Evidence Act 1995 (Cth)
This is a compilation of the
The notes at the end of this compilation (the
The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Register ( The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the Register for the compiled law.
If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.
For more information about any editorial changes made in this compilation, see the endnotes.
If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the Register for the compiled law.
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Contents
INTRODUCTORY NOTE
Outline of this Act This Act sets out the federal rules of evidence. Generally speaking, the Act applies to proceedings in federal courts (see section 4), but some provisions extend beyond such proceedings (see Note 2 to subsection 4(1)).
Chapter 2 is about how evidence is adduced in proceedings.
Chapter 3 is about admissibility of evidence in proceedings.
Chapter 4 is about proof of matters in proceedings.
Chapter 5 deals with miscellaneous matters.
The Dictionary at the end of this Act defines terms and expressions used in this Act.
Related legislation This Act is in most respects uniform with the following State and Territory Acts:
(a) the
Evidence Act 1995 (NSW);(b) the
Evidence Act 2001 (Tas.);(c) the
Evidence Act 2008 (Vic.);(d) the
Evidence Act 2011 (ACT);(e) the
Evidence (National Uniform Legislation) Act 2011 (NT).While these Acts are in most respects identical to this Act, there are differences. The explanatory memorandum to the Civil Law and Justice Legislation Amendment Bill 2014 includes a table setting out the differences as at 8 July 2014. An updated version of the table is maintained by the Attorney‑General’s Department on its website ( level="2" section-type="Part">
Part 1.1 Formal matters 1 Short title This Act may be cited as the
Evidence Act 1995 .2 Commencement
(1) This Part and the Dictionary at the end of this Act commence on the day on which this Act receives the Royal Assent.
(2) Subject to subsection (3), the remaining provisions of this Act commence on a day or days to be fixed by Proclamation.
(3) If a provision referred to in subsection (2) does not commence under that subsection before 18 April 1995, it commences on that day.
3 Definitions
(1) Expressions used in this Act (or in a particular provision of this Act) that are defined in the Dictionary at the end of this Act have the meanings given to them in the Dictionary.
Note: Some expressions used in this Act are defined in the
Acts Interpretation Act 1901 , and have the meanings given to them in that Act.(1A) The Dictionary at the end of this Act is part of this Act.
(2) Notes included in this Act are explanatory notes and do not form part of this Act.
(3) Definitions in this Act of expressions used in this Act apply to its construction except insofar as the context or subject matter otherwise indicates or requires.
Part 1.2 Application of this Act 4 Courts and proceedings to which Act applies
(1) This Act applies to all proceedings in a federal court, including proceedings that:
(a) relate to bail; or
(b) are interlocutory proceedings or proceedings of a similar kind; or
(c) are heard in chambers; or
(d) subject to subsection (2), relate to sentencing.
Note 2:
Federal court is defined in the Dictionary. The definition includes persons or bodies required to apply the laws of evidence.Note 3: Some provisions of this Act extend beyond proceedings in federal courts. These provisions deal with:
• extension of specified provisions to cover proceedings in all Australian courts (section 5);
• faith and credit to be given to documents properly authenticated (section 185);
• swearing of affidavits for use in Australian courts exercising federal jurisdiction or similar jurisdiction (section 186);
• abolition of the privilege against self‑incrimination for bodies corporate (section 187).
Note 4: See section 79 of the
Judiciary Act 1903 for the application of this Act to proceedings in a State court exercising federal jurisdiction.(2) If such a proceeding relates to sentencing:
(a) this Act applies only if the court directs that the law of evidence applies in the proceeding; and
(b) if the court specifies in the direction that the law of evidence applies only in relation to specified matters—the direction has effect accordingly.
(3) The court must make a direction if:
(a) a party to the proceeding applies for such a direction in relation to the proof of a fact; and
(b) in the court’s opinion, the proceeding involves proof of that fact, and that fact is or will be significant in determining a sentence to be imposed in the proceeding.
(4) The court must make a direction if the court considers it appropriate to make such a direction in the interests of justice.
(5) Subject to subsection (5A), the provisions of this Act (other than sections 185, 186 and 187) do not apply to:
(a) an appeal from a court of a State, including an appeal from a court of a State exercising federal jurisdiction; or
(b) an appeal from a court of the Australian Capital Territory, the Northern Territory or an external Territory; or
(e) a review of a decision or order of a magistrate and any appeal from such a review;
except so far as the provisions apply to proceedings in all Australian courts.
(5A) Despite subsection (5), this Act applies to an appeal to the Federal Circuit and Family Court of Australia (Division 1) from a court of summary jurisdiction of a State or Territory exercising jurisdiction under the
Family Law Act 1975 .5 Extended application of certain provisions The provisions of this Act referred to in the Table apply to all proceedings in an Australian court, including proceedings that:
(a) relate to bail; or
(b) are interlocutory proceedings or proceedings of a similar kind; or
(c) are heard in chambers; or
(d) relate to sentencing.
TABLE
Provisions of this Act
Subject matter Subsection 70(2)
Evidence of tags and labels in Customs prosecutions and Excise prosecutions
Section 143
Matters of law
Section 150
Seals and signatures
Section 153
Gazettes and other official documents
Section 154
Documents published by authority of Parliaments etc.
Section 155
Official records
Section 155A
Commonwealth documents
Section 157
Public documents relating to court processes
Section 158
Evidence of certain public documents
Section 159
Official statistics
Section 163
Proof of letters having been sent by Commonwealth agencies
Section 182
Commonwealth records, postal articles sent by Commonwealth agencies and certain Commonwealth documents
Note:
Australian court is defined in the Dictionary to cover all courts in Australia. The definition extends to persons and bodies that take evidence or that are required to apply the laws of evidence.6 Territories This Act extends to each external Territory.
7 Act binds Crown This Act binds the Crown in all its capacities.
8 Operation of other Acts etc.
(1) This Act does not affect the operation of the provisions of any other Act, other than sections 68, 79, 80 and 80A of the
Judiciary Act 1903 .(2) This Act does not affect the operation of regulations that:
(a) are made under an Act other than this Act; and
(b) are in force on the commencement of this section.
However, this subsection ceases to apply to a regulation once it is amended after that commencement.
(3) This Act has effect subject to the
Corporations Act 2001 and theAustralian Securities and Investments Commission Act 2001 .8A Application of the Criminal Code Chapter 2 of the
Criminal Code applies to all offences against this Act.Note: Chapter 2 of the
Criminal Code sets out the general principles of criminal responsibility.9 Effect of Act on other laws
(1) For the avoidance of doubt, this Act does not affect an Australian law so far as the law relates to a court’s power to dispense with the operation of a rule of evidence or procedure in an interlocutory proceeding.
(2) For the avoidance of doubt, this Act does not affect a law of a State or Territory so far as the law relates to:
(a) admission or use of evidence of reasons for a decision of a member of a jury, or of the deliberations of a member of a jury in relation to such a decision, in a proceeding by way of appeal from a judgment, decree, order or sentence of the relevant court; or
(b) bail; or
(c) any requirement for admission of evidence in support of an alibi.
(3) For the avoidance of doubt, this Act does not affect a law of a State or Territory so far as the law provides for:
(a) the operation of a legal or evidential presumption (except so far as this Act is, expressly or by necessary intendment, inconsistent with the presumption); or
(b) the admissibility of a document to depend on whether stamp duty has been paid; or
(c) a requirement that notice must be given before evidence may be adduced; or
(d) evidentiary effect to be given to a certificate or other document issued under that or any other law of the State or Territory; or
(e) proof of title to property (other than by a means provided for by this Act that is applicable to proof of title to property).
10 Parliamentary privilege preserved
(1) This Act does not affect the law relating to the privileges of any Australian Parliament or any House of any Australian Parliament.
(2) In particular, subsection 15(2) does not affect, and is in addition to, the law relating to such privileges.
11 General powers of a court
(1) The power of a court to control the conduct of a proceeding is not affected by this Act, except so far as this Act provides otherwise expressly or by necessary intendment.
(2) In particular, the powers of a court with respect to abuse of process in a proceeding are not affected.
Chapter 2 Adducing evidence
INTRODUCTORY NOTE
Outline of this Chapter This Chapter is about ways in which evidence is adduced.
Part 2.1 is about adducing evidence from witnesses.
Part 2.2 is about adducing documentary evidence.
Part 2.3 is about adducing other forms of evidence.
Part 2.1 Witnesses Division 1 Competence and compellability of witnesses 12 Competence and compellability Except as otherwise provided by this Act:
(a) every person is competent to give evidence; and
(b) a person who is competent to give evidence about a fact is compellable to give that evidence.
13 Competence: lack of capacity
(1) A person is not competent to give evidence about a fact if, for any reason (including a mental, intellectual or physical disability):
(a) the person does not have the capacity to understand a question about the fact; or
(b) 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.
Note: See sections 30 and 31 for examples of assistance that may be provided to enable witnesses to overcome disabilities.
(2) A person who, because of subsection (1), is not competent to give evidence about a fact may be competent to give evidence about other facts.
(3) A person who is competent to give evidence about a fact is not competent to give sworn evidence about the fact if the person does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence.
(4) A person who is not competent to give sworn evidence about a fact may, subject to subsection (5), be competent to give unsworn evidence about the fact.
(5) A person who, because of subsection (3), is not competent to give sworn evidence is competent to give unsworn evidence if the court has told the person:
(a) that it is important to tell the truth; and
(b) that he or she may be asked questions that he or she does not know, or cannot remember, the answer to, and that he or she should tell the court if this occurs; and
(c) that he or she may be asked questions that suggest certain statements are true or untrue and that he or she should agree with the statements that he or she believes are true and should feel no pressure to agree with statements that he or she believes are untrue.
(6) It is presumed, unless the contrary is proved, that a person is not incompetent because of this section.
(7) Evidence that has been given by a witness does not become inadmissible merely because, before the witness finishes giving evidence, he or she dies or ceases to be competent to give evidence.
(8) For the purpose of determining a question arising under this section, the court may inform itself as it thinks fit, including by obtaining information from a person who has relevant specialised knowledge based on the person’s training, study or experience.
14 Compellability: reduced capacity A person is not compellable to give evidence on a particular matter if the court is satisfied that:
(a) substantial cost or delay would be incurred in ensuring that the person would have the capacity to understand a question about the matter or to give an answer that can be understood to a question about the matter; and
(b) adequate evidence on that matter has been given, or will be able to be given, from one or more other persons or sources.
15 Compellability: Sovereign and others
(1) None of the following is compellable to give evidence:
(a) the Sovereign;
(b) the Governor‑General;
(c) the Governor of a State;
(d) the Administrator of a Territory;
(e) a foreign sovereign or the Head of State of a foreign country.
(2) A member of a House of an Australian Parliament is not compellable to give evidence if the member would, if compelled to give evidence, be prevented from attending:
(a) a sitting of that House or a joint sitting of that Parliament; or
(b) a meeting of a committee of that House or that Parliament, being a committee of which he or she is a member.
16 Competence and compellability: judges and jurors
(1) A person who is a judge or juror in a proceeding is not competent to give evidence in that proceeding. However, a juror is competent to give evidence in the proceeding about matters affecting conduct of the proceeding.
(2) A person who is or was a judge in an Australian or overseas proceeding is not compellable to give evidence about that proceeding unless the court gives leave.
17 Competence and compellability: defendants in criminal proceedings
(1) This section applies only in a criminal proceeding.
(2) A defendant is not competent to give evidence as a witness for the prosecution.
(3) An associated defendant is not compellable to give evidence for or against a defendant in a criminal proceeding, unless the associated defendant is being tried separately from the defendant.
(4) If a witness is an associated defendant who is being tried jointly with the defendant in the proceeding, the court is to satisfy itself (if there is a jury, in the jury’s absence) that the witness is aware of the effect of subsection (3).
Note:
Associated defendant is defined in the Dictionary.18 Compellability of spouses and others in criminal proceedings generally
(1) This section applies only in a criminal proceeding.
(2) A person who, when required to give evidence, is the spouse, de facto partner, parent or child of a defendant may object to being required:
(a) to give evidence; or
(b) to give evidence of a communication between the person and the defendant;
as a witness for the prosecution.
(3) The objection is to be made before the person gives the evidence or as soon as practicable after the person becomes aware of the right so to object, whichever is the later.
(4) If it appears to the court that a person may have a right to make an objection under this section, the court is to satisfy itself that the person is aware of the effect of this section as it may apply to the person.
(5) If there is a jury, the court is to hear and determine any objection under this section in the absence of the jury.
(6) A person who makes an objection under this section to giving evidence or giving evidence of a communication must not be required to give the evidence if the court finds that:
(a) there is a likelihood that harm would or might be caused (whether directly or indirectly) to the person, or to the relationship between the person and the defendant, if the person gives the evidence; and
(b) the nature and extent of that harm outweighs the desirability of having the evidence given.
(7) Without limiting the matters that may be taken into account by the court for the purposes of subsection (6), it must take into account the following:
(a) the nature and gravity of the offence for which the defendant is being prosecuted;
(b) the substance and importance of any evidence that the person might give and the weight that is likely to be attached to it;
(c) whether any other evidence concerning the matters to which the evidence of the person would relate is reasonably available to the prosecutor;
(d) the nature of the relationship between the defendant and the person;
(e) whether, in giving the evidence, the person would have to disclose matter that was received by the person in confidence from the defendant.
(8) If an objection under this section has been determined, the prosecutor may not comment on:
(a) the objection; or
(b) the decision of the court in relation to the objection; or
(c) the failure of the person to give evidence.
20 Comment on failure to give evidence
(1) This section applies only in a criminal proceeding for an indictable offence.
(2) The judge or any party (other than the prosecutor) may comment on a failure of the defendant to give evidence. However, unless the comment is made by another defendant in the proceeding, the comment must not suggest that the defendant failed to give evidence because the defendant had, or believed that he or she had, committed the offence concerned.
(3) The judge or any party (other than the prosecutor) may comment on a failure to give evidence by a person who, at the time of the failure, was:
(a) the defendant’s spouse or de facto partner; or
(b) a parent or child of the defendant.
(4) However, unless the comment is made by another defendant in the proceeding, a comment of a kind referred to in subsection (3) must not suggest that the spouse, de facto partner, parent or child failed to give evidence because:
(a) the defendant had committed the offence concerned; or
(b) the spouse, de facto partner, parent or child believed that the defendant had committed the offence concerned.
(5) If:
(a) 2 or more persons are being tried together for an indictable offence; and
(b) comment is made by any of those persons on the failure of any of those persons or of the spouse or de facto partner, or a parent or child, of any of those persons to give evidence;
the judge may, in addition to commenting on the failure to give evidence, comment on any comment of a kind referred to in paragraph (b).
Division 2 Oaths and affirmations 21 Sworn evidence of witnesses to be on oath or affirmation
(1) A witness in a proceeding must either take an oath, or make an affirmation, before giving evidence.
(2) Subsection (1) does not apply to a person who gives unsworn evidence under section 13.
(3) A person who is called merely to produce a document or thing to the court need not take an oath or make an affirmation before doing so.
(4) The witness is to take the oath, or make the affirmation, in accordance with the appropriate form in the Schedule or in a similar form.
(5) Such an affirmation has the same effect for all purposes as an oath.
(1) A person must either take an oath, or make an affirmation, before acting as an interpreter in a proceeding.
(2) The person is to take the oath, or make the affirmation, in accordance with the appropriate form in the Schedule or in a similar form.
(3) Such an affirmation has the same effect for all purposes as an oath.
(1) A person who is to be a witness or act as an interpreter in a proceeding may choose whether to take an oath or make an affirmation.
(2) The court is to inform the person that he or she has this choice.
(3) The court may direct a person who is to be a witness to make an affirmation if:
(a) the person refuses to choose whether to take an oath or make an affirmation; or
(b) it is not reasonably practicable for the person to take an appropriate oath.
(1) It is not necessary that a religious text be used in taking an oath.
(2) An oath is effective for the purposes of this Division even if the person who took it:
(a) did not have a religious belief or did not have a religious belief of a particular kind; or
(b) did not understand the nature and consequences of the oath.
The court may make such orders as it considers just in relation to:
(a) the way in which witnesses are to be questioned; and
(b) the production and use of documents and things in connection with the questioning of witnesses; and
(c) the order in which parties may question a witness; and
(d) the presence and behaviour of any person in connection with the questioning of witnesses.
A party may question any witness, except as provided by this Act.
Unless the court otherwise directs:
(a) cross‑examination of a witness is not to take place before the examination in chief of the witness; and
(b) re‑examination of a witness is not to take place before all other parties who wish to do so have cross‑examined the witness.
(1) A party may question a witness in any way the party thinks fit, except as provided by this Chapter or as directed by the court.
(2) A court may, on its own motion or on the application of the party that called the witness, direct that the witness give evidence wholly or partly in narrative form.
(3) Such a direction may include directions about the way in which evidence is to be given in that form.
(4) Evidence may be given in the form of charts, summaries or other explanatory material if it appears to the court that the material would be likely to aid its comprehension of other evidence that has been given or is to be given.
A witness may give evidence about a fact through an interpreter unless the witness can understand and speak the English language sufficiently to enable the witness to understand, and to make an adequate reply to, questions that may be put about the fact.
(1) A witness who cannot hear adequately may be questioned in any appropriate way.
(2) A witness who cannot speak adequately may give evidence by any appropriate means.
(3) The court may give directions concerning either or both of the following:
(a) the way in which a witness may be questioned under subsection (1);
(b) the means by which a witness may give evidence under subsection (2).
(4) This section does not affect the right of a witness to whom this section applies to give evidence about a fact through an interpreter under section 30.
(1) A witness must not, in the course of giving evidence, use a document to try to revive his or her memory about a fact or opinion unless the court gives leave.
(2) Without limiting the matters that the court may take into account in deciding whether to give leave, it is to take into account:
(a) whether the witness will be able to recall the fact or opinion adequately without using the document; and
(b) whether so much of the document as the witness proposes to use is, or is a copy of, a document that:
(i) was written or made by the witness when the events recorded in it were fresh in his or her memory; or
(ii) was, at such a time, found by the witness to be accurate.
(3) If a witness has, while giving evidence, used a document to try to revive his or her memory about a fact or opinion, the witness may, with the leave of the court, read aloud, as part of his or her evidence, so much of the document as relates to that fact or opinion.
(4) The court is, on the request of a party, to give such directions as the court thinks fit to ensure that so much of the document as relates to the proceeding is produced to that party.
(1) Despite section 32, in any criminal proceeding, a police officer may give evidence in chief for the prosecution by reading or being led through a written statement previously made by the police officer.
(2) Evidence may not be so given unless:
(a) the statement was made by the police officer at the time of or soon after the occurrence of the events to which it refers; and
(b) the police officer signed the statement when it was made; and
(c) a copy of the statement had been given to the person charged or to his or her Australian legal practitioner or legal counsel a reasonable time before the hearing of the evidence for the prosecution.
(3) A reference in this section to a police officer includes a reference to a person who, at the time the statement concerned was made, was a police officer.
(1) The court may, on the request of a party, give such directions as are appropriate to ensure that specified documents and things used by a witness otherwise than while giving evidence to try to revive his or her memory are produced to the party for the purposes of the proceeding.
(2) The court may refuse to admit the evidence given by the witness so far as it concerns a fact as to which the witness so tried to revive his or her memory if, without reasonable excuse, the directions have not been complied with.
(1) A party is not to be required to tender a document only because the party, whether under this Act or otherwise:
(a) called for the document to be produced to the party; or
(b) inspected it when it was so produced.
(2) The party who produces a document so called for is not entitled to tender it only because the party to whom it was produced, or who inspected it, fails to tender it.
(1) The court may order a person who:
(a) is present at the hearing of a proceeding; and
(b) is compellable to give evidence in the proceeding;
to give evidence and to produce documents or things even if a subpoena or other process requiring the person to attend for that purpose has not been duly served on the person.
(2) A person so ordered to give evidence or to produce documents or things is subject to the same penalties and liabilities as if the person had been duly served with such a subpoena or other process.
(3) A party who inspects a document or thing produced to the court because of subsection (1) need not use the document in evidence.
(1) A leading question must not be put to a witness in examination in chief or in re‑examination unless:
(a) the court gives leave; or
(b) the question relates to a matter introductory to the witness’s evidence; or
(c) no objection is made to the question and (leaving aside the party conducting the examination in chief or re‑examination) each other party to the proceeding is represented by an Australian legal practitioner, legal counsel or prosecutor; or
(d) the question relates to a matter that is not in dispute; or
(e) if the witness has specialised knowledge based on the witness’s training, study or experience—the question is asked for the purpose of obtaining the witness’s opinion about a hypothetical statement of facts, being facts in respect of which evidence has been, or is intended to be, given.
(2) Unless the court otherwise directs, subsection (1) does not apply in civil proceedings to a question that relates to an investigation, inspection or report that the witness made in the course of carrying out public or official duties.
(3) Subsection (1) does not prevent a court from exercising power under rules of court to allow a written statement or report to be tendered or treated as evidence in chief of its maker.
Note:
Leading question is defined in the Dictionary.
(1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross‑examining the witness, about:
(a) evidence given by the witness that is unfavourable to the party; or
(b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence; or
(c) whether the witness has, at any time, made a prior inconsistent statement.
(2) Questioning a witness under this section is taken to be cross‑examination for the purposes of this Act (other than section 39).
(3) The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness’s credibility.
Note: The rules about admissibility of evidence relevant only to credibility are set out in Part 3.7.
(4) Questioning under this section is to take place before the other parties cross‑examine the witness, unless the court otherwise directs.
(5) If the court so directs, the order in which the parties question the witness is to be as the court directs.
(6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account:
(a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave; and
(b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party.
(7) A party is subject to the same liability to be cross‑examined under this section as any other witness if:
(a) a proceeding is being conducted in the name of the party by or on behalf of an insurer or other person; and
(b) the party is a witness in the proceeding.
On re‑examination:
(a) a witness may be questioned about matters arising out of evidence given by the witness in cross‑examination; and
(b) other questions may not be put to the witness unless the court gives leave.
A party is not to cross‑examine a witness who has been called in error by another party and has not been questioned by that other party about a matter relevant to a question to be determined in the proceeding.
(1) The court must disallow a question put to a witness in cross‑examination, or inform the witness that it need not be answered, if the court is of the opinion that the question (referred to as a
disallowable question ):
(a) is misleading or confusing; or
(b) is unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive; or
(c) is put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate; or
(d) has no basis other than a stereotype (for example, a stereotype based on the witness’s sex, race, culture, ethnicity, age or mental, intellectual or physical disability).
(2) Without limiting the matters the court may take into account for the purposes of subsection (1), it is to take into account:
(a) any relevant condition or characteristic of the witness of which the court is, or is made, aware, including age, education, ethnic and cultural background, gender, language background and skills, level of maturity and understanding and personality; and
(b) any mental, intellectual or physical disability of which the court is, or is made, aware and to which the witness is, or appears to be, subject; and
(c) the context in which the question is put, including:
(i) the nature of the proceeding; and
(ii) in a criminal proceeding—the nature of the offence to which the proceeding relates; and
(iii) the relationship (if any) between the witness and any other party to the proceeding.
(3) A question is not a disallowable question merely because:
(a) the question challenges the truthfulness of the witness or the consistency or accuracy of any statement made by the witness; or
(b) the question requires the witness to discuss a subject that could be considered distasteful to, or private by, the witness.
(4) A party may object to a question put to a witness on the ground that it is a disallowable question.
(5) However, the duty imposed on the court by this section applies whether or not an objection is raised to a particular question.
(6) A failure by the court to disallow a question under this section, or to inform the witness that it need not be answered, does not affect the admissibility in evidence of any answer given by the witness in response to the question.
Note: A person must not, without the express permission of a court, print or publish any question that the court has disallowed under this section: see section 195.
(1) A party may put a leading question to a witness in cross‑examination unless the court disallows the question or directs the witness not to answer it.
(2) Without limiting the matters that the court may take into account in deciding whether to disallow the question or give such a direction, it is to take into account the extent to which:
(a) evidence that has been given by the witness in examination in chief is unfavourable to the party who called the witness; and
(b) the witness has an interest consistent with an interest of the cross‑examiner; and
(c) the witness is sympathetic to the party conducting the cross‑examination, either generally or about a particular matter; and
(d) the witness’s age, or any mental, intellectual or physical disability to which the witness is subject, may affect the witness’s answers.
(3) The court is to disallow the question, or direct the witness not to answer it, if the court is satisfied that the facts concerned would be better ascertained if leading questions were not used.
(4) This section does not limit the court’s power to control leading questions.
Note:
Leading question is defined in the Dictionary.
(1) A witness may be cross‑examined about a prior inconsistent statement alleged to have been made by the witness whether or not:
(a) complete particulars of the statement have been given to the witness; or
(b) a document containing a record of the statement has been shown to the witness.
(2) If, in cross‑examination, a witness does not admit that he or she has made a prior inconsistent statement, the cross‑examiner is not to adduce evidence of the statement otherwise than from the witness unless, in the cross‑examination, the cross‑examiner:
(a) informed the witness of enough of the circumstances of the making of the statement to enable the witness to identify the statement; and
(b) drew the witness’s attention to so much of the statement as is inconsistent with the witness’s evidence.
(3) For the purpose of adducing evidence of the statement, a party may re‑open the party’s case.
(1) Except as provided by this section, a cross‑examiner must not question a witness about a previous representation alleged to have been made by a person other than the witness.
(2) A cross‑examiner may question a witness about the representation and its contents if:
(a) evidence of the representation has been admitted; or
(b) the court is satisfied that it will be admitted.
(3) If subsection (2) does not apply and the representation is contained in a document, the document may only be used to question a witness as follows:
(a) the document must be produced to the witness;
(b) if the document is a tape recording, or any other kind of document from which sounds are reproduced—the witness must be provided with the means (for example, headphones) to listen to the contents of the document without other persons present at the cross‑examination hearing those contents;
(c) the witness must be asked whether, having examined (or heard) the contents of the document, the witness stands by the evidence that he or she has given;
(d) neither the cross‑examiner nor the witness is to identify the document or disclose any of its contents.
(4) A document that is so used may be marked for identification.
(1) This section applies if a party is cross‑examining or has cross‑examined a witness about:
(a) a prior inconsistent statement alleged to have been made by the witness that is recorded in a document; or
(b) a previous representation alleged to have been made by another person that is recorded in a document.
(2) If the court so orders or if another party so requires, the party must produce:
(a) the document; or
(b) such evidence of the contents of the document as is available to the party;
to the court or to that other party.
(3) The court may:
(a) examine a document or evidence that has been so produced; and
(b) give directions as to its use; and
(c) admit it even if it has not been tendered by a party.
(4) Subsection (3) does not permit the court to admit a document or evidence that is not admissible because of Chapter 3.
(5) The mere production of a document to a witness who is being cross‑examined does not give rise to a requirement that the cross‑examiner tender the document.
(1) The court may give leave to a party to recall a witness to give evidence about a matter raised by evidence adduced by another party, being a matter on which the witness was not cross‑examined, if the evidence concerned has been admitted and:
(a) it contradicts evidence about the matter given by the witness in examination in chief; or
(b) the witness could have given evidence about the matter in examination in chief.
(2) A reference in this section to a matter raised by evidence adduced by another party includes a reference to an inference drawn from, or that the party intends to draw from, that evidence.
(1) A reference in this Part to a
document in question is a reference to a document as to the contents of which it is sought to adduce evidence.(2) A reference in this Part to a copy of a document in question includes a reference to a document that is not an exact copy of the document in question but that is identical to the document in question in all relevant respects.
Note: Section 182 gives this section a wider application in relation to Commonwealth records and certain Commonwealth documents.
(1) A party may adduce evidence of the contents of a document in question by tendering the document in question or by any one or more of the following methods:
(a) adducing evidence of an admission made by another party to the proceeding as to the contents of the document in question;
(b) tendering a document that:
(i) is or purports to be a copy of the document in question; and
(ii) has been produced, or purports to have been produced, by a device that reproduces the contents of documents;
(c) if the document in question is an article or thing by which words are recorded in such a way as to be capable of being reproduced as sound, or in which words are recorded in a code (including shorthand writing)—tendering a document that is or purports to be a transcript of the words;
(d) if the document in question is an article or thing on or in which information is stored in such a way that it cannot be used by the court unless a device is used to retrieve, produce or collate it—tendering a document that was or purports to have been produced by use of the device;
(e) tendering a document that:
(i) forms part of the records of or kept by a business (whether or not the business is still in existence); and
(ii) is or purports to be a copy of, or an extract from or a summary of, the document in question, or is or purports to be a copy of such an extract or summary;
(f) if the document in question is a public document—tendering a document that is or purports to be a copy of the document in question and that is or purports to have been printed:
(i) by the Government Printer or by the government or official printer of a State or Territory; or
(ii) by authority of the government or administration of the Commonwealth, a State, a Territory or a foreign country; or
(iii) by authority of an Australian Parliament, a House of an Australian Parliament, a committee of such a House or a committee of an Australian Parliament.
(2) Subsection (1) applies to a document in question whether the document in question is available to the party or not.
(3) If the party adduces evidence of the contents of a document under paragraph (1)(a), the evidence may only be used:
(a) in respect of the party’s case against the other party who made the admission concerned; or
(b) in respect of the other party’s case against the party who adduced the evidence in that way.
(4) A party may adduce evidence of the contents of a document in question that is not available to the party, or the existence and contents of which are not in issue in the proceeding, by:
(a) tendering a document that is a copy of, or an extract from or summary of, the document in question; or
(b) adducing from a witness evidence of the contents of the document in question.
Note 1: Clause 5 of Part 2 of the Dictionary is about the availability of documents.
Note 2: Section 182 gives this section a wider application in relation to Commonwealth records and certain Commonwealth documents.
No paragraph of subsection 48(1) (other than paragraph 48(1)(a)) applies to a document that is in a foreign country unless:
(a) the party who adduces evidence of the contents of the document in question has, not less than 28 days (or such other period as may be prescribed by the regulations or by rules of court) before the day on which the evidence is adduced, served on each other party a copy of the document proposed to be tendered; or
(b) the court directs that it is to apply.
Note: Section 182 gives this section a wider application in relation to Commonwealth records and certain Commonwealth documents.
(1) The court may, on the application of a party, direct that the party may adduce evidence of the contents of 2 or more documents in question in the form of a summary if the court is satisfied that it would not otherwise be possible conveniently to examine the evidence because of the volume or complexity of the documents in question.
(2) The court may only make such a direction if the party seeking to adduce the evidence in the form of a summary has:
(a) served on each other party a copy of the summary that discloses the name and address of the person who prepared the summary; and
(b) given each other party a reasonable opportunity to examine or copy the documents in question.
(3) The opinion rule does not apply to evidence adduced in accordance with a direction under this section.
The principles and rules of the common law that relate to the means of proving the contents of documents are abolished.
Note: Section 182 gives the provisions of this Part a wider application in relation to Commonwealth records and certain Commonwealth documents.
This Act (other than this Part) does not affect the operation of any Australian law or rule of practice so far as it permits evidence to be adduced in a way other than by witnesses giving evidence or documents being tendered in evidence.
(1) A judge may, on application, order that a demonstration, experiment or inspection be held.
(2) A judge is not to make an order unless he or she is satisfied that:
(a) the parties will be given a reasonable opportunity to be present; and
(b) the judge and, if there is a jury, the jury will be present.
(3) Without limiting the matters that the judge may take into account in deciding whether to make an order, the judge is to take into account the following:
(a) whether the parties will be present;
(b) whether the demonstration, experiment or inspection will, in the court’s opinion, assist the court in resolving issues of fact or understanding the evidence;
(c) the danger that the demonstration, experiment or inspection might be unfairly prejudicial, might be misleading or confusing or might cause or result in undue waste of time;
(d) in the case of a demonstration—the extent to which the demonstration will properly reproduce the conduct or event to be demonstrated;
(e) in the case of an inspection—the extent to which the place or thing to be inspected has materially altered.
(4) The court (including, if there is a jury, the jury) is not to conduct an experiment in the course of its deliberations.
(5) This section does not apply in relation to the inspection of an exhibit by the court or, if there is a jury, by the jury.
The court (including, if there is a jury, the jury) may draw any reasonable inference from what it sees, hears or otherwise notices during a demonstration, experiment or inspection.
INTRODUCTORY NOTE
Outline of this Chapter This Chapter is about whether evidence adduced in a proceeding is admissible.
Part 3.1 sets out the general inclusionary rule that relevant evidence is admissible.
Part 3.2 is about the exclusion of hearsay evidence, and exceptions to the hearsay rule.
Part 3.3 is about exclusion of opinion evidence, and exceptions to the opinion rule.
Part 3.4 is about admissions and the extent to which they are admissible as exceptions to the hearsay rule and the opinion rule.
Part 3.5 is about exclusion of certain evidence of judgments and convictions.
Part 3.6 is about exclusion of evidence of tendency or coincidence, and exceptions to the tendency rule and the coincidence rule.
Part 3.7 is about exclusion of evidence relevant only to credibility, and exceptions to the credibility rule.
Part 3.8 is about character evidence and the extent to which it is admissible as exceptions to the hearsay rule, the opinion rule, the tendency rule and the credibility rule.
Part 3.9 is about the requirements that must be satisfied before identification evidence is admissible.
Part 3.10 is about the various categories of privilege that may prevent evidence being adduced.
Part 3.11 provides for the discretionary and mandatory exclusion of evidence even if it would otherwise be admissible.
The following diagram shows how this Chapter applies to particular evidence:
(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2) In particular, evidence is not taken to be irrelevant only because it relates only to:
(a) the credibility of a witness; or
(b) the admissibility of other evidence; or
(c) a failure to adduce evidence.
(1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.
(2) Evidence that is not relevant in the proceeding is not admissible.
(1) If the determination of the question whether evidence adduced by a party is relevant depends on the court making another finding (including a finding that the evidence is what the party claims it to be), the court may find that the evidence is relevant:
(a) if it is reasonably open to make that finding; or
(b) subject to further evidence being admitted at a later stage of the proceeding that will make it reasonably open to make that finding.
(2) Without limiting subsection (1), if the relevance of evidence of an act done by a person depends on the court making a finding that the person and one or more other persons had, or were acting in furtherance of, a common purpose (whether to effect an unlawful conspiracy or otherwise), the court may use the evidence itself in determining whether the common purpose existed.
(1) If a question arises as to the relevance of a document or thing, the court may examine it and may draw any reasonable inference from it, including an inference as to its authenticity or identity.
(2) Subsection (1) does not limit the matters from which inferences may properly be drawn.
(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.
(2) Such a fact is in this Part referred to as an
asserted fact .(2A) For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made.
Note: Subsection (2A) was inserted as a response to the decision of the Supreme Court of NSW in
R. v Hannes (2000) 158 FLR 359.(3) Subsection (1) does not apply to evidence of a representation contained in a certificate or other document given or made under regulations made under an Act other than this Act to the extent to which the regulations provide that the certificate or other document has evidentiary effect.
Note: Specific exceptions to the hearsay rule are as follows:
• evidence relevant for a non‑hearsay purpose (section 60);
• first‑hand hearsay:
– civil proceedings, if the maker of the representation is unavailable (section 63) or available (section 64);
– criminal proceedings, if the maker of the representation is unavailable (section 65) or available (section 66);
• contemporaneous statements about a person’s health etc. (section 66A);
• business records (section 69);
• tags and labels (section 70);
• electronic communications (section 71);
• Aboriginal and Torres Strait Islander traditional laws and customs (section 72);
• marriage, family history or family relationships (section 73);
• public or general rights (section 74);
• use of evidence in interlocutory proceedings (section 75);
• admissions (section 81);
• representations about employment or authority (subsection 87(2));
• exceptions to the rule excluding evidence of judgments and convictions (subsection 92(3));
• character of and expert opinion about accused persons (sections 110 and 111).
Other provisions of this Act, or of other laws, may operate as further exceptions.
Examples: (1) D is the defendant in a sexual assault trial. W has made a statement to the police that X told W that X had seen D leave a night club with the victim shortly before the sexual assault is alleged to have occurred. Unless an exception to the hearsay rule applies, evidence of what X told W cannot be given at the trial.
(2) P had told W that the handbrake on W’s car did not work. Unless an exception to the hearsay rule applies, evidence of that statement cannot be given by P, W or anyone else to prove that the handbrake was defective.
(3) W had bought a video cassette recorder and written down its serial number on a document. Unless an exception to the hearsay rule applies, the document is inadmissible to prove that a video cassette recorder later found in D’s possession was the video cassette recorder bought by W.
(1) The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact.
(2) This section applies whether or not the person who made the representation had personal knowledge of the asserted fact (within the meaning of subsection 62(2)).
Note: Subsection (2) was inserted as a response to the decision of the High Court of Australia in
Lee v The Queen (1998) 195 CLR 594.(3) However, this section does not apply in a criminal proceeding to evidence of an admission.
Note: The admission might still be admissible under section 81 as an exception to the hearsay rule if it is “first‑hand” hearsay: see section 82.
(1) This Part does not enable use of a previous representation to prove the existence of an asserted fact if, when the representation was made, the person who made it was not competent to give evidence about the fact because of subsection 13(1).
(2) This section does not apply to a contemporaneous representation made by a person about his or her health, feelings, sensations, intention, knowledge or state of mind.
Note: For the admissibility of such contemporaneous representations, see section 66A.
(3) For the purposes of this section, it is presumed, unless the contrary is proved, that when the representation was made the person who made it was competent to give evidence about the asserted fact.
(1) A reference in this Division (other than in subsection (2)) to a previous representation is a reference to a previous representation that was made by a person who had personal knowledge of an asserted fact.
(2) A person has personal knowledge of the asserted fact if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact.
(3) For the purposes of section 66A, a person has personal knowledge of the asserted fact if it is a fact about the person’s health, feelings, sensations, intention, knowledge or state of mind at the time the representation referred to in that section was made.
(1) This section applies in a civil proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.
(2) The hearsay rule does not apply to:
(a) evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made; or
(b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.
Note 1: Section 67 imposes notice requirements relating to this subsection.
Note 2: Clause 4 of Part 2 of the Dictionary is about the availability of persons.
(1) This section applies in a civil proceeding if a person who made a previous representation is available to give evidence about an asserted fact.
(2) The hearsay rule does not apply to:
(a) evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made; or
(b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation;
if it would cause undue expense or undue delay, or would not be reasonably practicable, to call the person who made the representation to give evidence.
Note: Section 67 imposes notice requirements relating to this subsection. Section 68 is about objections to notices that relate to this subsection.
(3) If the person who made the representation has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by:
(a) that person; or
(b) a person who saw, heard or otherwise perceived the representation being made.
(4) A document containing a representation to which subsection (3) applies must not be tendered before the conclusion of the examination in chief of the person who made the representation, unless the court gives leave.
Note: Clause 4 of Part 2 of the Dictionary is about the availability of persons.
(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.
(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation:
(a) was made under a duty to make that representation or to make representations of that kind; or
(b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or
(c) was made in circumstances that make it highly probable that the representation is reliable; or
(d) was:
(i) against the interests of the person who made it at the time it was made; and
(ii) made in circumstances that make it likely that the representation is reliable.
Note: Section 67 imposes notice requirements relating to this subsection.
(3) The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the defendant in the proceeding to which this section is being applied:
(a) cross‑examined the person who made the representation about it; or
(b) had a reasonable opportunity to cross‑examine the person who made the representation about it.
Note: Section 67 imposes notice requirements relating to this subsection.
(4) If there is more than one defendant in the criminal proceeding, evidence of a previous representation that:
(a) is given in an Australian or overseas proceeding; and
(b) is admitted into evidence in the criminal proceeding because of subsection (3);
cannot be used against a defendant who did not cross‑examine, and did not have a reasonable opportunity to cross‑examine, the person about the representation.
(5) For the purposes of subsections (3) and (4), a defendant is taken to have had a reasonable opportunity to cross‑examine a person if the defendant was not present at a time when the cross‑examination of a person might have been conducted but:
(a) could reasonably have been present at that time; and
(b) if present could have cross‑examined the person.
(6) Evidence of the making of a representation to which subsection (3) applies may be adduced by producing a transcript, or a recording, of the representation that is authenticated by:
(a) the person to whom, or the court or other body to which, the representation was made; or
(b) if applicable, the registrar or other proper officer of the court or other body to which the representation was made; or
(c) the person or body responsible for producing the transcript or recording.
(7) Without limiting paragraph (2)(d), a representation is taken for the purposes of that paragraph to be against the interests of the person who made it if it tends:
(a) to damage the person’s reputation; or
(b) to show that the person has committed an offence for which the person has not been convicted; or
(c) to show that the person is liable in an action for damages.
(8) The hearsay rule does not apply to:
(a) evidence of a previous representation adduced by a defendant if the evidence is given by a person who saw, heard or otherwise perceived the representation being made; or
(b) a document tendered as evidence by a defendant so far as it contains a previous representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.
Note: Section 67 imposes notice requirements relating to this subsection.
(9) If evidence of a previous representation about a matter has been adduced by a defendant and has been admitted, the hearsay rule does not apply to evidence of another representation about the matter that:
(a) is adduced by another party; and
(b) is given by a person who saw, heard or otherwise perceived the other representation being made.
Note: Clause 4 of Part 2 of the Dictionary is about the availability of persons.
(1) This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact.
(2) If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by:
(a) that person; or
(b) a person who saw, heard or otherwise perceived the representation being made;
if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.
(2A) In determining whether the occurrence of the asserted fact was fresh in the memory of a person, the court may take into account all matters that it considers are relevant to the question, including:
(a) the nature of the event concerned; and
(b) the age and health of the person; and
(c) the period of time between the occurrence of the asserted fact and the making of the representation.
Note: Subsection (2A) was inserted as a response to the decision of the High Court of Australia in
Graham v The Queen (1998) 195 CLR 606.(3) If a representation was made for the purpose of indicating the evidence that the person who made it would be able to give in an Australian or overseas proceeding, subsection (2) does not apply to evidence adduced by the prosecutor of the representation unless the representation concerns the identity of a person, place or thing.
(4) A document containing a representation to which subsection (2) applies must not be tendered before the conclusion of the examination in chief of the person who made the representation, unless the court gives leave.
Note: Clause 4 of Part 2 of the Dictionary is about the availability of persons.
The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person’s health, feelings, sensations, intention, knowledge or state of mind.
(1) Subsections 63(2), 64(2) and 65(2), (3) and (8) 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.
(2) Notices given under subsection (1) are to be given in accordance with any regulations or rules of court made for the purposes of this section.
(3) The notice must state:
(a) the particular provisions of this Division on which the party intends to rely in arguing that the hearsay rule does not apply to the evidence; and
(b) if subsection 64(2) is such a provision—the grounds, specified in that provision, on which the party intends to rely.
(4) Despite subsection (1), if notice has not been given, the court may, on the application of a party, direct that one or more of those subsections is to apply despite the party’s failure to give notice.
(5) The direction:
(a) is subject to such conditions (if any) as the court thinks fit; and
(b) in particular, may provide that, in relation to specified evidence, the subsection or subsections concerned apply with such modifications as the court specifies.
(1) In a civil proceeding, if the notice discloses that it is not intended to call the person who made the previous representation concerned because it:
(a) would cause undue expense or undue delay; or
(b) would not be reasonably practicable;
a party may, not later than 21 days after notice has been given, object to the tender of the evidence, or of a specified part of the evidence.
(2) The objection is to be made by giving to each other party a written notice setting out the grounds on which the objection is made.
(3) The court may, on the application of a party, determine the objection at or before the hearing.
(4) If the objection is unreasonable, the court may order that, in any event, the party objecting is to bear the costs (ascertained on a solicitor and client basis) incurred by another party:
(a) in relation to the objection; and
(b) in calling the person who made the representation to give evidence.
(1) This section applies to a document that:
(a) either:
(i) is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business; or
(ii) at any time was or formed part of such a record; and
(b) contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business.
(2) The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made:
(a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or
(b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.
(3) Subsection (2) does not apply if the representation:
(a) was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding; or
(b) was made in connection with an investigation relating or leading to a criminal proceeding.
(4) If:
(a) the occurrence of an event of a particular kind is in question; and
(b) in the course of a business, a system has been followed of making and keeping a record of the occurrence of all events of that kind;
the hearsay rule does not apply to evidence that tends to prove that there is no record kept, in accordance with that system, of the occurrence of the event.
(5) For the purposes of this section, a person is taken to have had personal knowledge of a fact if the person’s knowledge of the fact was or might reasonably be supposed to have been based on what the person saw, heard or otherwise perceived (other than a previous representation made by a person about the fact).
Note 1: Sections 48, 49, 50, 146, 147 and subsection 150(1) are relevant to the mode of proof, and authentication, of business records.
Note 2: Section 182 gives this section a wider application in relation to Commonwealth records.
(1) The hearsay rule does not apply to a tag or label attached to, or writing placed on, an object (including a document) if the tag or label or writing may reasonably be supposed to have been so attached or placed:
(a) in the course of a business; and
(b) for the purpose of describing or stating the identity, nature, ownership, destination, origin or weight of the object, or of the contents (if any) of the object.
Note: Section 182 gives this subsection a wider application in relation to Commonwealth records.
(2) This section, and any provision of a law of a State or Territory that permits the use in evidence of such a tag, label or writing as an exception to a rule of law restricting the admissibility or use of hearsay evidence, does not apply to:
(a) a Customs prosecution within the meaning of Part XIV of the
Customs Act 1901 ; or(b) an Excise prosecution within the meaning of Part XI of the
Excise Act 1901 .Note: Section 5 extends the application of this subsection to proceedings in all Australian courts.
The hearsay rule does not apply to a representation contained in a document recording an electronic communication so far as the representation is a representation as to:
(a) the identity of the person from whom or on whose behalf the communication was sent; or
(b) the date on which or the time at which the communication was sent; or
(c) the destination of the communication or the identity of the person to whom the communication was addressed.
Note 1: Division 3 of Part 4.3 contains presumptions about electronic communications.
Note 2: Section 182 gives this section a wider application in relation to Commonwealth records.
Note 3:
Electronic communication is defined in the Dictionary.
The hearsay rule does not apply to evidence of a representation about the existence or non‑existence, or the content, of the traditional laws and customs of an Aboriginal or Torres Strait Islander group.
(1) The hearsay rule does not apply to evidence of reputation concerning:
(a) whether a person was, at a particular time or at any time, a married person; or
(b) whether 2 people cohabiting at a particular time were married to each other at that time; or
(c) a person’s age; or
(d) family history or a family relationship.
(2) In a criminal proceeding, subsection (1) does not apply to evidence adduced by a defendant unless:
(a) it tends to contradict evidence of a kind referred to in subsection (1) that has been admitted; or
(b) the defendant has given reasonable notice in writing to each other party of the defendant’s intention to adduce the evidence.
(3) In a criminal proceeding, subsection (1) does not apply to evidence adduced by the prosecutor unless it tends to contradict evidence of a kind referred to in subsection (1) that has been admitted.
(1) The hearsay rule does not apply to evidence of reputation concerning the existence, nature or extent of a public or general right.
(2) In a criminal proceeding, subsection (1) does not apply to evidence adduced by the prosecutor unless it tends to contradict evidence of a kind referred to in subsection (1) that has been admitted.
In an interlocutory proceeding, the hearsay rule does not apply to evidence if the party who adduces it also adduces evidence of its source.
(1) Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.
(2) Subsection (1) does not apply to evidence of an opinion contained in a certificate or other document given or made under regulations made under an Act other than this Act to the extent to which the regulations provide that the certificate or other document has evidentiary effect.
Note: Specific exceptions to the opinion rule are as follows:
• summaries of voluminous or complex documents (subsection 50(3));
• evidence relevant otherwise than as opinion evidence (section 77);
• lay opinion (section 78);
• Aboriginal and Torres Strait Islander traditional laws and customs (section 78A);
• expert opinion (section 79);
• admissions (section 81);
• exceptions to the rule excluding evidence of judgments and convictions (subsection 92(3));
• character of and expert opinion about accused persons (sections 110 and 111).
Other provisions of this Act, or of other laws, may operate as further exceptions.
Examples: (1) P sues D, her doctor, for the negligent performance of a surgical operation. Unless an exception to the opinion rule applies, P’s neighbour, W, who had the same operation, cannot give evidence of his opinion that D had not performed the operation as well as his own.
(2) P considers that electrical work that D, an electrician, has done for her is unsatisfactory. Unless an exception to the opinion rule applies, P cannot give evidence of her opinion that D does not have the necessary skills to do electrical work.
The opinion rule does not apply to evidence of an opinion that is admitted because it is relevant for a purpose other than proof of the existence of a fact about the existence of which the opinion was expressed.
The opinion rule does not apply to evidence of an opinion expressed by a person if:
(a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event; and
(b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person’s perception of the matter or event.
The opinion rule does not apply to evidence of an opinion expressed by a member of an Aboriginal or Torres Strait Islander group about the existence or non‑existence, or the content, of the traditional laws and customs of the group.
(1) If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.
(2) To avoid doubt, and without limiting subsection (1):
(a) a reference in that subsection to specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their development and behaviour during and following the abuse); and
(b) a reference in that subsection to an opinion of a person includes, if the person has specialised knowledge of the kind referred to in paragraph (a), a reference to an opinion relating to either or both of the following:
(i) the development and behaviour of children generally;
(ii) the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences.
Evidence of an opinion is not inadmissible only because it is about:
(a) a fact in issue or an ultimate issue; or
(b) a matter of common knowledge.
Note:
Admission is defined in the Dictionary.
(1) The hearsay rule and the opinion rule do not apply to evidence of an admission.
(2) The hearsay rule and the opinion rule do not apply to evidence of a previous representation:
(a) that was made in relation to an admission at the time the admission was made, or shortly before or after that time; and
(b) to which it is reasonably necessary to refer in order to understand the admission.
Note: Specific exclusionary rules relating to admissions are as follows:
• evidence of admissions that is not first‑hand (section 82);
• use of admissions against third parties (section 83);
• admissions influenced by violence etc. (section 84);
• unreliable admissions of accused persons (section 85);
• records of oral questioning of accused persons (section 86).
Example : D admits to W, his best friend, that he sexually assaulted V. In D’s trial for the sexual assault, the prosecution may lead evidence from W:(a) that D made the admission to W as proof of the truth of that admission; and
(b) that W formed the opinion that D was sane when he made the admission.
Section 81 does not prevent the application of the hearsay rule to evidence of an admission unless:
(a) it is given by a person who saw, heard or otherwise perceived the admission being made; or
(b) it is a document in which the admission is made.
Note: Section 60 does not apply in a criminal proceeding to evidence of an admission.
(1) Section 81 does not prevent the application of the hearsay rule or the opinion rule to evidence of an admission in respect of the case of a third party.
(2) The evidence may be used in respect of the case of a third party if that party consents.
(3) Consent cannot be given in respect of part only of the evidence.
(4) In this section:
third party means a party to the proceeding concerned, other than the party who:
(a) made the admission; or
(b) adduced the evidence.
(1) Evidence of an admission is not admissible unless the court is satisfied that the admission, and the making of the admission, were not influenced by:
(a) violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or towards another person; or
(b) a threat of conduct of that kind.
(2) Subsection (1) only applies if the party against whom evidence of the admission is adduced has raised in the proceeding an issue about whether the admission or its making were so influenced.
(1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant:
(a) to, or in the presence of, an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence; or
(b) as a result of an act of another person who was, and who the defendant knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued.
Note: Subsection (1) was inserted as a response to the decision of the High Court of Australia in
Kelly v The Queen (2004) 218 CLR 216.(2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected.
(3) Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account:
(a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject; and
(b) if the admission was made in response to questioning:
(i) the nature of the questions and the manner in which they were put; and
(ii) the nature of any threat, promise or other inducement made to the person questioned.
(1) This section applies only in a criminal proceeding and only if an oral admission was made by a defendant to an investigating official in response to a question put or a representation made by the official.
(2) A document prepared by or on behalf of the official is not admissible to prove the contents of the question, representation or response unless the defendant has acknowledged that the document is a true record of the question, representation or response.
(3) The acknowledgment must be made by signing, initialling or otherwise marking the document.
(4) In this section:
document does not include:
(a) a sound recording, or a transcript of a sound recording; or
(b) a recording of visual images and sounds, or a transcript of the sounds so recorded.
(1) For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that:
(a) when the representation was made, the person had authority to make statements on behalf of the party in relation to the matter with respect to which the representation was made; or
(b) when the representation was made, the person was an employee of the party, or had authority otherwise to act for the party, and the representation related to a matter within the scope of the person’s employment or authority; or
(c) the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party.
(2) For the purposes of this section, the hearsay rule does not apply to a previous representation made by a person that tends to prove:
(a) that the person had authority to make statements on behalf of another person in relation to a matter; or
(b) that the person was an employee of another person or had authority otherwise to act for another person; or
(c) the scope of the person’s employment or authority.
For the purpose of determining whether evidence of an admission is admissible, the court is to find that a particular person made the admission if it is reasonably open to find that he or she made the admission.
(f) a legislature of a foreign country, including a House or committee (however described) of such a legislature.
re‑examination is defined in subclauses 2(3) and (4) of Part 2 of this Dictionary.
registered , in relation to legal practice in a foreign country, means having all necessary licences, approvals, admissions, certificates or other forms of authorisation (including practising certificates) required by or under legislation for engaging in legal practice in that country.
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 subsection 97(1) that a party seeks to have adduced for the purpose referred to in that subsection.
tendency rule means subsection 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.
visual identification evidence is defined in section 114.
witness includes the meaning given in clause 7 of Part 2 of this Dictionary.
(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 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.
(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.
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.
(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.
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.
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;
(b) the representation was recognised by the person as his or her representation by signing, initialling or otherwise marking the document.
(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.
(3) A reference in this clause to a party includes a defendant in a criminal proceeding.
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.
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; and
(b) in that context, a reference to an office is a reference to the position occupied by the APS employee concerned.
(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.
(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.
(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.
The endnotes provide information about this compilation and the compiled law.
The following endnotes are included in every compilation:
Endnote 1—About the endnotes
Endnote 2—Abbreviation key
Endnote 3—Legislation history
Endnote 4—Amendment history
The abbreviation key sets out abbreviations that may be used in the endnotes.
Amending laws are annotated in the legislation history and amendment history.
The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.
The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.
The
If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.
A misdescribed amendment is an amendment that does not accurately describe how an amendment is to be made. If, despite the misdescription, the amendment can be given effect as intended, then the misdescribed amendment can be incorporated through an editorial change made under section 15V of the
If a misdescribed amendment cannot be given effect as intended, the amendment is not incorporated and “(md not incorp)” is added to the amendment history.
ad = added or inserted | o = order(s) |
am = amended | Ord = Ordinance |
amdt = amendment | orig = original |
c = clause(s) | par = paragraph(s)/subparagraph(s) |
C[x] = Compilation No. x | /sub‑subparagraph(s) |
Ch = Chapter(s) | pres = present |
def = definition(s) | prev = previous |
Dict = Dictionary | (prev…) = previously |
disallowed = disallowed by Parliament | Pt = Part(s) |
Div = Division(s) | r = regulation(s)/rule(s) |
ed = editorial change | reloc = relocated |
exp = expires/expired or ceases/ceased to have | renum = renumbered |
effect | rep = repealed |
F = Federal Register of Legislation | rs = repealed and substituted |
gaz = gazette | s = section(s)/subsection(s) |
LA = | Sch = Schedule(s) |
LIA = | Sdiv = Subdivision(s) |
(md) = misdescribed amendment can be given | SLI = Select Legislative Instrument |
effect | SR = Statutory Rules |
(md not incorp) = misdescribed amendment | Sub‑Ch = Sub‑Chapter(s) |
cannot be given effect | SubPt = Subpart(s) |
mod = modified/modification | |
No. = Number(s) | commenced or to be commenced |
Evidence Act 1995 | 2, 1995 | 23 Feb 1995 | s 4–197 and Sch: 18 Apr 1995 (s 2(3)) Remainder: 23 Feb 1995 (s 2(1)) | |
Family Law Reform (Consequential Amendments) Act 1995 | 140, 1995 | 12 Dec 1995 | Sch 2: 26 Dec 1995 (s 2(5)) | — |
Statute Law Revision Act 1996 | 43, 1996 | 25 Oct 1996 | Sch 2 (item 54): 18 Apr 1995 (s 2(2)) | — |
Law and Justice Legislation Amendment Act 1997 | 34, 1997 | 17 Apr 1997 | Sch 6: 17 Apr 1997 (s 2(1)) | — |
Law and Justice Legislation Amendment Act 1999 | 125, 1999 | 13 Oct 1999 | Sch 6: 13 Oct 1999 (s 2(1)) | — |
Public Employment (Consequential and Transitional) Amendment Act 1999 | 146, 1999 | 11 Nov 1999 | Sch 1 (items 434–437): 5 Dec 1999 (s 2(1), (2)) | — |
Corporate Law Economic Reform Program Act 1999 | 156, 1999 | 24 Nov 1999 | Sch 12 (items 1, 24): 24 Nov 2000 (s 2(4)) | — |
Australian Federal Police Legislation Amendment Act 2000 | 9, 2000 | 7 Mar 2000 | Sch 2 (items 29–32) and Sch 3 (items 20, 25, 34, 35): 2 July 2000 (s 2(1) and gaz 2000, No S328) | Sch 3 (items 20, 25, 34, 35) |
Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001 | 24, 2001 | 6 Apr 2001 | s 4(1), (2) and Sch 25: 24 May 2001 (s 2(1)(a)) | s 4(1) and (2) |
Corporations (Repeals, Consequentials and Transitionals) Act 2001 | 55, 2001 | 28 June 2001 | s 4–14 and Sch 3 (items 174, 175): 15 July 2001 (s 2(1), (3) and gaz 2001, No S285) | s 4–14 |
Border Security Legislation Amendment Act 2002 | 64, 2002 | 5 July 2002 | Sch 6 (items 16–18): 5 Jan 2003 (s 2(1) item 9) | — |
Ozone Protection and Synthetic Greenhouse Gas Legislation Amendment Act 2003 | 126, 2003 | 5 Dec 2003 | Sch 1 (item 1): 5 Dec 2003 (s 2) | — |
Law and Justice Legislation Amendment Act 2004 | 62, 2004 | 26 May 2004 | Sch 1 (item 17): 27 May 2004 (s 2(1) item 8) | — |
Statute Law Revision Act 2005 | 100, 2005 | 6 July 2005 | Sch 1 (item 14): 6 July 2005 (s 2(1) item 10) | — |
Family Law Amendment (Shared Parental Responsibility) Act 2006 | 46, 2006 | 22 May 2006 | Sch 3 (items 1, 8): 1 July 2006 (s 2(1) item 3) | Sch 3 (item 8) |
Evidence Amendment (Journalists’ Privilege) Act 2007 | 116, 2007 | 28 June 2007 | Sch 1 (items 1, 2): 26 July 2007 (s 2(1) item 2) | — |
Evidence Amendment Act 2008 | 135, 2008 | 4 Dec 2008 | Sch 1 and 2: 1 Jan 2009 (s 2(1) item 2) | Sch 1 (items 95–99) and Sch 2 (item 13) |
Customs Legislation Amendment (Name Change) Act 2009 | 33, 2009 | 22 May 2009 | Sch 2 (item 30): 23 May 2009 (s 2) | — |
Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 | 70, 2009 | 8 July 2009 | Sch 3 (item 32): 5 Aug 2009 (s 2(1) item 7) | — |
Statute Law Revision Act 2010 | 8, 2010 | 1 Mar 2010 | Sch 1 (item 26): 1 Mar 2010 (s 2(1) item 2) | — |
Evidence Amendment (Journalists’ Privilege) Act 2011 | 21, 2011 | 12 Apr 2011 | Sch 1 (items 1–3): 13 Apr 2011 (s 2) | — |
Acts Interpretation Amendment Act 2011 | 46, 2011 | 27 June 2011 | Sch 2 (item 566) and Sch 3 (items 10, 11): 27 Dec 2011 (s 2(1) item 3) | Sch 3 (items 10, 11) |
Clean Energy (Consequential Amendments) Act 2011 | 132, 2011 | 18 Nov 2011 | Sch 1 (item 260A): 1 July 2012 (s 2(1) item 3) | — |
Customs and Other Legislation Amendment (Australian Border Force) Act 2015 | 41, 2015 | 20 May 2015 | Sch 5 (items 64, 65) and Sch 9 (items 1–9): 1 July 2015 (s 2(1) items 2, 7) | Sch 5 (item 65) and Sch 9 (items 1–9) |
| ||||
| 115, 2017 | 30 Oct 2017 | Sch 1 (item 26): 1 July 2015 (s 2(1) item 2) | — |
Civil Law and Justice Legislation Amendment Act 2015 | 113, 2015 | 17 Aug 2015 | Sch 5: 18 Aug 2015 (s 2(1) item 2) | Sch 5 (item 63) |
Civil Law and Justice (Omnibus Amendments) Act 2015 | 132, 2015 | 13 Oct 2015 | Sch 1 (items 26–33): 14 Oct 2015 (s 2(1) item 2) | — |
Statute Law Revision Act (No. 1) 2016 | 4, 2016 | 11 Feb 2016 | Sch 4 (items 384, 385): 10 Mar 2016 (s 2(1) item 6) | — |
Trade Legislation Amendment Act (No. 1) 2016 | 31, 2016 | 23 Mar 2016 | Sch 2 (item 13): 1 May 2016 (s 2(1) item 3) | — |
Ozone Protection and Synthetic Greenhouse Gas Management Legislation Amendment Act 2017 | 67, 2017 | 23 June 2017 | Sch 2 (items 50, 75, 76): 1 Jan 2018 (s 2(1) item 3) | Sch 2 (items 75, 76) |
Marriage Amendment (Definition and Religious Freedoms) Act 2017 | 129, 2017 | 8 Dec 2017 | Sch 3 (items 7, 8) and Sch 4: 9 Dec 2017 (s 2(1) item 7) | Sch 3 (item 8) and Sch 4 |
| ||||
| 13, 2021 | 1 Mar 2021 | Sch 2 (item 540): 1 Sept 2021 (s 2(1) item 5) | — |
Civil Law and Justice Legislation Amendment Act 2018 | 130, 2018 | 25 Oct 2018 | Sch 5: 26 Oct 2018 (s 2(1) item 7) | Sch 5 (item 2) |
Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 | 13, 2021 | 1 Mar 2021 | Sch 2 (item 333): 1 Sept 2021 (s 2(1) item 5) | — |
Family Law Amendment Act 2024 | 118, 2024 | 10 Dec 2024 | Sch 1 (item 80): 10 June 2025 (s 2(1) item 5) | — |
Introductory Note........................ | am No 100, 2005; No 113, 2015 |
s 3............................................. | am No 46, 2011; No 113, 2015 |
s 4............................................. | am No 140, 1995; No 135, 2008; No 113, 2015; No 13, 2021 |
s 5............................................. | am No 125, 1999; No 135, 2008; No 113, 2015 |
s 6............................................. | am No 113, 2015 |
s 7............................................. | am No 113, 2015 |
s 8............................................. | am No 156, 1999; No 55, 2001; No 113, 2015 |
s 8A........................................... | ad No 24, 2001 |
am No 113, 2015 | |
s 9............................................. | am No 113, 2015 |
s 13............................................ | rs No 135, 2008 |
s 14............................................ | am No 135, 2008 |
s 18............................................ | am No 135, 2008 |
s 19............................................ | am No 135, 2008 |
rep No 113, 2015 | |
s 20............................................ | am No 34, 1997; No 135, 2008; No 4, 2016 |
s 21............................................ | am No 135, 2008 |
s 25............................................ | rep No 135, 2008 |
s 29............................................ | am No 135, 2008 |
s 31............................................ | am No 113, 2015 |
s 33............................................ | am No 135, 2008 |
s 37............................................ | am No 135, 2008 |
s 41............................................ | rs No 135, 2008 |
s 43............................................ | am No 34, 1997 |
s 47............................................ | am No 125, 1999 |
s 48............................................ | am No 125, 1999 |
s 49............................................ | am. No. 125, 1999 |
s. 50........................................... | am. No. 125, 1999; No. 135, 2008 |
s. 51........................................... | am. No. 125, 1999 |
Introductory Note........................ | am. No. 135, 2008 |
s. 59........................................... | am. No. 125, 1999; No. 135, 2008 |
s 60............................................ | am No 135, 2008 |
s 61............................................ | am No 135, 2008 |
s. 62........................................... | am. No. 135, 2008 |
s. 63........................................... | am. No. 125, 1999 |
s. 64........................................... | am. No. 125, 1999; No. 135, 2008 |
s. 65........................................... |
am. No. 125, 1999; No. 135, 2008 | |
s. 66........................................... | am. No. 135, 2008 |
s. 66A........................................ | ad. No. 135, 2008 |
s 68............................................ | ad No 34, 1997 |
am No 113, 2015 | |
s 70............................................ | am No 34, 1997; No 113, 2015 |
s 71............................................ | rs No 135, 2008 |
s 72............................................ | rs No 135, 2008 |
s 73............................................ | am No 129, 2017 |
s. 76........................................... | am. No. 125, 1999; No. 135, 2008 |
s. 78A........................................ | ad. No. 135, 2008 |
s. 79........................................... | am. No. 135, 2008 |
s. 82........................................... | am. No. 125, 1999; No. 135, 2008 |
s. 85........................................... | am. No. 135, 2008 |
s. 89........................................... | am. No. 135, 2008 |
s 93............................................ | ed C31 |
s. 97........................................... | am. No. 135, 2008 |
s. 98........................................... | rs. No. 135, 2008 |
Division 1.................................. | ad. No. 135, 2008 |
s. 101A...................................... | ad. No. 135, 2008 |
Division 2 heading...................... | ad. No. 135, 2008 |
s. 102......................................... | am. No. 34, 1997 |
rs. No. 135, 2008 | |
ss. 103, 104................................ | am. No. 135, 2008 |
s. 105......................................... | rep. No. 135, 2008 |
s. 106......................................... | rs. No. 135, 2008 |
s. 107......................................... | rep. No. 34, 1997 |
s. 108......................................... | am. No. 34, 1997; No. 135, 2008 |
Division 3 heading...................... | ad. No. 135, 2008 |
s. 108A...................................... | ad. No. 34, 1997 |
am. No. 135, 2008 | |
s. 108B...................................... | ad. No. 135, 2008 |
Division 4.................................. | ad. No. 135, 2008 |
s. 108C...................................... | ad. No. 135, 2008 |
s. 110......................................... | am. No. 135, 2008 |
s. 112......................................... | am. No. 135, 2008 |
s. 114......................................... | am. No. 135, 2008 |
ss. 117, 118................................ | am. No. 135, 2008 |
s. 120......................................... | am. No. 34, 1997 |
s. 122......................................... | rs. No. 135, 2008 |
Division 1A heading.................... | rep No 132, 2015 |
Division 1C heading.................... | ad No 132, 2015 |
Division 1A................................ | ad. No. 116, 2007 |
rs. No. 21, 2011 | |
ss. 126A–126F............................ | ad. No. 116, 2007 |
rep. No. 21, 2011 | |
s 126J (prev s 126G).................... | ad No 21, 2011 |
renum No 132, 2015 | |
s 126K (prev s 126H)................... | ad No 21, 2011 |
renum No 132, 2015 | |
s 128.......................................... | am No 34, 1997 |
rs No 135, 2008 | |
am No 113, 2015 | |
s 128A....................................... | ad No 135, 2008 |
am No 113, 2015 | |
s 129.......................................... | am No 113, 2015 |
s. 130......................................... | am. No. 43, 1996 |
s. 131A...................................... | ad. No. 116, 2007 |
am. No. 21, 2011; No 132, 2015 | |
s 131B....................................... | ad No 21, 2011 |
am No 113, 2015; No 132, 2015 | |
Part 3.11 heading........................ | rs. No. 135, 2008 |
s. 138......................................... | am. No. 70, 2009 |
s. 139......................................... | am. No. 135, 2008 |
s. 147......................................... | am. No. 125, 1999 |
s. 148......................................... | am. No. 135, 2008 |
s. 149......................................... | am. No. 125, 1999 |
s 150.......................................... | am No 113, 2015 |
s 151.......................................... | am No 113, 2015 |
s. 152......................................... | am. No. 125, 1999 |
s. 154......................................... | am. No. 34, 1997 |
s 155.......................................... | rs No 34, 1997 |
am No 113, 2015 | |
s 155A....................................... | ad No 125, 1999 |
am No 113, 2015 | |
s. 158......................................... | am. No. 34, 1997 |
s 160.......................................... | am No 125, 1999; No 130, 2018 |
s 161.......................................... | rs No 135, 2008 |
s 163.......................................... | am No 125, 1999; No 113, 2015 |
Part 4.5 heading.......................... | rs. No. 135, 2008 |
s. 165......................................... | am. No. 135, 2008 |
ss. 165A, 165B........................... | ad. No. 135, 2008 |
Division 1.................................. | am. No. 125, 1999 |
Division 2.................................. | am. No. 125, 1999 |
s 170.......................................... | am No 34, 1997; No 113, 2015 |
s 171.......................................... | am No 9, 2000; No 62, 2004; No 113, 2015; No 31, 2016 |
s. 180......................................... | am. No. 9, 2000 |
s 182.......................................... | am No 125, 1999; No 135, 2008; No 113, 2015 |
s 183.......................................... | am No 125, 1999 |
s. 184......................................... | am No 135, 2008 |
s 185.......................................... | am No 113, 2015 |
s 186.......................................... | am No 135, 2008; No 113, 2015 |
s 187.......................................... | am No 113, 2015 |
s 189.......................................... | am No 8, 2010 |
ed C31 | |
s 190.......................................... | am No 46, 2006; No 135, 2008; No 118, 2024 |
s 191.......................................... | am No 135, 2008 |
s 192A....................................... | ad No 135, 2008 |
s 194.......................................... | rep No 113, 2015 |
s 195.......................................... | am No 24, 2001; No 113, 2015 |
Dictionary.................................. | am No 34, 1997; No 125, 1999; No 146, 1999; No 9, 2000; No 55, 2001; No 64, 2002; No 126, 2003; No 135, 2008; No 33, 2009; No 132, 2011; No 41, 2015; No 113, 2015; No 67, 2017 |
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