raise doubt about the
4
presumption is adduced) that the communication:
5
(a) was sent or made in the form of electronic communication
6
that appears from the document to have been the form by
7
which it was sent or made; and
8
(b) was sent or made by or on behalf of the person by or on
9
whose behalf it appears from the document to have been sent
10
or made; and
11
(c) was sent or made on the day on which, at the time at which
12
and from the place from which it appears from the document
13
to have been sent or made; and
14
(d) was received at the destination to which it appears from the
15
document to have been sent; and
16
(e) if it appears from the document that the sending of the
17
communication concluded at a particular time--was received
18
at that destination at that time.
19
(2) A provision of subsection (1) does not apply if:
20
(a) the proceeding relates to a contract; and
21
(b) all the parties to the proceeding are parties to the contract;
22
and
23
(c) the provision is inconsistent with a term of the contract.
24
Note:
Section 182 gives this section a wider application in relation to
25
Commonwealth records.
26
69 Part 4.5 (heading)
27
Repeal the heading, substitute:
28
Part 4.5--Warnings and information
29
70 Paragraph 165(1)(f)
30
Omit "official questioning", substitute "questioning by an investigating
31
official".
32
71 At the end of section 165
33
Add:
34
Schedule 1 Un iform evidence amend ments
Part 1 A mend ments
28 Evidence Amendment Bill 2008 No. , 2008
(6) Subsection (2) does not permit a judge to warn or inform a jury in
1
proceedings before it in which a child gives evidence that the
2
reliability of the child's evidence may be affected by the age of the
3
child. Any such warning or information may be given only in
4
accordance with subsections 165A(2) and (3).
5
72 At the end of Part 4.5
6
Add:
7
165A Warnings in relation to children's evidence
8
(1) A judge in any proceeding in which evidence is given by a child
9
before a jury must not do any of the following:
10
(a) warn the jury, or suggest to the jury, that children as a class
11
are unreliable witnesses;
12
(b) warn the jury, or suggest to the jury, that the evidence of
13
children as a class is inherently less credible or reliable, or
14
requires more careful scrutiny, than the evidence of adults;
15
(c) give a warning, or suggestion to the jury, about the
16
unreliability of the particular child's evidence solely on
17
account of the age of the child;
18
(d) in the case of a criminal proceeding--give a general warning
19
to the jury of the danger of convicting on the uncorroborated
20
evidence of a witness who is a child.
21
(2) Subsection (1) does not prevent the judge, at the request of a party,
22
from:
23
(a) informing the jury that the evidence of the particular child
24
may be unreliable and the reasons why it may be unreliable;
25
and
26
(b) warning or informing the jury of the need for caution in
27
determining whether to accept the evidence of the particular
28
child and the weight to be given to it;
29
if the party has satisfied the court that there are circumstances
30
(other than solely the age of the child) particular to the child that
31
affect the reliability of the child's evidence and that warrant the
32
giving of a warning or the information.
33
(3) This section does not affect any other power of a judge to give a
34
warning to, or to inform, the jury.
35
Unifo rm ev idence amend ments Schedule 1
Amend ments Part 1
Evidence Amendment Bill 2008 No. , 2008 29
165B Delay in prosecution
1
(1) This section applies in a criminal proceeding in which there is a
2
jury.
3
(2) If the court, on application by the defendant, is satisfied that the
4
defendant has suffered a significant forensic disadvantage because
5
of the consequences of delay, the court must inform the jury of the
6
nature of that disadvantage and the need to take that disadvantage
7
into account when considering the evidence.
8
(3) The judge need not comply with subsection (2) if there are good
9
reasons for not doing so.
10
(4) It is not necessary that a particular form of words be used in
11
informing the jury of the nature of the significant forensic
12
disadvantage suffered and the need to take that disadvantage into
13
account, but the judge must not in any way suggest to the jury that
14
it would be dangerous or unsafe to convict the defendant solely
15
because of the delay or the forensic disadvantage suffered because
16
of the consequences of the delay.
17
(5) The judge must not warn or inform the jury about any forensic
18
disadvantage the defendant may have suffered because of delay
19
except in accordance with this section, but this section does not
20
affect any other power of the judge to give any warning to, or to
21
inform, the jury.
22
(6) For the purposes of this section:
23
(a) delay includes delay between the alleged offence and its
24
being reported; and
25
(b) significant forensic disadvantage is not to be regarded as
26
being established by the mere existence of a delay.
27
73 Section 184
28
Before "In or before", insert "(1)".
29
74 Section 184
30
Omit ", if advised to do so by his or her lawyer".
31
75 At the end of section 184
32
Add:
33
Schedule 1 Un iform evidence amend ments
Part 1 A mend ments
30 Evidence Amendment Bill 2008 No. , 2008
(2) A defendant's admission or consent is not effective for the
1
purposes of subsection (1) unless:
2
(a) the defendant has been advised to do so by his or her
3
Australian legal practitioner or legal counsel; or
4
(b) the court is satisfied that the defendant understands the
5
consequences of making the admission or giving the consent.
6
76 Paragraph 190(2)(a)
7
Omit "lawyer", substitute "Australian legal practitioner or legal
8
counsel".
9
77 Paragraph 191(3)(a)
10
Omit "lawyers", substitute "Australian legal practitioners, legal counsel
11
or prosecutors".
12
78 After section 192
13
Insert:
14
192A Advance rulings and findings
15
Where a question arises in any proceedings, being a question
16
about:
17
(a) the admissibility or use of evidence proposed to be adduced;
18
or
19
(b) the operation of a provision of this Act or another law in
20
relation to evidence proposed to be adduced; or
21
(c) the giving of leave, permission or direction under
22
section 192;
23
the court may, if it considers it to be appropriate to do so, give a
24
ruling or make a finding in relation to the question before the
25
evidence is adduced in the proceedings.
26
79 Part 1 of the Dictionary
27
Insert:
28
Australian lawyer means a person who is admitted to the legal
29
profession by a Supreme Court of a State or Territory under a law
30
of a State or Territory specified in the regulations.
31
80 Part 1 of the Dictionary
32
Unifo rm ev idence amend ments Schedule 1
Amend ments Part 1
Evidence Amendment Bill 2008 No. , 2008 31
Insert:
1
Australian legal practitioner means an Australian lawyer who
2
holds a practising certificate under a law of a State or Territory
3
specified in the regulations.
4
81 Part 1 of the Dictionary
5
Insert:
6
Australian practising certificate means a practising certificate
7
granted under a law of a State or Territory specified in the
8
regulations.
9
82 Part 1 of the Dictionary
10
Insert:
11
Australian-registered foreign lawyer means a person who is
12
registered as a foreign lawyer under a law of a State or Territory
13
specified in the regulations.
14
83 Part 1 of the Dictionary
15
Insert:
16
credibility evidence is defined in section 101A.
17
84 Part 1 of the Dictionary
18
Insert:
19
de facto partner is defined in clause 11 of Part 2 of this Dictionary.
20
85 Part 1 of the Dictionary (definition of de facto spouse)
21
Repeal the definition.
22
86 Part 1 of the Dictionary
23
Insert:
24
electronic communication has the same meaning as it has in the
25
Electronic Transactions Act 1999.
26
87 Part 1 of the Dictionary (definition of lawyer)
27
Repeal the definition.
28
Schedule 1 Un iform evidence amend ments
Part 1 A mend ments
32 Evidence Amendment Bill 2008 No. , 2008
88 Part 1 of the Dictionary
1
Insert:
2
legal counsel means an Australian lawyer employed in or by a
3
government agency or other body who by law is exempted from
4
holding an Australian practising certificate, or who does not
5
require an Australian practising certificate, to engage in legal
6
practice in the course of that employment.
7
Note:
Examples of legal counsel are in-house counsel and government
8
solicitors.
9
89 Part 1 of the Dictionary (definition of official questioning)
10
Repeal the definition.
11
90 Part 1 of the Dictionary
12
Insert:
13
overseas-registered foreign lawyer means a natural person who is
14
properly registered to engage in legal practice in a foreign country
15
by an entity in the country having the function, conferred by the
16
law of the country, of registering persons to engage in legal
17
practice in the country.
18
91 Part 1 of the Dictionary
19
Insert:
20
prosecutor means a person who institutes or is responsible for the
21
conduct of a prosecution.
22
92 Part 1 of the Dictionary
23
Insert:
24
registered, in relation to legal practice in a foreign country, means
25
having all necessary licences, approvals, admissions, certificates or
26
other forms of authorisation (including practising certificates)
27
required by or under legislation for engaging in legal practice in
28
that country.
29
93 Part 1 of the Dictionary
30
Insert:
31
Unifo rm ev idence amend ments Schedule 1
Amend ments Part 1
Evidence Amendment Bill 2008 No. , 2008 33
traditional laws and customs of an Aboriginal or Torres Strait
1
Islander group (including a kinship group) includes any of the
2
traditions, customary laws, customs, observances, practices,
3
knowledge and beliefs of the group.
4
94 At the end of Part 2 of the Dictionary
5
Add:
6
11 References to de facto partners
7
(1) A reference in this Act to a de facto partner of a person is a
8
reference to a person who is in a de facto relationship with the
9
person.
10
(2) A person is in a de facto relationship with another person if the two
11
persons have a relationship as a couple and are not legally married.
12
(3) In determining whether two persons are in a de facto relationship,
13
all the circumstances of the relationship are to be taken into
14
account, including such of the following matters as are relevant in
15
the circumstances of the particular case:
16
(a) the duration of the relationship;
17
(b) the nature and extent of their common residence;
18
(c) the degree of financial dependence or interdependence, and
19
any arrangements for financial support, between them;
20
(d) the ownership, use and acquisition of their property;
21
(e) the degree of mutual commitment to a shared life;
22
(f) the care and support of children;
23
(g) the reputation and public aspects of the relationship.
24
(4) No particular finding in relation to any circumstance is to be
25
regarded as necessary in deciding whether two persons have a
26
relationship as a couple.
27
(5) For the purposes of subclause (3), the following matters are
28
irrelevant:
29
(a) whether the persons are different sexes or the same sex;
30
(b) whether either of the persons is legally married to someone
31
else or in another de facto relationship.
32
33
Schedule 1 Un iform evidence amend ments
Part 2 Transitional provisions
34 Evidence Amendment Bill 2008 No. , 2008
1
Part 2
--
Transitional provisions
2
95 Proceedings already begun
3
(1)
Subject to this Part, the amendments made by this Schedule do not
4
apply in relation to proceedings the hearing of which began before the
5
commencement of this Schedule.
6
(2)
The Evidence Act 1995, as in force immediately before that
7
commencement, continues to apply in relation to proceedings the
8
hearing of which began before that commencement.
9
96 Admissions
10
(1)
The amendment made by this Schedule to section 85 of the Evidence
11
Act 1995 does not apply in relation to admissions made before the
12
commencement of this Schedule.
13
(2)
That section, as in force immediately before that commencement,
14
continues to apply in relation to admissions made before that
15
commencement.
16
97 Failure or refusal to answer questions etc.
17
(1)
The amendment made by this Schedule to section 89 of the Evidence
18
Act 1995 does not apply in relation to any failure or refusal, before the
19
commencement of this Schedule:
20
(a) to answer one or more questions; or
21
(b) to respond to a representation.
22
(2)
That section, as in force immediately before that commencement,
23
continues to apply in relation to any such failure or refusal before that
24
commencement.
25
98 Prior operation of notice provisions
26
If, before the commencement of this Schedule, a notice in writing of a
27
kind referred to in section 97 or 98 of the Evidence Act 1995 is given:
28
(a) in the circumstances provided for in that section; and
29
(b) in accordance with such requirements (if any) as would apply
30
to the giving of the notice under that section after that
31
commencement;
32
Unifo rm ev idence amend ments Schedule 1
Transitional provisions Part 2
Evidence Amendment Bill 2008 No. , 2008 35
the notice is taken to have been given under that section as in force after
1
that commencement.
2
99 Disclosure orders
3
Section 128A of the Evidence Act 1995 as inserted by this Schedule
4
does not apply in relation to any disclosure order made before the
5
commencement of this Schedule.
6
7
Schedule 2 Other evidence amendments
36 Evidence Amendment Bill 2008 No. , 2008
1
Schedule 2
--
Other evidence amendments
2
3
Evidence Act 1995
4
1 Subsections 4(5), (5A) and (6)
5
Omit "in relation".
6
2 Section 5
7
Omit "in relation".
8
3 Paragraph 19(a)
9
Omit "Part III or IIIA", substitute "Part 2, 2A, 3, 4 or 5".
10
4 Paragraph 19(b)
11
Repeal the paragraph, substitute:
12
(b) an offence against section 374, 375, 376 or 389 of the
13
Children and Young People Act 1999 of the Australian
14
Capital Territory;
15
5 Paragraph 19(c)
16
Repeal the paragraph, substitute:
17
(c) an offence that is a domestic violence offence within the
18
meaning of the Domestic Violence and Protection Orders Act
19
2001 of the Australian Capital Territory.
20
6 Section 25
21
Repeal the section (including the note).
22
7 Section 105
23
Repeal the section (including the note).
24
8 Subsection 108(2)
25
Repeal the subsection.
26
9 Subsection 110(4)
27
Repeal the subsection (including the note).
28
Other evidence amendments Schedule 2
Evidence Amendment Bill 2008 No. , 2008 37
10 Subsection 182(1) (table)
1
Omit "telecommunications", substitute "electronic communications".
2
11 Subsection 182(1) (table)
3
Omit "Telexes", substitute "Electronic communications".
4
12 Subsection 186(1)
5
Omit "lawyer", substitute "Australian lawyer".
6
13 Application of amendments
7
The amendments made by this Schedule do not apply in relation to
8
proceedings the hearing of which began before the commencement of
9
this item.
10
11
Schedule 3 Printed and electronic publication of Acts
Part 1 Main amendments
38 Evidence Amendment Bill 2008 No. , 2008
1
Schedule 3
--
Printed and electronic
2
publication of Acts
3
Part 1
--
Main amendments
4
Amendments Incorporation Act 1905
5
1 Title
6
Repeal the title, substitute:
7
An Act relating to the publication of Acts in printed
8
and electronic form
9
2 Section 1
10
Repeal the section, substitute:
11
Part 1--Preliminary
12
13
1 Short title
14
This Act may be cited as the Acts Publication Act 1905.
15
1A Definitions
16
In this Act:
17
Acts database means an electronic database declared under
18
section 4.
19
compilation, of an Act that has been amended (whether by another
20
Act or by a legislative instrument) with effect from a particular
21
day, means the Act as so amended and in force on that day.
22
legislative instrument has the same meaning as in the Legislative
23
Instruments Act 2003.
24
Secretary means the Secretary of the Department.
25
Printed and electronic publication of Acts Schedule 3
Main amendments Part 1
Evidence Amendment Bill 2008 No. , 2008 39
Part 2--Printed publication of Acts
1
2
Note:
This item amends the short title of the Act. If another amendment of the Act is
3
described by reference to the Act's previous short title, that other amendment has effect
4
after the commencement of this item as an amendment of the Act under its amended
5
short title (see section 10 of the Acts Interpretation Act 1901).
6
3 Subsection 2(2)
7
After "enactment", insert "(or legislative instrument)".
8
4 Section 3
9
After "every Act", insert "(and legislative instrument, if any)".
10
5 Section 4
11
Repeal the section, substitute:
12
Part 3--Electronic publication of Acts
13
14
4 Acts database
15
(1) The Secretary may cause to be maintained an electronic database
16
of:
17
(a) Acts as assented to; and
18
(b) compilations of Acts.
19
(2) The Secretary may, in writing, declare a database maintained under
20
this section to be an Acts database for the purposes of this Act.
21
(3) The Secretary must cause steps to be taken to ensure that Acts and
22
compilations of Acts in an Acts database are available to the
23
public.
24
(4) A declaration made under subsection (2):
25
(a) is not a legislative instrument; and
26
(b) must be published in the Gazette.
27
5 Effect of inclusion in an Acts database
28
(1) An Act in an Acts database is presumed, unless the contrary is
29
proved, to be a complete and accurate record of the Act as assented
30
to.
31
Schedule 3 Printed and electronic publication of Acts
Part 1 Main amendments
40 Evidence Amendment Bill 2008 No. , 2008
(2) A compilation of an Act in an Acts database is presumed, unless
1
the contrary is proved, to be a complete and accurate record of the
2
Act as amended and in force on the day specified in the
3
compilation.
4
(3) In any proceedings, proof is not required about the provisions and
5
coming into operation (in whole or in part) of an Act as it appears
6
in an Acts database.
7
(4) A court or tribunal may inform itself about those matters in any
8
way it thinks fit.
9
6 Documents in an Acts database
10
A document that purports to be an extract from an Acts database is
11
presumed, unless the contrary is proved, to be what it purports to
12
be.
13
7 How an Acts database must be kept
14
(1) The regulations may prescribe matters relating to how an Acts
15
database must be kept, including the following:
16
(a) the way information may be recorded in an Acts database;
17
(b) the way information recorded in an Acts database may be
18
altered;
19
(c) a system of unique identifiers for each Act and compilation
20
in an Acts database, and the way in which they are to be
21
recorded in Acts and compilations.
22
(2) A compilation in an Acts database of an Act (the principal Act)
23
must include the following information:
24
(a) a reference to the amending legislation by which each
25
amendment was made to the principal Act;
26
(b) the amending history of each provision in the principal Act as
27
amended by all amending legislation covered by the
28
compilation;
29
(c) the day the compilation was prepared;
30
(d) any other information required by the regulations.
31
Printed and electronic publication of Acts Schedule 3
Main amendments Part 1
Evidence Amendment Bill 2008 No. , 2008 41
8 Rectification of an Acts database
1
(1) The Secretary must arrange for an Acts database to be altered to
2
rectify an error as soon as possible after the Secretary becomes
3
aware of the error, if the Secretary is satisfied that the error has the
4
result that:
5
(a) for an error concerning an Act--the electronic text of the Act
6
as it appears in the database does not represent the text of the
7
Act as assented to; or
8
(b) for an error concerning a compilation of an Act--the
9
electronic text of the compilation as it appears in the database
10
does not represent the state of the law that the text purports to
11
represent.
12
(2) The Secretary must arrange for the Acts database (as rectified) to
13
be annotated to explain:
14
(a) the nature, day and time of the rectification; and
15
(b) the reason for the rectification.
16
(3) An alteration of an Acts database under this section:
17
(a) does not affect any right or privilege that was acquired, or
18
that accrued, because of reliance on the content of the
19
database before the alteration was made; and
20
(b) does not impose or increase any obligation or liability that
21
was incurred before the alteration was made.
22
Part 4--Miscellaneous
23
24
9 Regulations
25
The Governor-General may make regulations prescribing matters:
26
(a) required or permitted by this Act to be prescribed; or
27
(b) necessary or convenient to be prescribed for carrying out or
28
giving effect to this Act.
29
30
Schedule 3 Printed and electronic publication of Acts
Part 2 Consequential amendments
42 Evidence Amendment Bill 2008 No. , 2008
1
Part 2
--
Consequential amendments
2
Acts Interpretation Act 1901
3
6 At the end of section 40
4
Add:
5
(4) For the purposes of subsection (3), a reference in relation to a
6
Commonwealth Act may also be made according to a copy of the
7
Act, or a compilation of the Act, as it appears in an Acts database
8
declared under section 4 of the Acts Publication Act 1905.
9
Carriage of Goods by Sea Act 1991
10
7 Subsection 7(5)
11
Repeal the subsection.
12
Legislative Instruments Act 2003
13
8 At the end of Division 5 of Part 4
14
Add:
15
35A Incorporation of amendme nts in re prints of legislative
16
instruments
17
(1) If the Government Printer reprints a legislative instrument that has
18
been amended at any time, the instrument must be reprinted as
19
amended by:
20
(a) any repeal or omission of words or figures; and
21
(b) any substitution of words or figures for any repealed or
22
omitted words or figures; and
23
(c) any insertion of words or figures.
24
(2) If a legislative instrument prescribes a method of citing another
25
legislative instrument (the amended instrument), the amended
26
instrument is taken to be amended by omitting the citation of the
27
amended instrument and substituting the prescribed method of
28
citation.
29
Printed and electronic publication of Acts Schedule 3
Consequential amend ments Part 2
Evidence Amendment Bill 2008 No. , 2008 43
(3) A reprint of an amended legislative instrument must include a
1
reference to the amending legislative instrument or Act. The
2
reference must be set out in the margin of, or in a footnote or
3
endnote to, the reprint.
4
(4) In this section:
5
words includes Part, Division, Subdivision, heading, regulation,
6
clause, subregulation, subclause, paragraph, subparagraph,
7
sub-subparagraph and Schedule.
8
Workplace Relations Act 1996
9
9 Subclause 5(1) of Schedule 2
10
Omit "(1)".
11
10 Subclause 5(2) of Schedule 2
12
Repeal the subclause (including the note).
13

 


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