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This is a Bill, not an Act. For current law, see the Acts databases.
FOREIGN EVIDENCE AMENDMENT BILL 2010
2008
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Foreign Evidence Amendment Bill 2008
No. , 2008
(Attorney-General)
A Bill for an Act to amend the Foreign Evidence Act
1994, and for related purposes
i Foreign Evidence Amendment Bill 2008 No. , 2008
Contents
1
Short title ............................................................................................ 1
2
Commencement .................................................................................. 1
3
Schedule(s) ......................................................................................... 1
Schedule 1--Amendme nts
3
Part 1--Amendments
3
Foreign Evidence Act 1994
3
Part 2--Application and transitional provisions
6
Foreign Evidence Amendment Bill 2008 No. , 2008 1
A Bill for an Act to amend the Foreign Evidence Act
1
1994, and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act may be cited as the Foreign Evidence Amendment Act
5
2008.
6
2 Commence ment
7
This Act commences on the day after it receives the Royal Assent.
8
3 Schedule(s)
9
Each Act that is specified in a Schedule to this Act is amended or
10
repealed as set out in the applicable items in the Schedule
11
2 Foreign Evidence Amendment Bill 2008 No. , 2008
concerned, and any other item in a Schedule to this Act has effect
1
according to its terms.
2
3
Amend ments Schedule 1
Amend ments Part 1
Foreign Evidence Amendment Bill 2008 No. , 2008 3
Schedule 1
--
Amendments
1
Part 1
--
Amendments
2
Foreign Evidence Act 1994
3
1 Subsection 3(1)
4
Insert:
5
business has a meaning affected by clause 1 of Part 2 of the
6
Dictionary in the Evidence Act 1995.
7
2 Subsection 3(1)
8
Insert:
9
business record means a document that:
10
(a) is or forms part of the records belonging to or kept by a
11
person, body or organisation in the course of, or for the
12
purposes of, a business; or
13
(b) at any time was or formed part of such a record.
14
3 Subsection 3(1)
15
Insert:
16
proceeds of crime law means the Proceeds of Crime Act 2002 or
17
the Proceeds of Crime Act 1987.
18
4 Subsection 3(1) (paragraph (a) of the definition of related
19
civil proceeding)
20
Omit "the Proceeds of Crime Act 2002 or the Proceeds of Crime Act
21
1987", substitute "a proceeds of crime law".
22
5 Paragraph 20(1)(c)
23
Omit "the Proceeds of Crime Act 2002 in relation to a designated
24
offence", substitute "a proceeds of crime law".
25
6 At the end of subsection 20(2)
26
Add:
27
Schedule 1 A mendments
Part 1 A mend ments
4 Foreign Evidence Amendment Bill 2008 No. , 2008
; or (c) a proceeding under a law that is a corresponding law within
1
the meaning of a proceeds of crime law.
2
7 After paragraph 22(1)(a)
3
Insert:
4
(aa) under an obligation to tell the truth imposed, whether
5
expressly or by implication, by or under a law of the foreign
6
country concerned; or
7
8 At the end of section 22
8
Add:
9
(3) It is presumed (unless evidence sufficient to raise doubt is adduced
10
to the contrary) that the testimony complies with subsections (1)
11
and (2).
12
9 Subsection 23(1)
13
Omit "an audio or video tape", substitute "a tape, disk or other device
14
from which sounds or images are capable of being reproduced".
15
10 Subsection 24(1)
16
Omit "subsection (2)", substitute "this section".
17
11 Subsection 24(2)
18
Repeal the subsection, substitute:
19
(2) The foreign material is not to be adduced as evidence if it appears
20
to the court's satisfaction at the hearing of the proceeding that the
21
person who gave the testimony concerned is in Australia and is
22
able to attend the hearing.
23
(3) If the foreign material does not appear to consist of a business
24
record, the foreign material is not to be adduced as evidence if the
25
evidence would not have been admissible had it been adduced from
26
the person who gave the testimony concerned at the hearing of the
27
proceeding.
28
(4) If the foreign material appears to consist of a business record, the
29
business record is not to be adduced as evidence if:
30
(a) the court considers that the business record is not reliable or
31
probative; or
32
Amend ments Schedule 1
Amend ments Part 1
Foreign Evidence Amendment Bill 2008 No. , 2008 5
(b) the business record is privileged from production in the
1
proceeding.
2
(5) To avoid doubt, if foreign material is adduced in a proceeding in
3
accordance with this Division, the foreign material is admissible in
4
the proceeding.
5
(6) Subsection (5) has effect despite any Commonwealth, State or
6
Territory law about evidence.
7
12 After section 24
8
Insert:
9
24A Discretion to limit use of foreign mate rial
10
The court may limit the use to be made of foreign material if there
11
is a danger that a particular use of the foreign material might be
12
unfairly prejudicial to a party to the proceeding concerned.
13
13 Subsection 26(1)
14
Omit "specified foreign material was", substitute "specified documents
15
or things were".
16
Note:
The heading to section 26 is altered by omitting "foreign material" and substituting
17
"requests made to foreign countries".
18
14 Subsection 26(2)
19
Omit "foreign material specified in the certificate was", substitute
20
"documents or things specified in the certificate were".
21
22
Schedule 1 A mendments
Part 2 Application and transitional provisions
6 Foreign Evidence Amendment Bill 2008 No. , 2008
Part 2
--
Application and transitional provisions
1
15 Application of amendments made by items 7 and 8
2
The amendments made by items 7 and 8 of this Schedule apply in
3
relation to testimony taken before or after the commencement of this
4
item that is adduced on or after the commencement of this item.
5
16 Application of amendments made by items 10 and 11
6
The amendments made by items 10 and 11 of this Schedule apply in
7
relation to foreign material obtained before or after the commencement
8
of this item that is adduced on or after the commencement of this item.
9
17 Application of item 12
--
section 24A of the Foreign
10
Evidence Act 1994
11
Section 24A of the Foreign Evidence Act 1994, as inserted by this
12
Schedule, applies in relation to foreign material adduced on or after the
13
commencement of this item.
14
18 Application of amendments made by items 13 and 14
15
The amendments made by items 13 and 14 of this Schedule apply in
16
relation to a certificate that:
17
(a) is given on or after the commencement of this item; and
18
(b) relates to a document or thing obtained as a result of a
19
request made before or after the commencement of this item.
20
19 Transitional and application provision
--
proceedings in a
21
court of a State or Territory
22
(1)
Despite the amendments made by this Schedule, Part 3 of the Foreign
23
Evidence Act 1994 continues to apply to a proceeding mentioned in
24
subsection 20(2) of that Act as if those amendments had not been made.
25
(2)
However, if the regulations provide that those amendments apply to
26
such a proceeding in a court of a particular State or Territory, Part 3 of
27
that Act, as amended by this Schedule, applies to that proceeding.
28
(3)
The Governor-General may make regulations for the purposes of
29
subitem (2).
30