Victorian Current Acts

[Index] [Table] [Search] [Search this Act] [Notes] [Noteup] [Previous] [Download] [Help]

EVIDENCE ACT 2008 - SCHEDULE 2

Schedule 2—Transitional provisions

Part 1—General

        1     Definitions

In this Schedule—

"commencement day "means the day this Act (other than Part 1 and the Dictionary) commences.

        2     Application of this Act on commencement day

    (1)     Except as otherwise provided by this Schedule, this Act applies to any proceeding (within the operation of section 4) commenced on or after the commencement day.

    (2)     Except as otherwise provided by this Schedule, in the case of any proceeding (within the operation of section 4) that commenced before the commencement day, this Act applies to that part of the proceeding that takes place on or after the commencement day, other than any hearing in the proceeding that commenced before the commencement day and—

        (a)     continued on or after the commencement day; or

        (b)     was adjourned until the commencement day or a day after the commencement day.

        3     Application of section 128A

Section 128A does not apply to an order made before the commencement day that would, if it were made after the commencement day, be a disclosure order within the meaning of that section.

        4     Application of Part 3.10 to disclosure requirements

    (1)     Part 3.10 does not apply in respect of—

        (a)     a process or order of the court that requires the disclosure of information or a document issued or ordered before the commencement day that would, if it were issued or ordered after the commencement day, be a disclosure requirement within the meaning of section 131A; or

        (b)     a summons or subpoena issued on or after the commencement day to give evidence or produce documents at a hearing to which clause 2(2)(a) or (b) applies.

    (2)     Despite subclause (1)(a), Part 3.10 applies to a summons or subpoena to give evidence issued before the commencement day     if the evidence is to be given at a hearing to which this Act applies.

        5     Identifications already carried out

    (1)     Section 114 does not apply in relation to an identification made before the commencement day.

    (2)     Section 115 does not apply in relation to an identification made before the commencement day.

        6     Documents and evidence produced before commencement day by processes, machines and other devices

    (1)     Section 146 has effect on and from the commencement day with respect to the production of a document or thing that occurred before the commencement day.

    (2)     Section 147 has effect on and from the commencement day with respect to the production of a document that occurred before the commencement day.

        7     Documents attested and verified before the commencement day

    (1)     Section 148 has effect on and from the commencement day with respect to the attestation, verification, signing or acknowledgement of a document that occurred before the commencement day.

    (2)     Section 149 has effect on and from the commencement day with respect to the attestation or signing of a document that occurred before the commencement day.

        8     Matters of official record published before the commencement day

    (1)     Section 153 has effect on and from the commencement day with respect to the publication of a document referred to in that section that occurred before the commencement day.

    (2)     Section 154 has effect on and from the commencement day with respect to the publication of a document referred to in that section that occurred before the commencement day.

    (3)     Section 155 has effect on and from the commencement day with respect to the signing and sealing or certification of a document referred to in that section that occurred before the commencement day.

    (4)     Section 156 has effect on and from the commencement day with respect to the sealing or certification of a document referred to in that section that occurred before the commencement day.

    (5)     Section 157 has effect on and from the commencement day with respect to the sealing or signing of a document referred to in that section that occurred before the commencement day.

    (6)     Section 158 has effect on and from the commencement day with respect to the sealing or signing and sealing of a public document referred to in that section that occurred before the commencement day.

    (7)     Section 159 has effect on and from the commencement day with respect to the publication of a document referred to in that section that occurred before the commencement day.

        9     Agreed facts

The reference in section 191(3)(a) to an agreement is taken on and from the commencement day to include a reference to an agreement entered into before the commencement day under section 149AB(3) of the Evidence Act 1958 , as in force immediately before its repeal.

        10     Application of Act to improperly or illegally obtained evidence

Section 139 does not apply in relation to a statement made or an act done before the commencement day.

Part 2—Application of notification provisions

        11     Notification provisions

    (1)         If, before the commencement day, a document of a kind referred to in a notification provision is given or served—

        (a)     in the circumstances provided for in that provision; and

        (b)     in accordance with such requirements (if any) as would apply to the giving or serving of the document under that provision on and after its commencement—

on and from the commencement day the document is taken to have been given or served in accordance with that provision.

    (2)     The following sections are notification provisions for the purposes of subclause (1)—

        (a)     section 33(2)(c);

        (b)     section 49(a);

        (c)     section 50(2)(a);

        (d)     section 67(1);

        (e)     section 68(2);

        (f)     section 73(2)(b);

        (g)     section 97;

        (h)     section 98;

              (i)     sections 168(1), (3), (5) and (6);

        (j)     section 173(1);

        (k)     sections 177(2) and 177(5).

        12     Notice of intention to adduce hearsay evidence

If a notice given before the commencement day is taken, by the operation of clause 11, to have been given under section 67(1), the period for an objection to be made under section 68 to the tender of evidence to which the notice relates is the later of the period ending—

        (a)     7 days after the commencement day; or

        (b)     21 days after the notice was given to the party concerned.

        13     Notice of intention to adduce evidence as to tendency or coincidence

    (1)     References in sections 97(1)(a) and 98(1)(a) to giving notice are taken to include references to giving notice of the kind referred to in those sections before the commencement day.

    (2)     Despite clause 11(1)(b), a notice of a kind referred to in section 97 or 98 given before the commencement day is taken to have been given in accordance with any regulations or rules made for the purposes for section 99.

        14     Time limits for making requests

    (1)         A request made before the commencement day that would, if it were made after the commencement day be a request under section 167, is taken to be such a request.

    (2)     If a notice given before the commencement day is taken, by the operation of clause 11, to have been given under section 168(1) or (3), the period for a request to be made under section 168(1) or (3) is the later of the period ending—

        (a)     7 days after the commencement day; or

        (b)     21 days after the notice was given to the party concerned.

    (3)     If a copy of a document served before the commencement day is taken, by the operation of clause 11, to have been served under section 168(5) or (6), the period for a request to be made under section 168(5) or (6) is the later of the period ending—

        (a)     7 days after the commencement day; or

        (b)     21 days after the document was served on the party concerned.

    (4)     If a request made under section 168 was received before the commencement day, in determining what is a reasonable time after receiving a request for the purposes of section 169(2), the court may take into account time passed before the commencement day.

        15     Requests under section 173

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.

        16     Proof of voluminous or complex documents

If a court has given a direction under section 42B of the Evidence Act 1958 , as in force immediately before its repeal, and a party has been provided with a copy of the evidence in the form specified in that direction, the party is taken, for the purposes of section 50(2)(b), to have been given a reasonable opportunity to examine or copy documents.

Sch. 2 Pt 3 (Heading and cls 17–20) inserted by No. 52/2012 s. 10.

Part 3—Transitional provisions for Evidence Amendment (Journalist Privilege) Act 2012

Sch. 2 cl. 17 inserted by No. 52/2012 s. 10.

        17     Definitions

In this Part—

2012 Act means the Evidence Amendment (Journalist Privilege) Act 2012 .

Sch. 2 cl. 18 inserted by No. 52/2012 s. 10.

        18     Application of Division 1C of Part 3.10

    (1)     Except as otherwise provided by this Schedule, the amendment made to Part 3.10 of this Act by section 3 of the 2012 Act applies to any proceeding commenced on or after the commencement of that section.

    (2)     Except as otherwise provided by this Schedule, in the case of any proceeding that commenced before the commencement of section 3 of the 2012 Act, the amendment made to Part 3.10 of this Act by that section applies to that part of the proceeding that takes place on or after the commencement of that section , other than any hearing in the proceeding that commenced before the commencement of that section and—

        (a)     continued on or after the commencement of that section; or

        (b)     was adjourned until the commencement of that section or a day after the commencement of that section.

Sch. 2 cl. 19 inserted by No. 52/2012 s. 10.

        19     Application of Division 1C of Part 3.10 to disclosure requirements

    (1)     The amendment made to Part 3.10 of this Act by section 3 of the 2012 Act does not apply in respect of—

        (a)     a disclosure requirement issued or ordered before the commencement of section 3 of that Act; or

        (b)     a disclosure requirement issued or ordered on or after the commencement of section 3 of that Act to give evidence or produce documents at a hearing to which clause 18(2)(a) or (b) applies.

    (2)     Despite subclause (1)(a), the amendment made to Part 3.10 of this Act by section 3 of the 2012 Act applies to a disclosure requirement issued or ordered before the commencement of section 3 of that Act if the evidence is to be given at a hearing to which the amendment made by section 3 of that Act applies.

    (3)     In this section, disclosure requirement has the same meaning as in section 131A.

Sch. 2 cl. 20 inserted by No. 52/2012 s. 10.

        20     Certificate given to a witness before commencement

    (1)     The amendment made to section 128 by section 4(3) and (4) of the 2012 Act has effect on and from the commencement of that section with respect to the giving of a certificate under a prescribed State or Territory provision that has occurred before the commencement of that section.

    (2)     The amendment made to section 128A by section 5 of the 2012 Act has effect on and from the commencement of that section with respect to the giving of a certificate under a prescribed State or Territory provision that has occurred before the commencement of that section.

Sch. 2 Pt 5 (Heading and cl. 22) inserted by No. 63/2014 s. 10.

Part 5—Transitional provision for Crimes Amendment (Abolition of Defensive Homicide) Act 2014

Sch. 2 cl. 22 inserted by No. 63/2014 s. 10.

        22     Transitional—Crimes Amendment (Abolition of Defensive Homicide) Act 2014

This Act as amended by Part 3 of the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 applies to a trial that commences (within the meaning of section 210 of the Criminal Procedure Act 2009 ) on or after the day on which Part 3 of the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 comes into operation, irrespective of when the offence is alleged to have been committed.

Sch. 2 Pt 6 (Heading and cl. 23) inserted by No. 14/2015 s. 78.

Part 6—Transitional provisions for Jury Directions Act 2015

        23     Application of Act as amended

This Act as amended by Division 2 of Part 10 of the Jury Directions Act 2015 applies to a trial that commences (within the meaning of section 210 of the Criminal Procedure Act 2009 ) on or after the day on which Division 2 of Part 10 of that Act comes into operation.

Dictionary

Section 3

Part 1—Definitions

ACT court

Note

The Commonwealth Act includes a definition of this term.

Dictionary Pt 1 def. of admission amended by No. 52/2012 s. 7.

"admission" means a previous representation that is—

        (a)     made by a person who is or becomes a party to a proceeding (including an accused in a criminal proceeding); and

        (b)     adverse to the person's interest in the outcome of the proceeding;

asserted fact is defined in section 59;

Dictionary Pt 1 def. of associated defendant amended as associated accused by No. 68/2009 s. 97(Sch. item 55.47(a)), amended by No. 68/2009 s. 97(Sch. item 55.47(b)(c)).

"associated accused", in relation to an accused in a criminal proceeding, means a person against whom a prosecution has been instituted, but not yet completed or terminated, for—

        (a)     an offence that arose in relation to the same events as those in relation to which the offence for which the accused is being prosecuted arose; or

        (b)     an offence that relates to or is connected with the offence for which the accused is being prosecuted;

"Australia" includes the external Territories;

"Australian court" means—

        (a)     the High Court; or

        (b)     a court exercising federal jurisdiction; or

        (c)     a court of a State or Territory; or

        (d)     a judge, justice or arbitrator under an Australian law; or

        (e)     a person or body authorised by an Australian law, or by consent of parties, to hear, receive and examine evidence; or

        (f)     a person or body that, in exercising a function under an Australian law, is required to apply the laws of evidence;

"Australian law" means a law of the Commonwealth, a State or a Territory;

Note

See clause 9 of Part 2 of this Dictionary for the meaning of law .

Dictionary Pt 1 def. of Australian lawyer repealed by No. 17/2014 s. 160(Sch. 2 item 39.7(a)).

    *     *     *     *     *

Dictionary Pt 1 def. of Australian legal practitioner repealed by No. 17/2014 s. 160(Sch. 2 item 39.7(a)).

    *     *     *     *     *

"Australian or overseas proceeding" means a proceeding (however described) in an Australian court or a foreign court;

"Australian Parliament" means the Parliament, the Parliament of the Commonwealth or another State or the Legislative Assembly of a Territory;

Dictionary Pt 1 def. of Australian practising certificate repealed by No. 17/2014 s. 160(Sch. 2 item 39.7(a)).

    *     *     *     *     *

Dictionary Pt 1 def. of Australian-registered foreign lawyer amended by No. 17/2014 s. 160(Sch. 2 item 39.7(c)).

Australian-registered foreign lawyer has the meaning it has in the Legal Profession Uniform Law (Victoria);

"Australian Statistician" means the Australian Statistician referred to in section 5(2) of the Australian Bureau of Statistics Act 1975 of the Commonwealth, and includes any person to whom the powers of the Australian Statistician under section 12 of the Census and Statistics Act 1905 of the Commonwealth have been delegated;

business is defined in clause 1 of Part 2 of this Dictionary;

"case" of a party means the facts in issue in respect of which the party bears the legal burden of proof;

"child" means a child of any age and includes the meaning given in clause 10(1) of Part 2 of this Dictionary;

civil penalty is defined in clause 3 of Part 2 of this Dictionary;

"civil proceeding" means a proceeding other than a criminal proceeding;

"client" is defined in section 117;

"coincidence evidence" means evidence of a kind referred to in section 98(1) that a party seeks to have adduced for the purpose referred to in that subsection;

"coincidence rule" means section 98(1);

"Commonwealth owned body corporate" means a body corporate that, were the Commonwealth a body corporate, would, for the purposes of the Corporations Act 2001 of the Commonwealth, be—

        (a)     a wholly-owned subsidiary of the Commonwealth; or

        (b)     a wholly-owned subsidiary of another body corporate that is, under this definition, a Commonwealth owned body corporate because of the application of paragraph (a) (including the application of that paragraph together with another application or other applications of this paragraph);

"Commonwealth record" means a record made by—

        (a)     a Department within the meaning of the Public Service Act 1999 of the Commonwealth; or

        (b)     the Parliament, a House of the Parliament, a committee of a House of the Parliament or a committee of the Parliament; or

        (c)     a person or body, other than a Legislative Assembly, holding office, or exercising power, under or because of the Commonwealth Constitution or a law of the Commonwealth; or

        (d)     a body or organisation other than a Legislative Assembly, whether incorporated or unincorporated, established for a public purpose—

              (i)     by or under a law of the Commonwealth or of a Territory (other than the Australian Capital Territory, the Northern Territory or Norfolk Island); or

              (ii)     by the Governor-General; or

              (iii)     by a Minister of the Commonwealth; or

        (e)     any other body or organisation that is a Commonwealth owned body corporate—

and kept or maintained by a person, body or organisation of a kind referred to in paragraph (a), (b), (c), (d) or (e), but does not include a record made by a person or body holding office, or exercising power, under or because of the Commonwealth Constitution or a law of the Commonwealth if the record was not made in connection with holding the office concerned, or exercising the power concerned;

confidential communication is defined in section 117;

"confidential document" is defined in section 117;

"court" means Victorian court;

Notes

1     Victorian court is defined in this Dictionary.

2     The Commonwealth Act does not include this definition.

"credibility" of a person who has made a representation that has been admitted in evidence means the credibility of the representation, and includes the person's ability to observe or remember facts and events about which the person made the representation;

"credibility" of a witness means the credibility of any part or all of the evidence of the witness, and includes the witness's ability to observe or remember facts and events about which the witness has given, is giving or is to give evidence;

"credibility evidence "is defined in section 101A;

"credibility rule" means section 102;

"criminal proceeding" means a prosecution for an offence and includes—

        (a)     a proceeding for the committal of a person for trial or sentence for an offence; and

        (b)     a proceeding relating to bail—

but does not include a prosecution for an offence that is a prescribed taxation offence within the meaning of Part III of the Taxation Administration Act 1953 of the Commonwealth;

cross-examination is defined in clause 2(2) of Part 2 of this Dictionary;

"cross-examiner" means a party who is cross-examining a witness;

de facto partner is defined in clause 11 of Part 2 of this Dictionary;

"document" means any record of information, and includes—

        (a)     anything on which there is writing; or

        (b)     anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; or

        (c)     anything from which sounds, images or writings can be reproduced with or without the aid of anything else; or

        (d)     a map, plan, drawing or photograph;

Note

See also clause 8 of Part 2 of this Dictionary on the meaning of "document".

"electronic communication" has the same meaning as it has in the Electronic Transactions (Victoria) Act 2000 ;

examination in chief is defined in clause 2(1) of Part 2 of this Dictionary;

"exercise" of a function includes performance of a duty;

"fax", in relation to a document, means a copy of the document that has been reproduced by facsimile telegraphy;

federal court

Note

The Commonwealth Act includes a definition of this term.

"foreign court" means any court (including any person or body authorised to take or receive evidence, whether on behalf of a court or otherwise and whether or not the person or body is empowered to require the answering of questions or the production of documents) of a foreign country or a part of such a country;

Dictionary Pt 1 def. of foreign lawyer inserted by No. 17/2014 s. 160(Sch. 2 item 39.7(d)).

"foreign lawyer" has the same meaning as it has in the Legal Profession Uniform Law (Victoria);

"function" includes power, authority or duty;

"government or official gazette" includes the Government Gazette;

Note

The definition of this term in the Commonwealth Act and New South Wales Act differs from this definition.

"Governor of a State" includes any person for the time being administering the Government of the State;

"Governor-General" means Governor-General of the Commonwealth and includes any person for the time being administering the Government of the Commonwealth;

Note

The Commonwealth Act does not include definitions of  Governor of a State and Governor-General . These definitions are covered by sections 16A and 16B of the Acts Interpretation Act 1901 of the Commonwealth.

"hearsay rule" means section 59(1);

Dictionary Pt 1 def. of identification evidence amended by No. 68/2009 s. 97(Sch. item 55.48).

"identification evidence" means evidence that is—

        (a)     an assertion by a person to the effect that an accused was, or resembles (visually, aurally or otherwise) a person who was, present at or near a place where—

              (i)     the offence for which the accused is being prosecuted was committed; or

              (ii)     an act connected to that offence was done—

at or about the time at which the offence was committed or the act was done, being an assertion that is based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time; or

        (b)     a report (whether oral or in writing) of such an assertion;

"investigating official" means—

        (a)     a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior); or

        (b)     a person appointed by or under an Australian law (other than a person who is engaged in covert investigations under the orders of a superior) whose functions include functions in respect of the prevention or investigation of offences;

"joint sitting" means—

        (a)     in relation to the Parliament of the Commonwealth—a joint sitting of the members of the Senate and of the House of Representatives convened by the Governor-General under section 57 of the Commonwealth Constitution or convened under any Act of the Commonwealth; or

        (b)     in relation to a bicameral legislature of a State—a joint sitting of both Houses of the legislature convened under a law of the State;

"judge", in relation to a proceeding, means the judge, magistrate or other person before whom the proceeding is being held;

law is defined in clause 9 of Part 2 of this Dictionary;

"leading question" means a question asked of a witness that—

        (a)     directly or indirectly suggests a particular answer to the question; or

        (b)     assumes the existence of a fact the existence of which is in dispute in the proceeding and as to the existence of which the witness has not given evidence before the question is asked;

Dictionary Pt 1 def. of legal counsel repealed by No. 17/2014 s. 160(Sch. 2 item 39.7(b)).

    *     *     *     *     *

"Legislative Assembly" means any present or former Legislative Assembly of a Territory, and includes the Australian Capital Territory House of Assembly;

"member" of the Australian Federal Police includes a special member or a staff member of the Australian Federal Police;

Dictionary Pt 1 def. of non-participant registered foreign lawyer inserted by No. 17/2014 s. 160(Sch. 2 item 39.7(d)).

non-participant registered foreign lawyer has the same meaning as it has in Schedule 3 to the Legal Profession Uniform Law (Victoria);

NSW court

Note

The New South Wales Act includes this definition.

"offence" means an offence against or arising under an Australian law;

"opinion rule" means section 76;

Dictionary Pt 1 def. of overseas- registered foreign lawyer repealed by No. 17/2014 s. 160(Sch. 2 item 39.7(a)).

    *     *     *     *     *

"parent" includes the meaning given in clause 10(2) of Part 2 of this Dictionary;

picture identification evidence is defined in section 115;

"police officer" means—

        (a)     a member of the Australian Federal Police; or

        (b)     a member of the police force of a State or Territory;

"postal article" has the same meaning as in the Australian Postal Corporation Act 1989 of the Commonwealth;

"previous representation" means a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced;

"prior consistent statement" of a witness means a previous representation that is consistent with evidence given by the witness;

"prior inconsistent statement" of a witness means a previous representation that is inconsistent with evidence given by the witness;

"probative value" of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue;

"prosecutor" means a person who institutes or is responsible for the conduct of a prosecution;

"public document" means a document that—

        (a)     forms part of the records of the Crown in any of its capacities; or

        (b)     forms part of the records of the government of a foreign country; or

        (c)     forms part of the records of a person or body holding office or exercising a function under or because of the Commonwealth Constitution, an Australian law or a law of a foreign country; or

        (d)     is being kept by or on behalf of the Crown, such a government or such a person or body—

and includes the records of the proceedings of, and papers presented to—

        (e)     an Australian Parliament, a House of an Australian Parliament, a committee of such a House or a committee of an Australian Parliament; and

        (f)     a legislature of a foreign country, including a House or committee (however described) of such a legislature;

re-examination is defined in clause 2(3) and (4) of Part 2 of this Dictionary;

"representation" includes—

        (a)     an express or implied representation (whether oral or in writing); or

        (b)     a representation to be inferred from conduct; or

        (c)     a representation not intended by its maker to be communicated to or seen by another person; or

        (d)     a representation that for any reason is not communicated;

"seal" includes a stamp;

"tendency evidence" means evidence of a kind referred to in section 97(1) that a party seeks to have adduced for the purpose referred to in that subsection;

"tendency rule" means section 97(1);

"traditional laws and customs "of an Aboriginal or Torres Strait Islander group (including a kinship group) includes any of the traditions, customary laws, customs, observances, practices, knowledge and beliefs of the group;

"Victorian court" means—

        (a)     the Supreme Court; or

        (b)     any other court created by Parliament—

and includes any person or body (other than a court) that, in exercising a function under the law of the State, is required to apply the laws of evidence;

Note

The Commonwealth Act and New South Wales Act do not include this definition.

visual identification evidence is defined in section 114;

"witness" includes the meaning given in clause 7 of Part 2 of this Dictionary.

Part 2—Other expressions

        1     References to businesses

    (1)     A reference in this Act to a "business" includes a reference to the following—

        (a)     a profession, calling, occupation, trade or undertaking;

        (b)     an activity engaged in or carried on by the Crown in any of its capacities;

        (c)     an activity engaged in or carried on by the government of a foreign country;

        (d)     an activity engaged in or carried on by a person or body holding office or exercising power under or because of the Commonwealth Constitution, an Australian law or a law of a foreign country, being an activity engaged in or carried on in the performance of the functions of the office or in the exercise of the power (otherwise than in a private capacity);

        (e)     the proceedings of an Australian Parliament, a House of an Australian Parliament, a committee of such a House or a committee of an Australian Parliament;

        (f)     the proceedings of a legislature of a foreign country, including a House or committee (however described) of such a legislature.

    (2)     A reference in this Act to a business also includes a reference to—

        (a)     a business that is not engaged in or carried on for profit; or

        (b)     a business engaged in or carried on outside Australia.

        2     References to examination in chief, cross-examination and re‑examination

    (1)     A reference in this Act to examination in chief of a witness is a reference to the questioning of a witness by the party who called the witness to give evidence, not being questioning that is re‑examination.

    (2)     A reference in this Act to cross-examination of a witness is a reference to the questioning of a witness by a party other than the party who called the witness to give evidence.

    (3)     A reference in this Act to re-examination of a witness is a reference to the questioning of a witness by the party who called the witness to give evidence, being questioning (other than further examination in chief with the leave of the court) conducted after the cross-examination of the witness by another party.

    (4)     If a party has recalled a witness who has already given evidence, a reference in this Act to re-examination of a witness does not include a reference to the questioning of the witness by that party before the witness is questioned by another party.

        3     References to civil penalties

For the purposes of this Act, a person is taken to be liable to a civil penalty if, in an Australian or overseas proceeding (other than a criminal proceeding), the person would be liable to a penalty arising under an Australian law or a law of a foreign country.

        4     Unavailability of persons

Dictionary Pt 2 cl. 4(1) amended by No. 69/2009 s. 52, substituted by No. 52/2012 s. 8.

    (1)     For the purposes of this Act, a person is taken not to be available to give evidence about a fact if—

        (a)     the person is dead; or

        (b)     the person is, for any reason other than the application of section 16 (Competence and compellability—judges and jurors), not competent to give the evidence ; or

        (c)     the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability; or

        (d)     it would be unlawful for the person to give the evidence; or

        (e)     a provision of this Act prohibits the evidence being given; or

        (f)     all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or secure his or her attendance, but without success; or

        (g)     all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.

    (2)     In all other cases the person is taken to be available to give evidence about the fact.

        5     Unavailability of documents and things

For the purposes of this Act, a document or thing is taken not to be available to a party if and only if—

        (a)     it cannot be found after reasonable inquiry and search by the party; or

        (b)     it was destroyed by the party, or by a person on behalf of the party, otherwise than in bad faith, or was destroyed by another person; or

        (c)     it would be impractical to produce the document or thing during the course of the proceeding; or

        (d)     production of the document or thing during the course of the proceeding could render a person liable to conviction for an offence; or

        (e)     it is not in the possession or under the control of the party and—

              (i)     it cannot be obtained by any judicial procedure of the court; or

              (ii)     it is in the possession or under the control of another party to the proceeding concerned who knows or might reasonably be expected to know that evidence of the contents of the document, or evidence of the thing, is likely to be relevant in the proceeding; or

              (iii)     it was in the possession or under the control of such a party at a time when that party knew or might reasonably be expected to have known that such evidence was likely to be relevant in the proceeding.

        6     Representations in documents

For the purposes of this Act, a representation contained in a document is taken to have been made by a person if—

        (a)     the document was written, made or otherwise produced by the person; or

        (b)     the representation was recognised by the person as his or her representation by signing, initialling or otherwise marking the document.

        7     Witnesses

    (1)     A reference in this Act to a witness includes a reference to a party giving evidence.

    (2)     A reference in this Act to a witness who has been called by a party to give evidence includes a reference to the party giving evidence.

Dictionary Pt 2 cl. 7(3) amended by No. 68/2009 s. 97(Sch. item 55.49).

    (3)     A reference in this clause to a party includes an accused in a criminal proceeding.

        8     References to documents

A reference in this Act to a document includes a reference to—

        (a)     any part of the document; or

        (b)     any copy, reproduction or duplicate of the document or of any part of the document; or

        (c)     any part of such a copy, reproduction or duplicate.

        8A     References to offices etc.

In this Act—

        (a)     a reference to a person appointed or holding office under or because of an Australian law or a law of the Commonwealth includes a reference to an APS employee within the meaning of the Public Service Act 1999 of the Commonwealth; and

        (b)     in that context, a reference to an office is a reference to a position occupied by the APS employee concerned, and a reference to an officer includes a reference to a Secretary, or APS employee, within the meaning of the Act.

        9     References to laws

    (1)     A reference in this Act to a law of the Commonwealth, a State, a Territory or a foreign country is a reference to a law (whether written or unwritten) of or in force in that place.

    (2)     A reference in this Act to an Australian law is a reference to an Australian law (whether written or unwritten) of or in force in Australia.

        10     References to children and parents

    (1)     A reference in this Act to a child of a person includes a reference to—

        (a)     an adopted child or ex-nuptial child of the person; or

        (b)     a child living with the person as if the child were a member of the person's family.

    (2)     A reference in this Act to a parent of a person includes a reference to—

        (a)     an adoptive parent of the person; or

        (b)     if the person is an ex-nuptial child—the person's natural father; or

        (c)     the person with whom a child is living as if the child were a member of the person's family.

        11     References to de facto partners

    (1)     A reference in this Act to a de facto partner of a person is a reference to a person who is in a de facto relationship with the person.

    (2)     A person is in a de facto relationship with another person if the two persons have a relationship as a couple and are not legally married.

    (3)     In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as are relevant in the circumstances of the particular case—

        (a)     the duration of the relationship;

        (b)     the nature and extent of their common residence;

        (c)     the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

        (d)     the ownership, use and acquisition of their property;

        (e)     the degree of mutual commitment to a shared life;

        (f)     the care and support of children;

        (g)     the reputation and public aspects of the relationship.

    (4)     No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether two persons have a relationship as a couple.

    (5)     For the purposes of subclause (3), the following matters are irrelevant—

        (a)     whether the persons are different sexes or the same sex;

        (b)     whether either of the persons is legally married to someone else or in another de facto relationship.

Dictionary Pt 2 cl. 11(6) amended by No. 52/2012 s. 9.

    (6)     Despite subclauses (3) and (4), a person is in a de facto relationship with another person if those two persons are in a registered domestic relationship within the meaning of the Relationships Act 2008 .

Note

The Commonwealth Act and New South Wales Act do not include subclause (6).

ÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍ



AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback