EVIDENCE AMENDMENT REGULATIONS 2008 (NO. 1) (SLI NO 257 OF 2008) EXPLANATORY STATEMENT

EXPLANATORY STATEMENT

Select Legislative Instrument 2008 No. 257

ISSUED BY AUTHORITY OF THE ATTORNEY-GENERAL

EVIDENCE ACT 1995

EVIDENCE AMENDMENT REGULATIONS 2008 (No. 1)

The Evidence Act 1995 (the Act) provides a statutory framework for the rules of evidence to be applied in federal courts and courts in the Australian Capital Territory. In July 2007, the Standing Committee of Attorneys-General endorsed a model Uniform Evidence Bill which reformed the ‘Uniform Evidence Acts’, upon which the Act is based. On 27 November 2008, Parliament passed the Evidence Amendment Act 2008 (the Amendment Act) which implements the majority of these reforms. The Amendment Act received Royal Assent on 4 December 2008. It commences 28 days after Royal Assent.

Section 197 of the Act provides that the Governor‑General may make regulations, not inconsistent with the Act, prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

The purpose of the Evidence Amendment Regulations 2008 (the Regulations) is to:

· extend recognition by federal courts to self-incrimination certificates issued by Tasmanian and Western Australian courts. Self-incrimination certificates issued by New South Wales and Australian Capital Territory courts are already recognised by federal courts

· insert a new regulation that defines terms in the Act by reference to the respective State and Territory legal profession laws, and

· remove outdated references to provisions in the Evidence Act 1971 (ACT).

Section 128 of the Act outlines the procedure for a witness to claim privilege against self-incrimination and the circumstances in which a court must issue a certificate against self-incrimination. Once a certificate is issued, the evidence given by the person in respect of which the certificate was issued and any information, document or thing obtained as a direct or indirect consequence of the person having given evidence cannot be used against that person in any proceeding in an Australian court.

The Amendment Act inserts new definitions into the Act for ‘Australian lawyer’, ‘Australian legal practitioner’, ‘Australian practising certificate’ and ‘Australian registered foreign lawyer’. It was intended that jurisdictions would define these terms by reference to the relevant provisions of their Legal Profession Acts. However, the Commonwealth does not have a Legal Profession Act. Instead, the Regulations insert these terms into the Evidence Regulations 1995 (the Principal Regulations) and define them by reference to the respective State and Territory legal profession laws.

The amendments are implemented by Schedule 1 to the Regulations.

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

Officers from the ACT Department of Justice and Community Safety were consulted on the amendments to Regulation 4. All State and Territory jurisdictions were asked, through the SCAG Working Group on Evidence, to identify relevant State and Territory provisions to be prescribed under Regulations 7A and 10. Relevant Commonwealth stakeholders were also asked to propose additional changes to the Regulations for consideration. No other proposals were forthcoming.

The Regulations commence on the commencement of Schedules 1 and 2 to the Amendment Act, the 28^th day after the Amendment Act receives the Royal Assent.

The Act specifies no conditions that need to be satisfied before the power to make the Regulations may be exercised.

A Regulatory Impact Statement has not been prepared as the Regulations will not impact on business activity and will have no or low compliance cost or competition impact.

Details of the Regulations are as follows:

Regulation 1 – Name of Regulations

This regulation provides that the title of the Regulations is the Evidence Amendment Regulations 2008 (No. 1).

Regulation 2 – Commencement

This regulation provides for the Regulations to commence at the same time as Schedules 1 and 2 of the Evidence Amendment Act 2008. The Amendment Act commences operation on 1 January 2009, which is 28 days after the day on which it received Royal Assent.

Regulation 3 – Amendment of Schedule 1 of the Evidence Regulations

This regulation provides that the Principal Regulations are amended as set out in the Schedule 1.

Schedule 1 – Amendments

Item [1] – regulation 1

Item 1 provides that the name of the Principal Regulations is the Evidence Regulations 1995.

Item [2] – regulation 4

Regulation 4 of the Principal Regulations specifies, for the purpose of paragraph 8(4)(a) of the Act, the provisions of the Evidence Act 1971 of the Australian Capital Territory that are not affected by the Act.

Item 2 updates the references in Regulation 4 to sections of the Evidence Act 1971 (ACT) by removing provisions which have been repealed:

· the words in paragraph 4(a) ‘,other than the definitions in section 6 of banker’s books, diplomatic or consular representative, document, government department, public authority and reserved law’ are deleted as section 6 has been omitted from the Evidence Act 1971

· the reference to section 73 in paragraph 4 (b) is deleted as section 73 has been omitted from the Evidence Act 1971 and moved into the Supreme Court Act 1933

· paragraph 4(c) is deleted as Part XA has been omitted from the Evidence Act 1971 and moved to the Evidence (Miscellaneous Provisions) Act 2001

· paragraph 4(ca) is deleted as Part XII has been omitted from the Evidence Act 1971 and moved to the Evidence (Miscellaneous Provisions) Act 2001

· paragraph 4(d) is deleted as Parts XIIA and XIIB have been omitted from the Evidence Act 1971 and moved to the Court Procedures Act 2004 and Court Procedures Rules 2006, and

· paragraph 4(e) is deleted as sections 91 and 97 have been omitted from the Evidence Act 1971 and moved to the Supreme Court Act 1933.

Item [3] – regulation 7A

Subsection 128(12) and paragraph 128(13)(b) of the Evidence Act 1995 allow federal courts to treat self-incrimination certificates issued by State or Territory courts as if they had been issued under section 128, providing they are prescribed in the Principal Regulations.

Self-incrimination certificates issued by New South Wales and Australian Capital Territory courts are able to be recognised by federal courts under subsections 128(13)(a) and 128(14)(a).

Item 3 inserts regulation 7A, under paragraph 128(13)(b), which prescribes the following State provisions for the purposes of section 128(12):

· section 128 of the Evidence Act 2001 (TAS)

· section 11 of the Evidence Act 1906 (WA).

This enables federal courts to also recognise self-incrimination certificates issued by Tasmanian and Western Australian courts. This is appropriate as these jurisdictions have equivalent or sufficiently similar provisions for granting self-incrimination certificates.

Item [4] - regulation 10

Item 4 inserts regulation 10 which specifies certain State and Territory legal profession laws for the definitions of ‘Australian lawyer’, ‘Australian legal practitioner’, ‘Australian practising certificate’ and ‘Australian registered foreign lawyer’ in the Act. The Commonwealth does not have equivalent legislation regulating the legal profession.

The following State and Territory laws are specified for the definitions of ‘Australian lawyer’, ‘Australian legal practitioner’, and ‘Australian practising certificate’:

Legal Profession Act 2007 of Tasmania

Legal Profession Act 2004 of Victoria

Legal Practice Act 2003 of Western Australia

Legal Profession Act 2004 of New South Wales

Legal Profession Act 2006 of the Australian Capital Territory

Legal Practitioners Act 1981 of South Australia

Legal Profession Act of the Northern Territory

Legal Profession Act 2007 of Queensland

For the definition of ‘Australian-Register foreign lawyer’, the following State and Territory laws are specified: