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Statute Law Amendment (Evidence
Consequential Provisions) Bill 2009
Introduction Print
EXPLANATORY MEMORANDUM
General
This Bill makes consequential amendments to a range of Acts required as a
result of the commencement of the Evidence Act 2008, and provides
transitional arrangements for the commencement of the Evidence Act 2008
and the remaining parts of the Evidence Act 1958 (as the Evidence
(Miscellaneous Provisions) Act 1958).
The intention is for this Bill to commence at the same time as the Evidence
Act 2008.
Abbreviations:
VLRC refers to the Victorian Law Reform Commission. This Bill is largely
based on the VLRC's recommendations in its Report: Implementing the
Uniform Evidence Act, February 2006.
UEA refers to the Uniform Evidence Act. For more information see the
Uniform Evidence Act Reports of Victoria, the Commonwealth and NSW:
VLRC FR, ALRC 103, NSWLRC 112, 2005.
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the purpose of the Bill, which is to make consequential
amendments across the statute book required as a result of the
commencement of the Evidence Act 2008, to amend that Act and
for other purposes.
Clause 2 provides for the commencement of the Bill; this Bill is to
commence on the same day as the Evidence Act 2008.
561237 1 BILL LA INTRODUCTION 16/9/2009
PART 2--AMENDMENT OF THE EVIDENCE ACT 1958
Clause 3 changes the short title of the Evidence Act 1958 to the Evidence
(Miscellaneous Provisions) Act 1958. This is to avoid
confusion with the Evidence Act 2008.
Clause 4 repeals section 5, which provides that Division 1 of the Act does
not affect the court's power in criminal proceedings to exclude
evidence that had been obtained illegally or would operate
unfairly against the defendant if admitted. Division 1 enables the
Supreme Court to order a witness examination, and enables the
Supreme and County Courts to permit parties to tender
examination evidence produced by such an order. The general
discretion to exclude evidence is covered by the following
provisions of the Evidence Act 2008:
· section 137 (Exclusion of prejudicial evidence in
criminal proceedings);
· section 138 (Exclusion of improperly or illegally
obtained evidence).
Other relevant provisions of the Evidence Act 2008 are:
· section 90 (Discretion to exclude admissions);
· section 135 (General discretion to exclude evidence);
· section 136 (General discretion to limit use of
evidence).
Clause 5 repeals Division 2 of Part I of the Evidence Act 1958.
Section 10 provides that any number of witnesses may be
inserted into a subpoena or summons for the same party in the
same matter. The VLRC suggested that this provision was
probably designed to overcome a restriction previously imposed
at common law and it is now redundant. The current rules for the
Supreme Court, County Court and Magistrates' Court provide for
an unlimited number of people to be named in witness
subpoenas.
Section 11 provides that persons present and competent could be
required to give evidence, and to produce documents in their
possession, without a subpoena having been issued. This is
provided for by section 36 of the Evidence Act 2008.
2
Clause 6 repeals Division 4 of Part I of the Evidence Act 1958.
Section 13 provides that all parties to a pending proceeding in the
Supreme or County Court may apply for an order for the
inspection of any property (if it could be material to the question
at issue), and also allows the Court to make relevant costs orders.
The Evidence Act 2008 provides for inspection of property
(see in particular sections 53, 166 to 169 and 193), and the rules
of each Court may provide for the award of costs (see section 131
of the Magistrates' Court Act 1989, section 78A of the County
Court Act 1958 and section 24 of the Supreme Court Act
1986).
Clause 7 repeals Division 1 of Part II of the Evidence Act 1958.
Division 1 of Part II dealt with persons who may testify.
Section 22 provided that persons convicted of offences or who
have an interest in the matter are not precluded from giving
evidence. Section 23 provides for the competence of children
and people with impaired mental functioning to give evidence.
Section 24 provided for the competence of parties and spouses to
give evidence.
The Evidence Act 2008 provides for competence to testify by
providing that all persons are generally competent to give
evidence. Section 12 provides generally for competence to give
evidence, sections 13 and 14 provide for circumstances where a
person is not competent to give evidence and section 18 provides
for the competence and compellability of partners and others in
criminal proceedings.
Section 25 abolished the accused's right to make unsworn
statements or to give unsworn evidence. Section 21 of the
Evidence Act 2008 provides that a witness must either take an
oath or make affirmation before giving evidence (unless not
competent to give sworn evidence). Note that the repeal of this
section will not revive the accused's right to make an unsworn
statement.
Clause 8 amends Division 2 of Part II of the Evidence Act 1958.
Clause 8(1) repeals sections 26 and 27, which deal with the
competence of persons to give evidence against themselves, and
spouses and ex-spouses to give evidence against their partners.
Sections 12 and 18 of the Evidence Act 2008 provide for this.
Clause 8(3) repeals section 28(1), which dealt with confessions to
clergymen. This is provided for by section 127 of the Evidence
Act 2008.
3
Clause 8(4) repeals section 29, which provides for circumstances
where a witness cannot refuse to answer questions based on self-
incrimination. Section 128 of the Evidence Act 2008 provides
for a privilege against self incrimination, with the proviso that a
witness may be compelled to answer a question if it is in the
interests of justice.
Clause 8(5) repeals sections 31, 32, and 32A, which abrogated
common law rules. These sections are spent and may be safely
repealed. The repeal will not revive the rules (see section 14(2)
of the Interpretation of Legislation Act 1984).
Clause 8(6) amends section 32G(1), to substitute references to
repealed provisions of the Evidence Act 1958 with the correct
provisions in the Evidence Act 2008.
Clause 9 repeals sections 33, 34, 35, 36, 37, 38, 39, 40 and 41 of
Division 3 of Part II of the Evidence Act 1958.
Repealed section 33 dealt with questioning witnesses as to
previous convictions; corresponding provision section 102 of the
Evidence Act 2008 provides a general rule that evidence relevant
only to credibility is not admissible, section 103 provides that the
general rule does not apply in cross-examination where the
evidence has substantial probative value.
Repealed section 34 dealt with adverse witnesses; corresponding
provision section 38 of the Evidence Act 2008 provides that
parties may cross-examine an unfavourable witness with the
leave of the court and allows cross-examination by the party
calling witnesses as to any prior inconsistent statements and
where it appears no genuine attempt is being made to give
evidence of which it can reasonably be supposed they have
knowledge. Repealed section 35 dealt with evidence of previous
witness statements; corresponding provision section 43 of the
Evidence Act 2008 provides for admission of prior inconsistent
statements.
Repealed section 36 dealt with cross-examining witnesses as to
written statements without producing them; corresponding
provision section 43 of the Evidence Act 2008 provides amongst
other things that a party may cross-examine the witness on a prior
inconsistent statement without showing the statement to the
witness.
Repealed section 37 dealt with cross-examination as to
credibility; corresponding provision section 103 of the Evidence
Act 2008 provides that the credibility rule does not apply in
cross-examination if the evidence has substantial probative value.
4
Repealed section 38 provided that witnesses were not deemed
compellable on any matter which he or she was by law protected
against disclosing; this is not necessary as it only applies to
Division 3, all of which is either being repealed or relocated to
the Criminal Procedure Act 2009.
Repealed sections 39 and 40 dealt with inappropriate questions;
corresponding provision section 41 of the Evidence Act 2008
provides that the court can disallow improper questions.
As recommended by the VLRC, this provision differs slightly
from the UEA, the Court has increased discretion, and the
provision imposes a duty on the Court to prevent improper
questioning of vulnerable witnesses.
Repealed section 41 dealt with publishing prohibited questions;
corresponding provision section 195 of the Evidence Act 2008
provides an offence of publishing of prohibited questions.
Clause 10 repeals sections 41C and 41F of the Evidence Act 1958.
Repealed section 41C allowed the court to hear specialised
evidence to determine the witness competency of children or
persons with cognitive impairments in sexual offence
proceedings; corresponding provision section 13(7) of the
Evidence Act 2008 provides that the court may receive expert
opinion evidence in determining issues of competency.
Repealed section 41F required the court to disallow or provide a
warning for improper questions during cross-examination of
witnesses that were under the age of 18 years or had a cognitive
impairment; corresponding provision section 41 of the Evidence
Act 2008 provides that the court can disallow improper questions
and must disallow such questions in the case of vulnerable
witnesses, including those under the age of 18 or who have a
cognitive impairment.
Clause 11 repeals Division 4 of Part II of the Evidence Act 1958.
Repealed section 42A dealt with giving evidence in explanatory
material (such as charts); corresponding provision section 29(4)
of the Evidence Act 2008 provides for this.
Repealed section 42B dealt with the manner of giving
voluminous or complex evidence; corresponding provision
section 50 of the Evidence Act 2008 provides that voluminous
or complex evidence can be given in summary.
5
Clause 12 repeals Division 1 of Part III of the Evidence Act 1958, which
dealt with document proof and unavailability.
Repealed section 43 provided that Part III provisions did not
derogate any power of any other Act or at common law; the
VLRC recommended that this provision is redundant, as proof
and admissibility of documentary evidence is dealt with
otherwise in the Evidence Act 2008.
Repealed section 44 provided that provisions relating to evidence
apply to all persons acting judicially; the VLRC recommended
that while the equivalent provisions in the Evidence Act 2008
will only apply to courts, persons acting judicially who are not
bound by the rules of evidence are not bound by strict
requirements of proof.
Repealed section 45 provided that copies are admissible without
further proof of their authenticity; corresponding provision
section 150 of the Evidence Act 2008 provides a presumption
that documents with the seal of a government body or seal or
signature of an office holder are duly sealed/signed by that
body/office holder.
Repealed section 46 provided that the effect of copies was the
same as for originals; corresponding provision section 48 of the
Evidence Act 2008 allows evidence of the contents of a
document to be admitted by tendering a copy.
Repealed section 47 provided that it was not necessary to prove
that a document was printed by a government printer;
corresponding provision section 153 of the Evidence Act 2008
provides for this.
Clause 13 repeals Division 2 of Part III of the Evidence Act 1958, dealing
with proving British or foreign documents.
Repealed section 48 dealt with British and foreign treaties;
corresponding provision section 174 of the Evidence Act 2008
provides for proving treaties or acts of state of any foreign
country with more options and additional means of proof.
Repealed section 49 dealt with British and foreign wills and
judgments; corresponding provision section 157 of the Evidence
Act 2008 provides for this, but relates to all Australian and
foreign courts.
Repealed section 50 dealt with proving Royal proclamations and
Orders of Privy Council and so on; corresponding provision
section 174 of the Evidence Act 2008 provides for proving a
statute or proclamation of any foreign country. Note also
section 153.
6
Repealed section 51 dealt with documents that were admissible
in England, Wales or Ireland without proof; the VLRC
recommended that this provision is redundant, the Evidence Act
2008 is sufficiently comprehensive.
Repealed section 52 allowed registers of vessels to be proved by
original or copy; the VLRC recommended that this provision is
redundant, corresponding provisions sections 48, 58, 69, 156
and 183 of the Evidence Act 2008 deal with business records
and public documents.
Clause 14 repeals sections 53, 53A, 53B, 53C, 53D, 53E, 53F, 53G, 53H,
53J, 53K, 53L, 53M, 53N, 53P, 53R, 53S and 53T and amends
section 53Q of the Evidence Act 1958.
Repealed section 53 provided definitions for document, copy,
negative and reproduction; corresponding provisions sections 47
to 51 of the Evidence Act 2008 deal with documentary evidence
and sufficiently cover those definitions. In particular, the
definition of document in the Evidence Act 2008 includes a
reproduction so there is no separate definition of reproduction.
Repealed section 53A provided that certified reproductions of
certain public documents were admissible without further proof;
corresponding provisions sections 155 and 158 of the Evidence
Act 2008 provide for this.
Repealed sections 53B and 53D to 53P dealt with the
admissibility of types of documents, copies, and reproductions;
corresponding provisions sections 47 to 51 of the Evidence Act
2008 deal with documentary evidence. In particular, it is no
longer necessary to require that machines be approved, or that an
original document has been destroyed before the copy can be
tendered.
Repealed section 53C enabled the Attorney-General to approve
machines for micro-filming, and states that micro-film may be
admissible as evidence of the document if there is proof that the
negative was appropriately produced. There is no longer a need
to preserve the Attorney's role in approving machines for the
purpose of microfilming. The aspects of section 53C which
provide for the admissibility of microfilm is now covered by
sections 47 to 51 of the Evidence Act 2008.
Repealed section 53R allowed judicial decision makers to draw
reasonable inferences to reject reproductions; corresponding
provision section 135 of the Evidence Act 2008 provides a
general discretion to refuse to admit evidence on the grounds that
it is misleading or confusing.
7
Repealed section 53S dealt with estimating the weight of
reproductions rendered admissible; the VLRC recommended that
this provision is redundant following the commencement of the
Evidence Act 2008.
Repealed section 53T provided that the Division shall not
derogate from any other law or practice; the VLRC
recommended that this provision is redundant following the
commencement of the Evidence Act 2008.
Section 53Q is updated to reflect the repeal of section 53C.
Section 53Q is retained because it allows for microfilms of
documents to be preserved in lieu of the documents; section 11 of
the Electronic Transactions (Victoria) Act 2000 provides for
retaining an electronic form of documents, however it is subject
to a number of conditions and it is unlikely that a microfilm
could be characterised as electronic.
Clause 15 repeals Division 3 of Part III of the Evidence Act 1958.
Repealed section 54 provided that that Division 3 did not
prejudice evidence that would otherwise be admissible, and did
not enable evidence that would otherwise be inadmissible; the
VLRC recommended that this provision is redundant following
the commencement of the Evidence Act 2008.
Repealed section 55 dealt with the admissibility of documentary
evidence as to facts in issue; corresponding provisions
sections 62 to 68 of the Evidence Act 2008 provide for various
exceptions to the hearsay rule in relation to first hand hearsay and
documents. Note also that section 55(8), which enables a court to
act on a certificate of a registered medical practitioner in
determining whether a witness is fit to attend court and testify, is
covered by section 177 of the Evidence Act 2008.
Repealed section 55A dealt with the admissibility of evidence
concerning credibility; corresponding provision section 108A of
the Evidence Act 2008 provides that evidence relevant to the
credibility of a person whose representations have been admitted
without them being called, may only be admitted where it is
capable of substantially affecting the assessment of the credibility
of the person.
Repealed section 55AB dealt with using certain depositions at
trial and repealed section 55AC dealt with evidence of witnesses
at subsequent trials; a number of corresponding provisions in the
Evidence Act 2008 that cover these:
8
· sections 170 to 173 provide that authorship and
accuracy of transcripts can be deposed to by the
transcript provider;
· sections 58 and 183 provide that courts may draw
inferences from transcripts;
· sections 62 to 68 lift the hearsay rule for first-hand
hearsay in certain circumstances;
· section 38 allows cross-examination as to their prior
statements if a witness refuses to be sworn;
· section 60 allows a previous representation admitted
because it is relevant for a non-hearsay purpose to be
used for a hearsay purpose;
· note that the definition of unavailability of persons has
been broadened in the Evidence Act 2008, as
recommended by the VLRC; this further achieves the
work of current sections 55AB and 55AC, for example,
to cover where a person has a mental illness and is so
sick as to not be able to travel or is incapable of giving
evidence (unless it renders the person incompetent to
give evidence). For more information see the note to
clause 52, below.
Repealed section 55B provides for the admissibility of statements
produced by computers; corresponding provision section 48(1)(d)
of the Evidence Act 2008 provides a simplified method of proof
for documents produced by a computer.
Repeal of sections 55C and 55D is necessary following the repeal
of sections 55 and 55B.
Repealed section 56 dealt with the rules requiring corroboration;
this is redundant as section 164 of the Evidence Act 2008
abolishes corroboration requirements.
Repealed section 57 removed the need to adduce evidence of an
attesting witness to prove the validity of an instrument (other
than wills or other testamentary documents); corresponding
provision section 149 of the Evidence Act 2008 covers this.
Repealed section 58 applies the common law presumption that
documents more than 30 years old and produced from the proper
custody are presumed duly executed--to documents more than
20 years old; corresponding provision section 152 of the
Evidence Act 2008 provides for this.
9
Clause 16 repeals Division 3A of Part III of the Evidence Act 1958.
Division 3A dealt with providing evidence in the form of books
of account. The term books of account is not used in the
Evidence Act 2008, which instead provides for a system for
business records evidence, in accordance with the UEA.
Repealed section 58A provided definitions for Division 3A,
including a definition of books of account; this provision is
redundant following the commencement of the Evidence Act
2008 and the new system for business records, clause 1 of Part 2
of the Dictionary to the Evidence Act 2008 provides a definition
for references to businesses.
Repealed section 58B provided that evidence of books of account
entries and entry copies were prima facie evidence of their
contents; corresponding provisions of the Evidence Act 2008
that provide for the admission of business records are:
· section 48 provides for adducing the contents of
documents, specifically section 48(1)(e) provides for
tendering business records, as well as copies and
summaries of business records;
· section 69 provides for the business record exception to
the hearsay rule;
· section 147 provides that business record documents
produced by machines or processes are presumed to
have been produced by the machine or process;
· sections 170 and 171 provide for the admission of
relevant affidavit evidence;
· section 183 enables inferences to be drawn from
documents or things.
Repealed section 58C provided for the discovery, inspection and
coping of books of account; corresponding provision section 166
of the Evidence Act 2008 provides that parties to proceedings
can request a number of things of other parties, including
producing documents, allowing the examination and copying of
documents or things, and calling relevant witnesses.
Repealed sections 58D, 58E and 58F provided the approach to
proving the status of the books of account and verifying copies;
corresponding provisions sections 170 and 171 of the Evidence
Act 2008 provide for proving contents of documents and
business records (among other things) by the admission of
10
relevant affidavit evidence, section 183 allows the court to draw
inferences from documents including as to their authenticity.
Repealed section 58G provided that the Court could order that
books of account or copies be made available upon the
application of any party to the proceeding; section 169 of the
Evidence Act 2008 gives the court powers to order compliance
with requests made under section 166, as well as make other
orders following the failure or refusal to comply with a request.
Repealed section 58H provided that the Court had discretion to
order costs relevant to the books of account provisions; the
additional powers provided by section 193 of the Evidence Act
2008 include powers to make orders for costs in relation to the
discovery and inspection of documents.
Repealed section 58I provided that the books of account
provisions in sections 58B, 58D and 58E applied in relation to
books of account in any Australian state or territory; this
provision is redundant after the commencement of the Evidence
Act 2008:
· section 49 provides for special notice requirements
when a document is in a foreign country;
· sections 55 and 56 provide for relevant evidence to be
admissible;
· references to businesses in clause 1 of Part 2 of the
Dictionary includes businesses engaged in or carried on
outside Australia.
Repealed section 58J provided that Sunday, Christmas Day,
Good Friday and any bank holiday were excluded from the
computation of time for the purposes of books of account
provisions; section 44 of the Interpretation of Legislation Act
1984 provides for the calculation of time generally.
Clause 17 repeals sections 60 to 69 of the Evidence Act 1958.
Repealed section 60 provided for proving votes and proceedings
of Australian Legislatures by copy; corresponding provisions
sections 48, 69, 154 of the Evidence Act 2008 provide for this.
Repealed section 61 provided for proving Australian Royal
proclamations by copy; corresponding provision section 143(c)
of the Evidence Act 2008 provides for this.
Repealed section 62 provided for proving Government Gazettes;
corresponding provision section 153(1) of the Evidence Act
2008 provides for this.
11
Repealed section 63 dealt with the mode of proving
proclamations, orders and other instruments. Corresponding
provisions of the Evidence Act 2008 are:
· section 143 provides that no proof is required of
proclamations or orders in council;
· section 153(2) will allow admission of the gazette as
proof of the proclamation where a proclamation is
gazetted;
· section 155 provides for admission of public documents
where a proclamation is not gazetted;
· See also sections 48(1)(f) and 69.
Repealed section 64 provided that Government Gazette's were
evidence of the due making of laws; corresponding provision
section 153(2) of the Evidence Act 2008 provides for admission
of this type of evidence.
Repealed sections 65, 66 and 67 dealt with proving documents
admissible in other jurisdictions; corresponding provisions
sections 156, 158 of the Evidence Act 2008 provide for similar
mutual recognition.
Repealed sections 68 and 69 dealt with proving the incorporation
of companies and company documents. Sections 1274(7A) and
1274(4C) of the Corporations Act 2001 (Cth) provide that a
certificate of incorporation is conclusive evidence of contents and
that certified copies of documents lodged with ASIC are prima
facie evidence, section 44 of the Associations Incorporation
Act 1981 (Vic) provides a similar effect. Note that section 158
allows mutual recognition of certificates issued in other
jurisdictions.
Clause 18 repeals sections 72, 73 and 75 of the Evidence Act 1958.
Repealed section 72 dealt with certified copies of certain maps
and documents; to ensure certainty, this is to be re-enacted in the
Survey Coordination Act 1958.
Repealed section 73 dealt with proof of Crown grants;
corresponding provision section 155 of the Evidence Act 2008
provides for admission of a certified copy of a public record.
Repealed section 75 dealt with evidence of signatures of clerks of
courts; corresponding provision sections 155, 157 of the
Evidence Act 2008 provide for evidence of official records and
public documents relating to court processes.
12
Clause 19 substitutes section 74 of the Evidence Act 1958, which dealt
with proof of wills, to preserve those aspects of the original
section 74 which are not covered by the Evidence Act 2008.
New section 74 clarifies what is evidence of the content of a will
or codicil; see also section 157 of the Evidence Act 2008 which
deals with public documents relating to court processes, and
section 150(3) which deals with signatures of office holders, for
other aspects of proving wills.
Clause 20 repeals Division 5A of Part III of the Evidence Act 1958.
Repealed section 75A dealt with providing evidence of scientific
tests; corresponding provision section 177 of the Evidence Act
2008 provides procedures for parties to adduce opinion evidence
by tendering an expert certificate.
Clause 21 repeals sections 76, 77, 78 and 79 of the Evidence Act 1958.
Repealed section 76 dealt with judicial notice of Acts of the UK
Parliament; corresponding provisions of the Evidence Act 2008
are: section 143 provides for judicial notice of Imperial Acts in
force in Australia, section 144 provides for judicial notice of
matters capable of verification by reference to documents with
unquestionable authority, section 174 provides for evidence of
foreign legislation.
Repealed section 77 dealt with judicial notice of other
jurisdictions and their Acts; corresponding provision section 143
of the Evidence Act 2008 provides for this.
Repealed section 78 dealt with the public seals of other
jurisdictions; corresponding provision section 150 of the
Evidence Act 2008 provides for this.
Repealed section 79 dealt with judicial notice of certain
signatures and seals; corresponding provision section 78 of the
Evidence Act 2008 provides for this.
Clause 22 substitutes sections 80 and 81 of the Evidence Act 1958 to
preserve those aspects of the original sections 80 and 81 which
are not covered by the Evidence Act 2008 in relation to things
done under subordinate instruments.
New sections 80 and 81 are not substantially different, the
language is modernised.
Clause 23 repeals Division 7 of Part III of the Evidence Act 1958.
Repealed section 82 provided definitions for by-laws and
corporation for the purposes of Division 7; this is no longer
necessary following the repeal of Division 7.
13
Repealed sections 83, 84, 85 dealt with proving by-laws;
corresponding provision section 143(1)(b) of the Evidence Act
2008 provides for judicial notice of by-laws.
Repealed section 86 dealt with proving proceedings of councils
and boards; corresponding provisions sections 48, 69 and 156 of
the Evidence Act 2008 provide for admission of this type of
evidence.
Clause 24 repeals Division 8 of Part III of the Evidence Act 1958.
Repealed sections 87, 88 and 89 dealt with proving convictions
and acquittals (indictable, of other countries, and summary);
corresponding provision section 178 of the Evidence Act 2008
provides generally for proof of convictions and acquittals.
Clause 25 inserts new section 89F into Division 9 of Part III of the
Evidence Act 1958.
New section 89F clarifies that Part III, Division 9, dealing with
document unavailability, applies in relation to any civil
proceeding in addition to any provision of the Evidence Act
2008 that applies. This is to avoid doubt; while section 8 of the
Evidence Act 2008 ensures that the two schemes can operate
concurrently, there may be some confusion associated with the
operation of the document unavailability provisions in the two
Acts.
Clause 26 repeals Part IIIA of the Evidence Act 1958.
Repealed section 90 dealt with findings of guilt in civil
proceedings; corresponding provisions sections 91, 92(2) of the
Evidence Act 2008 provide for this. Section 91 generally
prevents the admission of evidence of judgments or convictions
as evidence of the fact in issue in that proceeding, section 92(2)
provides that section 91 does not prevent admission of evidence
of conviction of a party in civil proceedings, as long as the
conviction is not subject to appeal, quashed or pardoned.
Clause 27 substitutes Division 2 of Part IV of the Evidence Act 1958.
In 2002 the Parliamentary Law Reform Committee Inquiry into
Oaths and Affirmations with reference to the Multicultural
Community (Oaths and Affirmations Inquiry) recommended that
sections 100 to 104 of the Evidence Act 1958 be amended to
bring them into line with the approach taken in the Evidence Act
2008. As recommended Division 2 has been rewritten to reflect
the UEA (and the Evidence Act 2008), it is intended to align
with the Evidence Act 2008 sections 21 to 24 (dealing with oaths
14
and affirmations of witnesses) and Schedule 1 (Oaths and
Affirmations).
Repealed section 100 provided for the manner of administration
of oaths both inside and outside court; new section 100 indicates
that the substituted Division applies only to the administration of
oaths outside court and reflects section 21 of the Evidence Act
2008.
Repealed section 101 allowed for swearing with an uplifted hand
in the Scottish tradition; the VLRC recommended that this
provision is obsolete. New section 101 provides for the manner
of taking of oaths and affirmations, in accordance with section 21
of the Evidence Act 2008.
Repealed section 102 provided for making an affirmation rather
than oath; new section 102 does this, and ensures that the person
must be aware of this choice. This corresponds to sections 21
and 23 of the Evidence Act 2008.
Repealed section 103 provided the form of oral affirmations.
New section 103(1) provides that it is not necessary to use a
religious text, new section 103(2) ensures that the validity of
oaths were not affected by the absence of religious belief.
These correspond to section 24 of the Evidence Act 2008.
Repealed section 104 ensured that the validity of an oath was not
affected by the absence of religious belief; this is now provided
for by new section 103. New section 104 provides that an
affirmation in writing must use the form in lieu of jurat set out in
Part 2 of the Third Schedule.
Clause 28 substitutes sections 127 and 128 of the Evidence act 1958,
dealing with attestations.
New section 127 is a simplified version of the former provision.
It indicates that Divisions 6, 9 and 10 of Part IV, extend to certain
attestations; notarial act is also defined.
New section 128 is a simplified version of the former provision;
it provides for attestations made before a justice of the peace of
another jurisdiction, and that judicial or official notice must be
taken for a signature of a justice of the peace of other
jurisdictions.
15
Clause 29 amends sections 142 and 143 of the Evidence Act 1958 to reflect
their application to the corresponding provisions in the Evidence
Act 2008:
· existing section 142 makes it an indictable offence to
use or prepare false documents, seals, stamps or
signatures;
· existing section 143 makes it an indictable offence to
print or use documents falsely purporting to be printed
by government printer.
Clause 30 repeals sections 146, 147, 148 and 149 of the Evidence Act
1958.
Repealed section 146 dealt with impounding documents;
corresponding provision section 188 of the Evidence Act 2008
provides for this.
Repealed section 147 dealt with attesting witness; corresponding
provision section 149 of the Evidence Act 2008 provides for this.
Repealed section 148 dealt with comparing handwriting;
corresponding provisions sections 78, 79 of the Evidence Act
2008 provides for admitting such evidence.
Repealed section 149 dealt with admission of induced
confessions; corresponding provisions in the Evidence Act 2008
are:
· section 84 provides that the court must be satisfied that
a confession was not influenced by violent conduct or
threats;
· section 85 excludes admissions made in official
questioning if made in circumstances where truth is
adversely affected by circumstances;
· section 90 provides a general discretion to exclude
admissions in criminal proceedings;
· section 138 provides a general discretion to exclude
evidence improperly obtained.
16
Clause 31 substitutes section 149A of the Evidence Act 1958, which
related to admissions of fact in criminal proceedings.
New section 149A is a modernisation of the existing provision
and is amended to apply only to Confiscation Act 1997
proceedings; the new heading reflects that the provision relates to
confiscation proceedings. Aspects of section 149A repealed by
this amendment are dealt with by section 184 of the Evidence
Act 2008, which deals with admissions of fact by accused
persons in criminal proceedings.
Clause 32 repeals section 152(1)(c) of the Evidence Act 1958, which
allowed the Governor in Council to make regulations relating to
paying witnesses for coroners' inquests.
Section 13 of Part I of the Schedule to this Bill inserts these
powers into the Coroners Act 2008.
Clause 33 repeals sections 149AB, 149B, 149C, 150, 153, 154, 156, 157
and 158 of the Evidence Act 1958.
Repealed section 149AB dealt with agreed facts; corresponding
provision section 191 of the Evidence Act 2008 provides for this.
Repealed sections 149B and 149C dealt with giving directions to
waive certain rules of evidence with the consent of the parties;
corresponding provision section 190 of the Evidence Act 2008
provides for a waiver of certain rules of evidence with the
consent of the parties.
Repealed section 150 allowed the court to issue a warrant to
apprehend a witness who has not appeared; corresponding
provision section 194 of the Evidence Act 2008 provides for this
and also allows the court to order a fine or take any other
permitted action.
Repealed sections 153, 154, 156, 157, 158 provided transitional
arrangements for amending Acts, these are no longer required for
the remaining provisions in the Evidence Act 1958 and any
continued effect should be saved by operation of the
Interpretation of Legislation Act 1984.
Clause 34 inserts new sections 161 and 162 into the Evidence Act 1958 to
provide for transitional arrangements for the Evidence Act 1958,
following the commencement of this Bill.
The intention is to make the amendments to the Evidence Act
1958 apply to all hearings which commence on or after the
commencement date of that Act. The provision is drafted to
capture non-hearing based provisions, however there should be
17
no confusion that the intention is for the Act to apply to all
proceedings, including those which had started before the Act
commenced, and to apply to all hearings but not part-heard
hearings:
· new section 161(1) provides that amendments to the
Evidence Act 1958 apply to proceedings that
commence from the commencement of this Bill;
· new section 161(2) provides that amendments to the
Evidence Act 1958 also apply to proceedings that
commenced before the commencement of this Bill, but
only to the part of the proceeding that takes place from
the commencement day (except for hearings which fall
within subsection (3));
· new section 161(3) provides that the parts of the
Evidence Act 1958 that are not amended by this Bill,
and hence already in force before the commencement of
this Bill, continue to apply to hearings which are part
heard prior to the commencement date (that is, that
commenced before the commencement of this Bill, and
that continue after the Bill commences or is adjourned
until a day following the commencement of this Bill).
New section 162 makes it clear that a reference in any other Act
or instrument or document to a (non-repealed) provision of the
Evidence Act 1958, is to be read as a reference to the same
provision in the renamed Evidence (Miscellaneous Provisions)
Act 1958.
Clause 35 amends the Second Schedule, to substitute all references to the
Evidence Act 1958 with references to the new name of the Act,
the Evidence (Miscellaneous Provisions) Act 1958.
Clause 36 substitutes the Third Schedule, which provided the Form of
Certificate for Authentication of By-Law and is no longer
required. New Third Schedule contains the Form for oaths and
affirmations; this corresponds to Schedule 1 to the Evidence Act
2008.
18
PART 3--AMENDMENT OF CRIMES ACT 1958
Clause 37 repeals section 95(2) of the Crimes Act 1958, which was
introduced to overcome an old common law rule that husband
and wife could not give evidence against the other; corresponding
provision section 12 of the Evidence Act 2008 provides that all
persons are competent unless otherwise provided.
Clause 38 repeals section 192 of the Crimes Act 1958, which was an
offence-specific facilitation of opinion evidence, allowing the
opinions of qualified auditors and accountants to be admissible as
evidence of a company's financial position, removing the need to
prove basis of opinion; evidence of a properly qualified auditor
or accountant would be admissible under section 79 of the
Evidence Act 2008, a special rule for offences is not required.
Clause 39 amends the definition of legal proceeding in section 253 of the
Crimes Act 1958, to reflect the changed title of the Evidence
Act 1958 to the Evidence (Miscellaneous Provisions) Act 1958.
Clause 40 substitutes the first note to section 254(1) of the Crimes Act
1958, which indicated that document was defined in section 38
of the Interpretation of Legislation Act 1984; the new note
indicates that document is defined in the Evidence Act 2008,
ensuring that all documentary evidence that is admissible under
the Evidence Act 2008 will also attract the operation of the
destruction of evidence offences under the Crimes Act 1958.
Clause 41 amends section 395 of the Crimes Act 1958, which deals with
previous convictions of the accused. Sections 395 (3), (4) and (5)
provide for certified statements of conviction; corresponding
provision section 178 of the Evidence Act 2008 provides for
statements of conviction. Subsection (3) is amended to refer to
section 178 of the Evidence Act 2008.
Repealed section 395(7) provided that courts could permit the
admission of evidence of a previous conviction, if an accused
gives evidence of his or her own good character; corresponding
provision section 110 of the Evidence Act 2008 covers situations
where the accused tenders evidence as to his or her good
character.
Clause 42 repeals section 398A of the Crimes Act 1958, which related to
the admissibility of propensity evidence; corresponding
provisions sections 97, 98, 101 of the Evidence Act 2008
provide for tendency and coincidence evidence.
19
Clause 43 repeals section 399 of the Crimes Act 1958, which dealt with
competence and compellability of certain types of witnesses and
the admissibility of some evidence.
Repealed section 399(1) dealt with when the defendant could
give evidence in criminal proceedings; corresponding provision
section 17 of the Evidence Act 2008 provides for the
competence and compellability of defendants in criminal
proceedings.
Repealed section 399(2) dealt with when spouses and ex-spouses
could give evidence in criminal proceedings; corresponding
provision section 18 of the Evidence Act 2008 provides for the
competence and compellability of spouses, parents and children
of the defendant in criminal proceedings.
Repealed section 399(3) prohibited the prosecution and the
presiding judge from commenting to the jury on a failure to give
sworn evidence. Corresponding provision section 20 of the
Evidence Act 2008 provides that the judge (but not the
prosecutor) may comment on the failure of the defendant (as well
as the defendant's spouse, parent or child) to give evidence but
must not suggest that this was because the defendant was guilty
or because the spouse, parent or child believed the defendant was
guilty.
Repealed section 399(4) permits defendants being cross-
examined as witnesses to be asked self-incriminating questions;
corresponding provision section 128(8) of the Evidence Act
2008 provides that privilege against self-incrimination does not
apply to evidence by a defendant in a criminal proceeding in
relation to facts in issue.
Repealed section 399(5) deals with when a defendant called as a
witness could be cross-examined on matters relating to character
or prior criminal history; corresponding provisions of the
Evidence Act 2008 are:
· sections 97, 98 and 101 provide for when tendency and
coincidence evidence is admissible;
· section 104 provides for when a defendant can be cross-
examined about matters relating to his or her credibility;
· section 110 provides that the shields of the hearsay,
opinion, tendency and credibility rules are lost where
defendant adduces evidence to prove his or her own
good character.
20
Clause 44 repeals section 400 of the Crimes Act 1958, which relates to the
capacity of defendants' spouses and ex-spouses to be competent
and compellable witness. Corresponding provision section 18 of
the Evidence Act 2008 provides for the competence and
compellability of spouses, parents and children of the defendant
in criminal proceedings.
Clause 45 repeals section 401 of the Crimes Act 1958, which provided for
simplifying proof of previous offences by allowing the courts to
provide a certificate containing the substance and effect of the
conviction as sufficient evidence of prior convictions.
Corresponding provisions sections 178 and 180 of the Evidence
Act 2008 provide mechanisms for proving previous convictions.
Clause 46 repeals section 411 of the Crimes Act 1958, which permitted
judicial officers and the jury to determine age from a person's
appearance, if there was no sufficient evidence. Existing court
processes allow the judge and jury to make inferences based on a
person's appearance (without a statutory provision); in addition
section 54 of the Evidence Act 2008 provides for inferences to
be drawn from observations.
Clause 47 repeals section 413 of the Crimes Act 1958, which permitted
depositions and committal statements to be used as evidence at
trial. Corresponding provision section 65(3) of the Evidence Act
2008 provides for such evidence to be admitted in criminal trials
where the maker of the statement is unavailable, if the defendant
cross-examined the maker of the statement or had an opportunity
to do so.
Clause 48 repeals section 415 of the Crimes Act 1958, which permitted the
County and Supreme Courts to issue warrants and fines to
witnesses who do not appear. Corresponding provision
section 194 of the Evidence Act 2008 provides for this.
Clause 49 repeals section 419 of the Crimes Act 1958, which had two
aspects:
· repealed section 419 authorised the court to direct the
jury to view a place or thing and established the fit and
desirable test for ordering a view; corresponding
provision section 53 of the Evidence Act 2008 allows
for views (as well as experiments, demonstrations and
inspections), section 54 also provides that the view can
be used as evidence (in contrast to the common law
position);
21
· repealed section 419 also authorised the court to give
directions for the conduct of a view, and to discharge
the jury or adjourn proceedings if the disobedience was
discovered before the verdict; it also indicated that
disobeying the directions did not invalidate the
proceedings. These matters already fall within the
inherent powers of the court to manage and direct
proceedings and do not require a statutory provision;
repealing the provision is not intended to interfere with
the implied powers to do those things.
Clause 50 inserts new paragraph (ba) into existing section 464J of the
Crimes Act 1958.
Existing section 464J declares that nothing in Subdivision 30A--
Custody and investigation affects the accused's right to refuse to
answer questions, the prosecution onus of establishing that an
admission was voluntary, or the court's discretion to exclude
unfairly and illegally or improperly obtained evidence.
Subdivision 30A provides the procedural scheme for the custody
and investigation of suspects, including fingerprint and forensic
procedures.
New paragraph (ba) declares that nothing in subdivision 30A
affects the prosecution onus to prove that an admission or
confession was made in such circumstances as to make it
unlikely that the truth of the admission or confession was
adversely affected. This is in similar terms to section 23S(ba) of
the Crimes Act 1914 (Cth), and is consistent with section 85 of
the Evidence Act 2008, which disallows admissions unless it can
be shown that in the circumstances it was unlikely that the truth
of the admission was adversely affected.
Clause 51 inserts new section 613 into the Crimes Act 1958 to provide
transitional arrangements for the Crimes Act 1958 following the
commencement of this Bill.
The intention is to make those parts of the Crimes Act 1958 that
are amended by this Bill apply to all hearings which commence
on or after the commencement date of the Bill. The provision is
drafted to capture non-hearing based provisions, however there
should be no confusion that the intention is for the Act to apply to
all proceedings, including those which had started before the Act
commenced, and to apply to all hearings but not part-heard
hearings:
22
· new section 613(1) provides that amendments to the
Crimes Act 1958 apply to proceedings that commenced
from the commencement of this Bill;
· new section 613(2) provides that amendments to the
Crimes Act 1958 also apply to proceedings that
commenced before the commencement of this Bill, but
only to the part of the proceeding that takes place from
the commencement day (except for hearings which fall
within subsection (3));
· new section 613(3) provides that the parts of the
Crimes Act 1958 that are not amended by this Bill, and
hence already in force before the commencement of this
Bill, continue to apply to hearings which are part heard
prior to the commencement date (that is, that
commenced before the commencement of this Bill, and
that continue after the Act commences or are adjourned
until a day following the commencement of this Bill).
PART 4--AMENDMENTS TO THE EVIDENCE ACT 2008
Clause 52 inserts new clause 4(1)(g) to Part 2 of the Dictionary to the
Evidence Act 2008, which amends the definition of
unavailability of persons.
New clause 4(1)(g) extends the circumstances in which a person
is taken to not be available to give evidence to when a person is
mentally or physically unable to give evidence, and it is not
reasonably practicable to overcome that inability. The definition
of unavailability of persons is primarily relevant to the operation
of sections 63 and 65 of the Evidence Act 2008, which provide
exceptions to the hearsay rule where a person who has made a
previous representation is not available to give evidence about an
asserted fact. The Uniform Evidence Acts do not accommodate
witnesses who should be considered unavailable because of their
physical or psychological condition; this is particularly pertinent
to sexual offence complainants in retrials.
As noted above in the note to clause 15, sections 55AB and
55AC of the Evidence Act 1958 provide for circumstances in
which a person's prior evidence, which would otherwise be
hearsay, can be used in a subsequent proceeding, and for a
definition of unavailability of persons which includes
circumstances where a person is incapable of giving evidence in
the relevant proceeding. These sections are repealed by this Bill
as this aspect is covered by the relevant hearsay provisions within
23
the Evidence Act 2008, the expansion of the definition of
unavailability of persons ensures that the Evidence Act 2008
provisions continue to do the work currently achieved by
sections 55AB and 55AC. This amendment responds to
recommendation 8-2 of the NSW, Australian and Victorian Law
Reform Commissions in their Uniform Evidence Act Report
2005.
Clause 53 inserts a new Schedule 2 into the Evidence Act 2008, which
contains the necessary transitional provisions required for the
commencement of the Evidence Act 2008 in Victoria.
Part 1 of new Schedule 2 sets out the general transitional
provisions. Clause 1 contains a definition of commencement
day, which is the day that the Evidence Act 2008, other than
Part 1 and the Dictionary, commences. Clause 2 provides for the
application of the Evidence Act 2008. The VLRC recommended
that the Evidence Act 2008 apply as early as possible, in order to
minimise the period of time for which there are two concurrent
evidence regimes.
The intention is that the Evidence Act 2008 apply to all hearings
which commence on or after the commencement date of that Act.
The provision is drafted to capture non-hearing based provisions,
however there should be no confusion that the intention is for the
Act to apply to all proceedings, including those which had started
before the Act commenced, and to apply to all hearings but not
part-heard hearings:
· clause 2(1) provides that the Evidence Act 2008 applies
prospectively to a proceeding from the day that the Act
commences;
· clause 2(2) provides that the Evidence Act 2008 does
not apply to a hearing that has been partly heard on the
commencement day (this is a hearing in a proceeding,
where the hearing was commenced before the
commencement day and either continued on or after the
commencement day or was adjourned until the
commencement day or following).
Note that where the Evidence Act 2008 does not apply, the law
in force before the commencement day (including any
superseded provisions) continues to apply.
Clause 3 provides that section 128A of the Evidence Act 2008
does not apply to a disclosure order, as defined in the section,
ordered before the commencement day, even if that order would
fall within the meaning of a disclosure order had it been made
24
after the commencement day. (Such orders will still apply the
existing Supreme Court Rules in relation to the determination of
claims in relation to the privilege against self-incrimination.)
Section 128A provides an exception to the privilege against self-
incrimination for certain orders, to deal with objections on the
grounds of self-incrimination when complying with a search
order (Anton Piller) or a freezing order (Mareva) in civil
proceedings other than under the proceeds of crime legislation.
Clause 4 provides transitional arrangements for disclosure
requirements, which are defined to mean a process or order of the
court that requires the disclosure of the information or document,
including a summons or subpoena to produce documents or give
evidence; pre-trial discovery; non-party discovery;
interrogatories; a notice to produce; a search warrant.
Section 131A of the Evidence Act 2008 extends the application
of Part 3.10--Privileges, to the pre-trial stages of civil and
criminal proceedings. It provides that the court must determine
any objection (on the basis of client legal privilege or public
interest) by a person to a disclosure requirement in a preliminary
proceeding as though it were an objection to the giving or
adducing of evidence:
· clause 4(1) provides that section 131A does not apply to
a disclosure requirement made before the
commencement day, if it would fall within the meaning
of section 131A if it had been ordered after
commencement day, or to summons and subpoenas to
give evidence at a part heard hearing;
· clause 4(2) clarifies that section 131A does apply to a
summons or subpoena to give evidence issued before
the commencement day, as long as it is not to give
evidence at a part heard hearing; it is intended that
where the Evidence Act 2008 applies to a hearing in
which a witness has been required to give evidence by
way of a summons or subpoena which is issued prior to
the commencement day, the Evidence Act 2008 will
apply to that summons or subpoena. This exception
does not affect substantive rights.
Clause 5 provides that section 114 of the Evidence Act 2008
(which relates to the admissibility of identification evidence
based on what a person saw) and section 115 (which relates to
the admissibility of evidence of an identification made by a
person examining police pictures), do not apply in relation to
25
identifications made before the commencement day. This is
regardless of when proceedings were initiated.
Clause 6 provides that section 146 of the Evidence Act 2008
(which enables the court to find that documents produced by
devices were properly produced) and section 147 (which enables
the court to find that documents produced for business purposes
were properly produced), apply to documents and things
produced before the commencement day.
Clause 7 provides that section 148 of the Evidence Act 2008
(which enables the court to presume that the confirmation of a
document was done so appropriately) and section 149 (which
dispenses with the need to call a witness who attested to the
execution of a document to give evidence about the execution of
the document), apply to documents that were confirmed before
the commencement day.
Clause 8 provides transitional arrangements for official records
published before the commencement day. Sections 153, 154,
155, 156, 157, 158 and 159 of the Evidence Act 2008 provide
presumptions for matters of official record. This new clause
provides that they apply to all documents within their nature,
irrespective of whether they were completed before the
commencement day.
Clause 9 provides that section 191(3)(a) of the Evidence Act
2008 applies to agreements entered into before the
commencement day under section 149AB(3) of the Evidence
Act 1958. Section 191 applies where the parties to a proceeding
have agreed that, for the purposes of the proceeding, a fact is not
to be disputed in the proceeding. If the agreement is in writing,
signed by or for all the parties or, by leave of the court, stated
before the court with the agreement of all parties, evidence may
not be adduced to prove, rebut or qualify an agreed fact, unless
the court gives leave.
Section 191(2) provides that evidence is not required to prove the
existence of an agreed fact and that evidence may not be adduced
to contradict or qualify an agreed fact unless the court gives
leave. Section 191(3)(a) provides that subsection (2) does not
apply unless the agreed fact is stated in an agreement in writing
signed by the parties or by Australian legal practitioners, legal
counsel, or prosecutors representing the parties and adduced in
evidence in the proceedings.
26
It is intended that sections 191(2) and 191(3)(a) apply to
agreements reached prior to the commencement of section 191
under section 149AB of the Evidence Act 1958, which is almost
identical to section 191.
Clause 10 clarifies that section 139 of the Evidence Act 2008
does not apply in relation to a statement made or act done before
the commencement day. Section 139 sets out the circumstances
in which evidence of a person's statement or act during
questioning by investigating officials is to be taken to have been
improperly obtained for the purpose of section 138, which
enables the court to exclude evidence obtained improperly.
Part 2 of new Schedule 2 provides transitional arrangements in
relation to various notification provisions in the Evidence Act
2008; in general the approach mirrors the approach to notice
provisions followed in NSW.
Clause 11 provides that if a document is given or served before
the commencement of a notification provision it is taken to have
been given or served under a notice provision, if it accords with
the circumstances provided for in that provision and the
requirements of that provision.
This new clause lists a number of notice provisions, including
evidence given by police officers, documents in foreign
countries, proof of voluminous or complex documents, hearsay
notice to be given, objections to tender of hearsay evidence in
civil proceedings if maker available, exception for reputation as
to relationships and age, time limits for making certain requests,
and notification of other parties.
Clause 12 provides for the period of time for objecting to hearsay
evidence adduced after a notice is taken to be given under
section 67(1) because of clause 11.
This new clause provides that if a notice given before the
commencement day is taken to have been given under
section 67(1) because of clause 11, the time limit for objecting to
the tender of evidence to which the notice relates, is 7 days after
section 68 commences, or 21 days after the notice was given.
Section 67(1) of the Evidence Act 2008 provides that certain
sections do not apply to evidence adduced by a party, unless that
party has given reasonable notice in writing to each other party of
the party's intention to adduce the evidence. This requires
reasonable notice to be given of an intention to adduce evidence
of a first-hand hearsay representation, where the maker of the
representation will not be called as a witness.
27
Clause 13 provides notice requirements for tendency and
coincidence evidence, for the purposes of sections 97 and 98 of
the Evidence Act 2008. Section 97 sets out the exclusionary rule
for tendency evidence and section 98 sets out the exclusionary
rule for coincidence evidence. Subsections (1)(a) of both
sections 97 and 98 require the party seeking to adduce the
evidence to give reasonable notice to the other party of the
intention to adduce that evidence.
Clause 13(1) provides that sections 97(1)(a) and 98(1)(a) apply to
notices of that character given before the commencement of those
sections. Note that section 100 of the Evidence Act 2008
enables the court to dispense with notice requirements in relation
to tendency and coincidence evidence (either before or after the
party would have been required to give notice).
Clause 13(2) provides that a section 97 or 98 notice given before
the commencement day is deemed to have been in accordance
with the regulations or rules for section 99 purposes; this is
despite clause 11(1)(b) which indicates that documents must have
been served in accordance with the notice requirements after
commencement. Section 99 of the Evidence Act 2008 provides
that notices given under sections 97 or 98 are to be given in
accordance with any regulations or rules of court made for the
purpose of the section; the form of the notice will be set out in
the Regulations.
Clause 14 provides transitional arrangements for notice
requirements and time limits in relation to requests.
Clause 14(1) provides a reference to making a request under
section 167 includes a reference to a request before the
commencement day. Sections 58C to 58J of the Evidence Act
1958 set out the processes of discovery and inspection in relation
to books of account, this overlaps with a request to which
section 167 of the Evidence Act 2008 applies.
Clause 14(2) provides that if notice is given before the
commencement of section 168(1) or 168(3) of the Evidence Act
2008, it is intended that this notice be taken to have been given
under one of those subsections. In that case, the period for a
request to be made under that subsection in connection with the
notice is 7 days after the section commences, or 21 days after the
notice was given. Section 168 provides for time limits for
making certain requests; if a party has given to another party
written notice of its intention to adduce evidence of a previous
representation, the other party may only make a request to the
party relating to the representation if the request is made within
21 days after the notice was given.
28
Clause 14(3) provides that if a copy of a document served before
the commencement of section 168(5) or 168(6) of the Evidence
Act 2008 is taken to have been served under one of those
subsections, the period for a request to be made under that
subsection in connection with the document is 7 days after the
section commences, or 21 days after the document was served.
Where a party to a proceeding provides notice prior to the
commencement day for the purposes of a hearing that will attract
the operation of the Evidence Act 2008, it is not intended that
there be any impediment for this notice to be considered in the
assessment of whether a party has provided reasonable notice
of their intention to adduce certain evidence, even where the
party does not provide that notice using the prescribed form.
However, the court must be satisfied that the notice provided is
adequate.
Clause 14(4) provides that that time passed before the
commencement day is to be included in any assessment of
whether a request under section 168 was made within a
reasonable time. Section 169 of the Evidence Act 2008 provides
for those circumstances where a party fails or refuses to comply
with a request; it sets out a range of orders available to the court
(on application). Subsection (2) provides that if a party had
informed the other party within a reasonable time after receiving
the request that it refuses to comply with the request, an
application under section 169(1) must be made within a
reasonable time. It is possible that a request could be made (for
example a pre-trial request such as those listed in section 131A)
before the commencement of the Evidence Act 2008.
Clause 15 provides transitional arrangements for requests made
under section 173 of the Evidence Act 2008, which sets out
requirements in relation to the notification of other parties in
relation to affidavits or statements relating to evidence of certain
facts. Section 173 requires a copy of the affidavit or statement to
be served on each party a reasonable time before the hearing of
the proceeding.
It is intended that parties to hearings that apply the Evidence Act
2008 are served a reasonable time before the hearing of the
proceeding. Accordingly, this section should apply to all
hearings to which the Evidence Act 2008 applies, irrespective of
whether the affidavit or statement was prepared before the
commencement day.
This new clause provides that a request made before the
commencement day that would, if it were made after the
commencement day be a request under section 173(2), is taken to
be such a request.
29
Clause 16 provides transitional arrangements for proving
voluminous or complex documents under section 50 of the
Evidence Act 2008 (which corresponds to repealed section 42B
of the Evidence Act 1958).
Section 50 enables a party to apply to the court to be able to
adduce evidence of the contents of two or more documents in the
form of a summary, if it would not otherwise be possible to
conveniently examine the evidence because of the volume or
complexity of the documents in question.
Note that section 42B is repealed by this Bill. Clause 16 provides
that if a party has complied with a direction given under
section 42B before its repeal, the other party is taken to have
been given reasonable opportunity to examine or copy documents
for the purpose of section 50(2)(b).
PART 5--MISCELLANEOUS
Clause 54 provides for the operation of Schedule 1, which contains
consequential amendments to a number of other Acts which are
required following the commencement of the Evidence Act
2008.
Clause 55 provides for the automatic repeal of the amending Bill on
1 January 2011. As recommended by the Scrutiny of Acts and
Regulations Committee, all amending Acts now contain an
automatic repeal provision, which saves the time and expense of
having to repeal amending Acts in statute law revision Bills.
A note to the Clause indicates that the repeal of this Bill does not
affect in any way the operation of the amendments made by this
Bill.
SCHEDULE
PART 1
Item 1 Accident Compensation Act 1985
Item 1.1 inserts section 44(5) into the Accident Compensation
Act 1985 to provide that for the avoidance of doubt, the court
remains bound to apply Part 3.10 of the Evidence Act 2008,
which relates to privileges.
30
Item 2 Australia and New Zealand Banking Group Act 1970
Item 2.1 substitutes sections 7(2) and 19(2), and repeals
sections 8 and 20 of the Australia and New Zealand Banking
Group Act 1970. The purpose of these consequential
amendments is to align the definition of document for that Act
with the definition in the Evidence Act 2008.
Item 3 Australia and New Zealand Banking Group (NMRB) Act
1991
Item 3 makes consequential amendments to the Australia and
New Zealand Banking Group (NMRB) Act 1991.
Items 3.1, 3.2 and 3.3 insert new sections 10(2), 18(2) and 19(2),
respectively, to cross-reference the business records definition
under the Evidence Act 2008 and deem the books of account to
be the business records of the new entity.
Item 3.4 repeals sections 10, 18 and 19; the purpose of these
sections was to deem the books of account to be those of the
merged entity; these sections were necessary as the Evidence Act
1958 defined books of account as used in a person's ordinary
business.
Item 4 Bail Act 1977
Item 4.1 inserts new section 8(2) to the Bail Act 1977 to provide
that for the avoidance of doubt, the court remains bound to apply
Part 3.10 of the Evidence Act 2008, which relates to privileges.
Item 5 Bank Integration Act 1992
Item 5.1 amends section 20(1) and repeals section 20(2) of the
Bank Integration Act 1992. The purpose of these consequential
amendments is to provide that for the avoidance of doubt, the
business records provisions of the Evidence Act 2008 apply in
lieu of the Books of Account provisions that were repealed from
the Evidence Act 1958.
Item 6 Charities Act 1978
Item 6.1 amends section 8 of the Charities Act 1978.
The purpose of this consequential amendment is to align the
definition of document for that Act with the definition in the
Evidence Act 2008.
31
Item 7 Children, Youth and Families Act 2005
Item 7 makes consequential amendments to the Children, Youth
and Families Act 2005.
Items 7.1, 7.2, and 7.4 provide that, to avoid doubt, where an
existing legal professional privilege already exists, the statutory
client legal privilege under the Evidence Act 2008 also applies.
Item 7.3 inserts a new section 215(7) to provide that for the
avoidance of doubt, the court remains bound to apply Part 3.10 of
the Evidence Act 2008, which relates to privileges.
Item 7.5 inserts a new section 520(6A) to provide that, for the
avoidance of doubt, an application may still be made under
section 4(2) of the Evidence Act 2008 in a proceeding in the
Koori Court (Criminal Division), in order that Part 3.10 of the
Evidence Act 2008 apply; this reflects the VLRC
recommendation in relation to section 4G of the Magistrates
Court Act 1989. (Note that section 4 of the Evidence Act 2008
provides for the Bill to apply to all proceedings in a Victorian
court, section 4(2) specifies that while sentencing proceedings are
also included, the Act applies in such proceedings only if the
court directs the law of evidence to apply and then only in
accordance with the direction.)
Item 7.6 inserts a new section 520E(6) to provide that, for the
avoidance of doubt, an application may still be made under
section 4(2) of the Evidence Act 2008 in a proceeding in the
Neighbourhood Justice Division, in order that Part 3.10 of the
Evidence Act 2008 apply; this reflects the VLRC
recommendation in relation to section 4G of the Magistrates
Court Act 1989. (Note that section 4 of the Evidence Act 2008
provides for the Bill to apply to all proceedings in a Victorian
court, section 4(2) specifies that while sentencing proceedings are
also included, the Act applies in such proceedings only if the
court directs the law of evidence to apply and then only in
accordance with the direction.)
Item 7.7 repeals section 532(14)(a) which referred to the repealed
books of account provisions of the Evidence Act 1958.
Item 7.8 inserts a new section 607A to provide transitional
arrangements for the amendments to sections 215, 520(6A) and
520E(6); the transitional arrangements mirror the amendments to
the Magistrates' Court Act 1989 at Item 34.5:
· amended sections 520(6A) and 520E(6) do not apply to
a sentencing hearing that had commenced before the
commencement of this Bill, and that continued on or
after that day or was adjourned to a later time;
32
· amended section 215 does not apply to a hearing in the
Family Division that had commenced before the
commencement of this Bill, and that continued on or
after that day or was adjourned to a later time.
Item 8 Commissioner for Law Enforcement Data Security Act 2005
Item 8.1 amends section 12(3)(b) of the Commissioner for Law
Enforcement Data Security Act 2005, to provide that for the
avoidance of doubt, where an existing legal professional privilege
already exists, the statutory client legal privilege under the
Evidence Act 2008 also applies.
Item 9 Confiscation Act 1997
Items 9.1, 9.2 and 9.3 amend sections 33(4), 59(4) and 64(3) to
the Confiscation Act 1997. The purpose of these consequential
amendments is to provide that for the avoidance of doubt, the
court remains bound to apply Part 3.10 of the Evidence Act
2008, which relates to privileges.
Item 10 Construction Industry Long Service Leave Act 1997
Items 10.1 and 10.2 amend section 38(2) and repeal section 38(3)
of the Construction Industry Long Service Leave Act 1997.
The purpose of these consequential amendments is to provide
that for the avoidance of doubt, the business records provisions of
the Evidence Act 2008 apply in lieu of the Books of Account
provisions that were repealed from the Evidence Act 1958.
Item 11 Coroners Act 2008
Item 11 makes consequential amendments to the Coroners Act
2008.
Item 11.1 substitutes section 62(2), to provide that Parts II
(Witnesses), IIA (Use of Audio Visual and Audio Links) and III
(Proof of Documents, Proof of Facts by Documents and
Document Unavailability) of the Evidence (Miscellaneous
Provisions) Act 1958 do not apply to the Coroners Court.
Section 62 provides that the coroner holding an inquest is not
bound by the rules of evidence and many be informed and
conduct an inquest in any manner that the coroner reasonably
thinks fit, however the Coroners Court is captured by the
definition of Victorian Court within the meaning of the Evidence
Act 2008. Item 11.2 inserts new section 62(3) to provide that, for
the avoidance of doubt, the Evidence Act 2008 does not apply to
the Coroners Court.
33
Item 11.3 substitutes section 63(2), to amend the reference to the
repealed section 55AB of the Evidence Act 1958, which
provided for exceptions to the hearsay rule, with a reference to
sections 65(3), 65(4) and 65(6) of the Evidence Act 2008, which
provide for exceptions to the hearsay rule.
Item 11.4 inserts a new section 74A to enable the coroner to pay
witness and interpreter allowances and expenses.
Item 11.5 inserts a new section 105(1)(ba) to enable the State
Coroner, together with 2 or more coroners, to make rules in
relation to payments and reimbursements to witnesses and
interpreters.
Item 11.6 inserts new clause 20 to Schedule 1, to provide
transitional arrangements:
· clause 20(1) provides that the Coroners Act 2008 and
the Evidence (Crown Witnesses Expenses and
Allowances) Regulations 2004 continue to apply to
inquests and applications which were not completed on
the day this Bill commences;
· clause 20(2) provides that the Coroners Act 1958 and
the Evidence (Crown Witnesses Expenses and
Allowances) Regulations 2004 continue to apply to
inquests and investigations that had begun under the
Coroners Act 1985.
Item 12 County Court Act 1958
Item 12.1 inserts new section 4G(6) into the County Court Act
1958 to provide that, for the avoidance of doubt, an application
may still be made under section 4(2) of the Evidence Act 2008 in
a proceeding in the Koori Court Division, in order that Part 3.10
of the Evidence Act 2008 apply. This reflects the VLRC
recommendation in relation to section 4G of the Magistrates
Court Act 1989. (Note that section 4 of the Evidence Act 2008
provides for the Bill to apply to all proceedings in a Victorian
court, section 4(2) specifies that while sentencing proceedings are
also included, the Act applies in such proceedings only if the
court directs the law of evidence to apply and then only in
accordance with the direction.)
Item 12.2 inserts new section 94 to provide transitional
arrangements that mirror the amendments to the Magistrates'
Court Act 1989 at clause 34.5. It provides that amended
section 4G does not apply to a sentencing hearing that had
commenced before the commencement of this Bill, even if it
continued on or after that day or was adjourned to a later time.
34
Item 13 Crimes (Mental Impairment and Unfitness to be Tried)
Act 1997
Items 13.1 and 13.2 insert new sections 11(1A) and 38(2) into the
Crimes (Mental Impairment and Unfitness to be Tried) Act
1997. The purpose of these consequential amendments is to
provide that for the avoidance of doubt, the court remains bound
to apply Part 3.10 of the Evidence Act 2008, which relates to
privileges.
Item 14 Criminal Procedure Act 2009
Item 14.1 amends section 134(1)(b) of the Criminal Procedure
Act 2009 to refer only to the issue of a summons. Warrants to
arrest a witness can be dealt with exclusively under section 194
of the Evidence Act 2008. This avoids duplication and aligns
the Criminal Procedure Act 2009 with the Evidence Act 2008.
Item 14.2 inserts a new note after section 134 to clarify that
section 194 of the Evidence Act 2008 deals with courts powers
to issue a warrant to arrest witnesses who fail to attend.
Item 14.3 removes a reference to repealed section 55B(5) of the
Evidence Act 1958.
Item 15 Dangerous Goods Act 1985
Items 15.1 to 15.4 make consequential amendments to the
Dangerous Goods Act 1985 to provide that for the avoidance of
doubt, where an existing legal professional privilege already
exists, the statutory client legal privilege under the Evidence Act
2008 also applies. The following are amended for this purpose:
the second note at the foot of section 13C, the heading to
Division 12 of Part II, and section 19G.
Item 16 Disability Act 2006
Items 16.1 to 16.4 make consequential amendments to the
Disability Act 2006 to provide that for the avoidance of doubt,
where an existing legal professional privilege already exists, the
statutory client legal privilege under the Evidence Act 2008 also
applies. Sections 123(2)(a), 124(10), and 215 are amended for
this purpose.
Item 17 Duties Act 2000
Item 17.1 repeals section 174(3) of the Duties Act 2000, which
dealt with providing a mortgage counterpart when the mortgage
is lost or destroyed and defined a reproduction as that in the
Evidence Act 1958. This is consequentially repealed following
the repeal of the relevant provisions of the Evidence Act 1958.
35
Clause 8 of Part 2 of the Dictionary of the Evidence Act 2008
provides that a reference to a document includes a reference to a
copy, reproduction or duplicate of the document or of any part of
the document.
Item 18 Electoral Act 2002
Item 18.1 inserts new section 127(2) into the Electoral Act 2002
to provide that for the avoidance of doubt, the court remains
bound to apply Part 3.10 of the Evidence Act 2008, which relates
to privileges.
Item 19 Electricity Industry (Residual Provisions) Act 1993
Items 19.1 to 19.7 make consequential amendments to the
Electricity Industry (Residual Provisions) Act 1993 to provide
that for the avoidance of doubt, the business records provisions of
the Evidence Act 2008 apply in lieu of the Books of Account
provisions that were repealed from the Evidence Act 1958.
Sections 75(2), 110(2), 128(2), 147(2), 153N(2), 153TK(2), and
153TZB(2) are amended for this purpose. Item 19.8 repeals
sections 75(3), 110(3), 128(3), 147(3), 153N(3), 153TK(3) and
153TZB(3) for this purpose.
Item 20 Emerald Tourist Railway Act 1977
Item 20.1 amends section 38(9) of the Emerald Tourist Railway
Act 1977 to clarify that the Evidence Act 2008 also applies.
Item 21 Equipment (Public Safety) Act 1994
Items 21.1 to 21.4 make consequential amendments to the
Equipment (Public Safety) Act 1994 to provide that for the
avoidance of doubt, where an existing legal professional privilege
already exists, the statutory client legal privilege under the
Evidence Act 2008 also applies. The second note at the foot of
section 14B, the heading to Division 12 of Part 3, the heading to
section 23A, and sections 23A(a) and 23A(b), are amended for
this purpose.
Item 22 Family Violence Protection Act 2008
Item 22 makes consequential amendments to the Family
Violence Protection Act 2008.
Item 22.1 inserts new section 20(3A) to clarify that Part 3.10 of
the Evidence Act 2008 (which relates to privileges) applies to
applications made by telephone, fax or other electronic
communication. Section 20 of the Family Violence Protection
Act 2008 declares that the court is not bound by the rules of
36
evidence on an application made by telephone, fax or other
electronic communication.
Item 22.2 substitutes section 65(2), which applies the repealed
sections 23, 39, 40 and 41F of the Evidence Act 1958 to a
proceeding for a family violence intervention order, to reflect the
correct provisions in the Evidence Act 2008. The amendment
also corrects the reference to the renamed (Miscellaneous
Provisions) Act 1958 because Division 2A of Part II of the
Evidence Act 1958 is not being repealed:
· section 23 of the Evidence Act 1958 provided for
evidence of children and persons with a cognitive
impairment; corresponding provision section 13 of the
Evidence Act 2008 provides that a person is not
competent to give evidence if they do not have the
capacity to understand a question about the fact or the
person does not have the capacity to give an answer that
can be understood to a question about the fact and that
incapacity cannot be overcome;
· sections 39 and 40 of the Evidence Act 1958 provided
for indecent or scandalous questions and questions
intended to insult or annoy; corresponding provision
section 41 of the Evidence Act 2008 covers these
questions under the umbrella section relating to
improper questions;
· section 41F of the Evidence Act 1958 dealt with
improper questions in the context of child witnesses and
those with a cognitive impairment. Corresponding
provision section 40 of the Evidence Act 2008 covers
improper questions generally.
For clarity, a new note refers to relevant sections in the Evidence
Act 2008.
Item 22.3 inserts new section 67(3). The new section 67(3)
provides that leave is required despite anything to the contrary in
the Evidence Act 2008. Section 67 provides that a child (other
than an applicant for an order) must not give evidence unless the
court grants leave.
Item 22.4 inserts a new Division 4 to provide transitional
arrangements. New section 224A provides that section 20(3A)
applies to an application for an interim order made under that
section on or after the commencement of the Statute Law
Amendment (Evidence Consequential Provisions) Act 2009,
37
and that amended sections 65 and 67 do not apply to a hearing
that had commenced before this Bill.
Item 23 Film Act 2001
Items 23.1 and 23.2 amend section 53(2), and repeal
section 53(3) of the Film Act 2001. The purpose of these
consequential amendments is to provide that for the avoidance of
doubt, the business records provisions of the Evidence Act 2008
apply in lieu of the Books of Account provisions that were
repealed from the Evidence Act 1958.
Item 24 Food Act 1984
Item 24.1 inserts new section 42(4) into the Food Act 1984.
The purpose of this consequential amendment is to provide that
for the avoidance of doubt, the court remains bound to apply
Part 3.10 of the Evidence Act 2008, which relates to privileges.
Item 25 Food Amendment (Regulation Reform) Act 2009
Item 25.1 inserts new section 19BA(5) into the Food
Amendment (Regulation Reform) Act 2009. The purpose of
this consequential amendment is to provide that for the avoidance
of doubt, the court remains bound to apply Part 3.10 of the
Evidence Act 2008, which relates to privileges. Note that new
section 19BA as substituted is not yet in force, meaning that the
amendment must be made to the amending Act.
Item 26 Freedom of Information Act 1982
Item 26.1 amends section 32(1) of the Freedom of Information
Act 1982 to provide that for the avoidance of doubt, where an
existing legal professional privilege already exists, the statutory
client legal privilege under the Evidence Act 2008 also applies.
Item 27 Gambling Regulation Act 2003
Item 27.1 amends section 10.2A.11(3)(b) of the Gambling
Regulation Act 2003 to provide that for the avoidance of doubt,
where an existing legal professional privilege already exists, the
statutory client legal privilege under the Evidence Act 2008 also
applies.
Item 28 Gas Industry (Residual Provisions) Act 1994
Items 28.1 to 28.3 amend sections 81(2) and 126(2) of the Gas
Industry (Residual Provisions) Act 1994. The purpose of these
consequential amendments is to provide that for the avoidance of
doubt, the business records provisions of the Evidence Act 2008
apply in lieu of the Books of Account provisions that were
repealed from the Evidence Act 1958.
38
Item 29 Health Records Act 2001
Items 29.1 to 29.3 amend section 96 and clause 6.1(c) to
Schedule 1 of the Health Records Act 2001. The purpose of
these consequential amendments is to provide that for the
avoidance of doubt, where an existing legal professional privilege
already exists, the statutory client legal privilege under the
Evidence Act 2008 also applies.
Item 30 Health Services Act 1988
Items 30.1 to 30.5 make consequential amendments to the Health
Services Act 1988 to provide that for the avoidance of doubt, the
business records provisions of the Evidence Act 2008 apply in
lieu of the Books of Account provisions that were repealed from
the Evidence Act 1958. Sections 65K(2), 203(2), 218(2) and
260(3) are amended for this purpose; sections 65K(3), 203(3),
218(3) and 260(4) are repealed for this purpose.
Item 31 Health Services (Conciliation and Review) Act 1987
Item 31.1 amends sections 26(2)(a) and 27(10)(a) of the Health
Services (Conciliation and Review) Act 1987 to provide that for
the avoidance of doubt, where an existing legal professional
privilege already exists, the statutory client legal privilege under
the Evidence Act 2008 also applies.
Item 32 House Contracts Guarantee Act 1987
Item 32.1 amends section 63(2) of the House Contracts
Guarantee Act 1987 to provide that for the avoidance of doubt,
the business records provisions of the Evidence Act 2008 apply
in lieu of the Books of Account provisions that were repealed
from the Evidence Act 1958.
Item 33 Juries Act 2000
Items 33.1 to 33.4 make consequential amendments to the Juries
Act 2000 to reflect the scheme for oaths and affirmations in the
Evidence Act 2008. The Parliamentary Law Reform Committee
Inquiry into Oaths and Affirmations, with reference to the
Multicultural Community, recommended that the Juries Act
2000 be amended to ensure that jurors have the right to choose to
make either an oath or affirmation and that the Court is required
to inform them of this choice.
Item 33.1 substitutes Schedule 3, which provides the form for
swearing in a juror under section 42. New Schedule 3 provides
that jurors can choose to either take an oath or make an
affirmation. This mirrors Schedule 1 of the Evidence Act 2008.
39
(Note that the affirmation provisions in the Evidence Act 2008
apply to witnesses and interpreters, not jurors.)
Item 33.2 substitutes Schedule 4 which provides for the swearing
in of jurykeepers under section 49; the wording reflects new
Schedule 3.
Item 33.3 substitutes Schedule 5 which provides for the swearing
of jurors upon separation during deliberations under
section 50(2); the wording reflects new Schedule 3.
Item 33.4 inserts new clause 15 into Schedule 6 to provide
transitional arrangements. The amendments made by this Bill
apply to juries empanelled after the commencement of this Bill.
Item 34 Magistrates' Court Act 1989
Items 34.1 to 34.12 make consequential amendments to the
Magistrates' Court Act 1989.
Item 34.1 inserts new section 4G(6) to provide that, for the
avoidance of doubt, an application may still be made under
section 4(2) of the Evidence Act 2008 in a proceeding in the
Koori Court Division, in order that Part 3.10 of the Evidence Act
2008 apply; this reflects the VLRC recommendation. (Note that
section 4 of the Evidence Act 2008 provides for the Bill to apply
to all proceedings in a Victorian court, section 4(2) specifies that
while sentencing proceedings are also included, the Act applies
in such proceedings only if the court directs the law of evidence
to apply and then only in accordance with the direction.)
Item 34.2 inserts new section 4Q(6) to provide that, for the
avoidance of doubt, an application may still be made under
section 4(2) of the Evidence Act 2008 in a proceeding in the
Neighbourhood Justice Division, in order that Part 3.10 of the
Evidence Act 2008 apply; this reflects the VLRC
recommendation. (Note that section 4 of the Evidence Act 2008
provides for the Bill to apply to all proceedings in a Victorian
court, section 4(2) specifies that while sentencing proceedings are
also included, the Act applies in such proceedings only if the
court directs the law of evidence to apply and then only in
accordance with the direction.)
Item 34.3 repeals section 43(9)(a) to provide that for the
avoidance of doubt, the business records provisions of the
Evidence Act 2008 apply in lieu of the Books of Account
provisions that were repealed from the Evidence Act 1958.
40
Item 34.4 inserts new section 57A, which indicates that
provisions relating to warrants to arrest extend and apply to a
warrant to arrest issued under section 194 of the Evidence Act
2008.
Item 34.5 repeals sections 61(1)(b) and 61(5)(b) which related to
the issuing of arrest warrants in relation to witnesses who fail to
appear. This is now covered by new section 57A (as inserted by
item 34.4) and section 194 of the Evidence Act 2008.
Item 34.6 inserts a note to the end of section 61, which indicates
that section 194 of the Evidence Act 2008 provides for issuing
warrants to arrest a witness who fails to appear.
Item 34.7 inserts new section 62(3) to indicate that section 62
does not apply to warrants authorised under section 194 of the
Evidence Act 2008; section 62 enables a warrant to arrest to
include provision for bail.
Item 34.8 inserts new section 64(5) to indicate that
sections 64(2), (3) and (4) do not apply to warrants authorised
under section 194 of the Evidence Act 2008; these
subsections confer authority to do certain things relating to bail
on warrants to arrest.
Item 34.9 inserts a new section 103(2A), which clarifies that the
court conducting an arbitration remains bound to apply Part 3.10
of the Evidence Act 2008, which relates to privileges.
Item 34.10 repeals section 129, which provided that persons
giving sworn evidence must be examined on oath, enabled the
court to administer oaths, and enabled persons to produce
documents without being sworn in. Division 2--Oaths and
affirmations of Part 2.1--Witnesses covers this.
Item 34.11 substitutes references to the Evidence Act 1958 in
clause 4 of Schedule 8 with references to "that Act, the Evidence
Act 2008 or the Evidence (Miscellaneous Provisions) Act
1958".
Item 34.12 inserts new clause 42 into Schedule 8 to provide
transitional arrangements. New clause 42 provides that the
Magistrates' Court Act 1989 provisions that were in force
immediately before the commencement of this Bill, continue to
apply to a hearing that commenced before the day this Bill
commences, and that continues on or after that day or was
adjourned to a later time.
41
Item 35 Major Crime (Investigative Powers) Act 2004
Item 35.1 inserts new section 35A into the Major Crime
(Investigative Powers) Act 2004.
New section 35A preserves the Chief Examiner's power to
question and confiscate documents from the possession of
witnesses who have not been summoned, but who are present and
competent to give evidence.
This power is provided in section 11 of the Evidence Act 1958,
which is being repealed by this Bill and replaced by section 36 of
the Evidence Act 2008. The Evidence Act 2008 only applies to
courts and other bodies bound by the rules of evidence, which
does not include the Chief Examiner.
Item 36 Marine Act 1988
Item 36.1 substitutes references to the Evidence Act 1958 in
section 89(2) of the Marine Act 1988 with references to the
Evidence (Miscellaneous Provisions) Act 1958 or the Evidence
Act 2008.
Item 36.2 inserts new section 125(2A), to provide that that for the
avoidance of doubt, the court remains bound to apply Part 3.10 of
the Evidence Act 2008, which relates to privileges.
Item 37 Mineral Resources (Sustainable Development) Act 1990
Items 37.1 to 37.3 make consequential amendments to the
Mineral Resources (Sustainable Development) Act 1990 to
provide that for the avoidance of doubt, where an existing legal
professional privilege already exists, the statutory client legal
privilege under the Evidence Act 2008 also applies. The second
note at the foot of section 95A, and section 95T are amended for
this purpose.
Item 38 National Australia Bank and Bank of New Zealand Act 1997
Items 38.1 and 38.2 substitute section 11(2) and repeal
section 11(3) of the National Australia Bank and Bank of New
Zealand Act 1997. The purpose of these consequential
amendments is to provide that for the avoidance of doubt, the
business records provisions of the Evidence Act 2008 apply in
lieu of the Books of Account provisions that were repealed from
the Evidence Act 1958.
42
Item 39 National Mutual Royal Savings Bank Limited (Merger)
Act 1987
Items 39.1 and 39.2 substitute section 8(2) and repeal
section 8(3) of the National Mutual Royal Savings Bank
Limited (Merger) Act 1987. The purpose of these
consequential amendments is to provide that for the avoidance of
doubt, the business records provisions of the Evidence Act 2008
apply in lieu of the Books of Account provisions that were
repealed from the Evidence Act 1958.
Item 40 Occupational Health and Safety Act 2004
Items 40.1 to 40.3 make consequential amendments to the
Occupational Health and Safety Act 2004 to provide that for
the avoidance of doubt, where an existing legal professional
privilege already exists, the statutory client legal privilege under
the Evidence Act 2008 also applies. The second note at the foot
of section 100, and section 155, are amended for this purpose.
Item 41 Petroleum (Submerged Lands) Act 1982
Item 41.1 makes a consequential amendment to the Petroleum
(Submerged Lands) Act 1982 to provide that for the avoidance
of doubt, where an existing legal professional privilege already
exists, the statutory client legal privilege under the Evidence Act
2008 also applies. Clauses 35(1), 39(4) and 42(4) of Schedule 7
are amended for this purpose.
Item 42 Police Integrity Act 2008
Item 42.1 inserts new section 65A into the Police Integrity Act
2008.
New section 65A preserves the power of the Director, Police
Integrity, to question and confiscate documents from the
possession of witnesses who have not been summoned, but who
are present and competent to give evidence.
This power is provided in section 11 of the Evidence Act 1958,
which is being repealed by this Bill and replaced by section 36 of
the Evidence Act 2008. The Evidence Act 2008 only applies to
courts and other bodies bound by the rules of evidence, which
does not include the Director, Police Integrity.
Item 43 Port Services Act 1995
Items 43.1 to 43.3 make consequential amendments to the Port
Services Act 1995 to provide that for the avoidance of doubt, the
business records provisions of the Evidence Act 2008 apply in
lieu of the Books of Account provisions that were repealed from
43
the Evidence Act 1958. Sections 113(2) and 161(2) are amended
for this purpose; sections 113(3) and 161(3) are repealed for this
purpose.
Item 44 Project Development and Construction Management
Act 1994
Items 44.1 to 44.4 make consequential amendments to the
Project Development and Construction Management Act
1994 to provide that for the avoidance of doubt, the business
records provisions of the Evidence Act 2008 apply in lieu of the
Books of Account provisions that were repealed from the
Evidence Act 1958. Sections 58(2), 74(2) and 93(2) are
amended for this purpose; sections 58(3), 74(3) and 93(3) are
repealed for this purpose.
Item 45 Prostitution Control Act 1994
Item 45.1 inserts new section 80(3AA) into the Prostitution
Control Act 1994, to provide that for the avoidance of doubt, the
court remains bound to apply Part 3.10 of the Evidence Act
2008, which relates to privileges.
Item 46 Public Administration Act 2004
Item 46.1 amends the heading to section 111 of the Public
Administration Act 2004 to reflect the name change of the
Evidence Act 1958 to the Evidence (Miscellaneous Provisions)
Act 1958.
Item 47 Public Health and Wellbeing Act 2008
Item 47.1 inserts new section 208(6) into the Public Health and
Wellbeing Act 2008 to provide that to avoid doubt, the court
remains bound to apply Part 3.10 of the Evidence Act 2008,
which relates to privileges.
Items 47.1 and 47.2 amend section 213 of the Public Health and
Wellbeing Act 2008 and its heading to provide that to avoid
doubt, where an existing legal professional privilege already
exists, the statutory client legal privilege under the Evidence Act
2008 also applies.
Item 48 Public Records Act 1973
Item 48.1 amends the definition of record in section 2(1) of the
Public Records Act 1973 to align the definition of record for
that Act with the definition in the Evidence Act 2008.
44
Item 49 Rail Corporations Act 1996
Item 49.1 amends section 54(2) of the Rail Corporations Act
1996 to provide that for the avoidance of doubt, the business
records provisions of the Evidence Act 2008 apply in lieu of the
Books of Account provisions that were repealed from the
Evidence Act 1958.
Item 50 Road Safety Act 1986
Items 50.1 to 50.9 insert new sections 12(2A), 15A(8A),
16E(3A), 26(2A) 26A(3), 33(15A), 50(5A), 50AAB(7), 51(10C)
into the Road Safety Act 1986, to provide that for the avoidance
of doubt, the court remains bound to apply Part 3.10 of the
Evidence Act 2008, which relates to privileges.
Item 51 Sentencing Act 1991
Items 51.1 and 51.2 substitute references to the Evidence Act
1958 with references to the correct provisions of the Evidence
Act 2008, in sections 6F(2) and 6J(2) of the Sentencing Act
1991, which relate to including the offender status on the
conviction certificates.
Items 51.3 and 51.4 insert new sections 89(3F) and 89B(6) to
provide that for the avoidance of doubt, the court remains bound
to apply Part 3.10 of the Evidence Act 2008, which relates to
privileges.
Item 51.5 inserts new section 138 to provide transitional
arrangements, which are that new section 89(3F) and 89B(6) do
not apply to a hearing that had commenced before the
commencement of this Bill, even if it continued on or after that
day or was adjourned to a later time.
Item 52 Stalking Intervention Orders Act 2008
Item 52.1 inserts new section 14(3A) into the Stalking
Intervention Orders Act 2008 to clarify that Part 3.10 of the
Evidence Act 2008 (which relates to privileges) applies to
applications made by telephone, fax or other electronic
communication. Section 14(3) of the Stalking Intervention
Orders Act 2008 declares that the court is not bound by the rules
of evidence on an application made by telephone, fax or other
electronic communication.
Item 52.2 inserts new section 20(4) to provide that for the
avoidance of doubt, the court remains bound to apply Part 3.10 of
the Evidence Act 2008, which relates to privileges. Section 20
of the Stalking Intervention Orders Act 2008 indicates that
rules of evidence do not to apply in certain cases, the amendment
45
reflects the intention that the various privileges in Part 3.10 of the
Evidence Act 2008 apply to a proceeding for a stalking
intervention order.
Item 52.3 inserts new section 21(2). Section 21 provides that a
child (other than a respondent in proceedings) who is the affected
person in the proceedings or a family member of the respondent
or of the affected person, must not be present during, or called as
a witness in, those proceedings unless the court gives leave.
The new section 21(2) provides that leave is required despite
anything to the contrary in the Evidence Act 2008.
Item 52.4 inserts new section 62A to provide transitional
arrangements:
· section 14(3A) applies to an application for an interim
order made under section 14 on or after this Bill
commences;
· sections 20(4) and 21(2) do not apply to a hearing that
had commenced before this Bill.
Item 53 State Bank (Succession of Commonwealth Bank) Act 1990
Items 53.1 and 53.2 amend section 16(2) and repeals
section 16(3) of the State Bank (Succession of Commonwealth
Bank) Act 1990. The purpose of these consequential
amendments is to provide that for the avoidance of doubt, the
business records provisions of the Evidence Act 2008 apply in
lieu of the Books of Account provisions that were repealed from
the Evidence Act 1958.
Item 54 Survey Co-ordination Act 1958
Item 54.1 inserts a new section 21B to the Survey Co-ordination
Act 1958, which re-enacts section 72 (certified copies of maps)
of the Evidence Act 1958.
New section 21B(1) provides that:
· certified copies of maps, plans and documents are
admissible as evidence;
· are prima facie evidence of the same as their originals;
· are presumed to have been made by a competent
surveyor;
· that all persons acting judicially must take judicial
notice of the certification.
New section 21B(2) provides for the correct certification of the
maps, plans and documents.
46
Item 55 Terrorism (Community Protection) Act 2003
Item 55.1 inserts new section 13F(8A) into the Terrorism
(Community Protection) Act 2003 to provide that to avoid
doubt, the court remains bound to apply Part 3.10 of the
Evidence Act 2008, which relates to privileges.
Items 55.2 and 55.3 amend section 13ZT of the Terrorism
(Community Protection) Act 2003 and its heading to provide
that to avoid doubt, where an existing legal professional privilege
already exists, the statutory client legal privilege under the
Evidence Act 2008 also applies.
Item 56 The Commercial Bank of Australia Limited (Merger)
Act 1982
Items 56.1 and 56.2 amend section 10(2) and repeal section 10(3)
of The Commercial Bank of Australia Limited (Merger) Act
1982 to provide that for the avoidance of doubt, the business
records provisions of the Evidence Act 2008 apply in lieu of the
Books of Account provisions that were repealed from the
Evidence Act 1958.
Item 57 The Commercial Banking Company of Sydney Limited
(Merger) Act 1982
Items 57.1 and 57.2 amend section 10(2) and repeal section 10(3)
of The Commercial Banking Company of Sydney Limited
(Merger) Act 1982 to provide that for the avoidance of doubt,
the business records provisions of the Evidence Act 2008 apply
in lieu of the Books of Account provisions that were repealed
from the Evidence Act 1958.
Item 58 Transfer of Land Act 1958
Item 58.1 repeals the definition of reproduction in section 4; the
definition of document in the Evidence Act 2008 includes
reproductions.
Item 58.2 substitutes section 27D(7). Existing section 27D deals
with evidence for the purposes of that Act, section 27D(7)
provides that section 27 does not affect or limit Part III of the
Evidence Act 1958 or any other mode of proof of facts and
documents permitted by law. New section 27D(7) provides that
section 27 does not effect or limit any mode of proof of facts or
documents permitted by law, removing the reference to the
Evidence Act 1958.
Item 58.3 repeals section 114(4), which refers to repealed
section 67 of the Evidence Act 1958 (see above) and is no longer
required.
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Item 58.4 inserts new section 128A to provide a transitional
arrangement for the substituted section 27D(7), which is that
the previous section 27D(7), as in force immediately before its
amendment by this Bill, continues to apply to a hearing that had
commenced before this Bill commences.
Item 59 Transport Accident Act 1986
Items 59.1 and 59.2 amend section 216A (and its heading) of the
Transport Accident Act 1986, to provide that for the avoidance
of doubt, where an existing legal professional privilege already
exists, the statutory client legal privilege under the Evidence Act
2008 also applies.
Item 60 Victims of Crime Assistance Act 1996
Item 60.1 inserts new section 37(1C) into the Victims of Crime
Assistance Act 1996. New section 37(1C) provides that
section 194 of the Evidence Act 2008 applies to warrants issued
under subsection (1A). Section 37(1A) enables the Tribunal to
issue warrants in relation to witnesses who do not attend.
Item 60.2 inserts a new section 80 to provide a transitional
arrangement for this amendment; new section 37(1C) does not
apply to a hearing that had commenced before this Bill
commences.
Item 61 Victorian Plantations Corporation Act 1993
Items 61.1 and 61.2 amend section 47(2) and repeal section 47(3)
of the Victorian Plantations Corporation Act 1993 to provide
that for the avoidance of doubt, the business records provisions of
the Evidence Act 2008 apply in lieu of the Books of Account
provisions that were repealed from the Evidence Act 1958.
Item 62 Water Act 1989
Item 62.1 amends section 287T(2) to provide that for the
avoidance of doubt, the business records provisions of the
Evidence Act 2008 apply in lieu of the Books of Account
provisions that were repealed from the Evidence Act 1958.
Item 62.2 amends section 301(6) to provide that for the
avoidance of doubt, section 153 (Gazettes and other official
documents) of the Evidence Act 2008 applies in lieu of repealed
section 63 of the Evidence Act 1958, which related to proving
proclamations, orders and other instruments.
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Item 63 Water Industry Act 1994
Items 63.1 and 63.2 amend section 166(2) and repeal
section 166(3) of the Water Industry Act 1994 to provide that
for the avoidance of doubt, the business records provisions of the
Evidence Act 2008 apply in lieu of the Books of Account
provisions that were repealed from the Evidence Act 1958.
Item 64 Westpac and Bank of Melbourne (Challenge Bank) Act 1996
Items 64.1 to 64.3 make consequential amendments to the
Westpac and Bank of Melbourne (Challenge Bank) Act 1996.
Current sections 11 and 22 provide for books of account of one
entity to continue to be admissible as the books of account of a
succeeding entity, and refer to the repealed books of account
provisions in the Evidence Act 1958.
Item 64.1 substitutes sections 11(2) and 22(2). The new
subsections provide that for the avoidance of doubt, the books of
account are deemed to form part of the business records, ensuring
that the business record provisions of the Evidence Act 2008
apply in lieu of the Books of Account provisions that were
repealed from the Evidence Act 1958.
Sections 11(3) and 22(3) are repealed as they refer to repealed
provisions in the Evidence Act 1958 and are no longer
necessary.
Item 65 Whistleblowers Protection Act 2001
Items 65.1 and 65.2 amends section 10 (and its heading) of the
Whistleblowers Protection Act 2001 to provide that for the
avoidance of doubt, where an existing legal professional privilege
already exists, the statutory client legal privilege under the
Evidence Act 2008 also applies.
Item 66 Wills Act 1997
Items 66.1 and 66.2 insert new sections 22(1) and 27(1A) to the
Wills Act 1997, to provide that for the avoidance of doubt, the
court remains bound to apply Part 3.10 of the Evidence Act
2008, which relates to privileges.
Item 67 Workers Compensation Act 1958
Item 67.1 inserts new section 12(3) to the Workers
Compensation Act 1958, to provide that for the avoidance of
doubt, the court remains bound to apply Part 3.10 of the
Evidence Act 2008, which relates to privileges.
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Item 68 Working with Children Act 2005
Item 68.1 repeals section 47(3) of the Working with Children
Act 2005, which provides that section 47 (Evidentiary
provisions) does not affect the operation of the Evidence Act
1958, and is no longer necessary.
Item 68.2 inserts new section 52 to provides a transitional
arrangement for the repealed section 47(3); which is that it
continues to apply to a hearing that commenced before this Bill
commences.
PART 2
Items 1 to 59 in Part 2 of the Schedule amend Acts which retain references to
provisions remaining in the retitled Evidence Act 1958. The amendments
substitute references to the Evidence Act 1958 with the Evidence
(Miscellaneous Provisions) Act 1958. The Interpretation of Legislation
Act 1984 provides that references to renamed Acts are deemed to be a
reference to the Act renamed; these amendments are intended to promote
clarity.
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