Evidence Amendment Act 1985
No. 198 of 1985
An Act to amend the Evidence Act 1905
[Assented to 16 December 1985]
BE IT ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows:
Short title, &c.
1. (1) This Act may be cited as the Evidence Amendment Act 1985.
(2) The Evidence Act 19051 is in this Act referred to as the Principal Act.
Commencement
2. This Act shall come into operation on a day to be fixed by Proclamation.
Ancillary evidence
3. Section 7j of the Principal Act is amended—
(a) by inserting in sub-section (1) “by an authorised person or if given” after “given” (first occurring); and
(b) by adding at the end the following sub-sections:
“(3) Evidence relevant to a matter mentioned in section 7b, 7d or 7e shall not be given under sub-section (1) by an authorised person unless it appears to the court that—
(a) it is not reasonably practicable for a person who had, at the relevant time or afterwards, a responsible position in relation to the making or keeping of the records concerned to give that evidence; or
(b) having regard to all the circumstances of the case, undue expense would be caused by calling a person referred to in paragraph (a) as a witness.
“(4) In this section, ‘authorised person’ means—
(a) in a case where the evidence is given at a place outside Australia— an Australian Diplomatic Officer or an Australian Consular Officer, as defined by the Consular Fees Act 1955, exercising functions in that place; or
(b) in any case—a member of the Australian Federal Police of or above the rank of sergeant or a person authorised by the Attorney-General for the purposes of this section.”.
4. After Part IIIa of the Principal Act the following Part is inserted:
“PART IIIb—EXAMINATION OF WITNESSES ABROAD
Interpretation
“7t. In this Part, unless the contrary intention appears—
‘Australia’ includes the external Territories;
‘examination’ includes any proceeding for the taking of evidence of a person conducted by the judicial authorities of a foreign country in relation to a letter of request issued as a result of an order made by a court under this Part;
‘inferior court’ means—
(a) a court of a Territory other than the Northern Territory;
(b) a court of a State when exercising federal jurisdiction; or
(c) a court of the Northern Territory when exercising jurisdiction conferred upon it, or vested in it, by an Act of the Parliament,
not being a superior court;
‘superior court’ means—
(a) the High Court;
(b) the Federal Court of Australia or the Family Court of Australia;
(c) the Supreme Court of a State, or the Family Court of Western Australia, when exercising federal jurisdiction;
(d) the Supreme Court of a Territory…
Overview
The Evidence Amendment Act 1985 (C2004A03237) was enacted to address the challenges associated with obtaining evidence from witnesses located outside Australia for use in legal proceedings within Australia. The Act amends the Evidence Act 1905 by introducing provisions that allow courts to order the examination of witnesses abroad and to admit evidence obtained through such examinations. The policy objective of the Act is to ensure that courts have the necessary tools to facilitate the efficient and effective administration of justice, particularly in cases where the attendance of a witness from abroad is impractical or unfeasible. Enacted by the Parliament of Australia, the Act aims to streamline the process of obtaining overseas evidence and to ensure that such evidence is admissible in Australian courts under appropriate conditions.
Scope and Application
The Evidence Amendment Act 1985 applies to proceedings in courts across Australia, including both superior and inferior courts, with the Act extending to external Territories. It primarily pertains to the procedures and regulations concerning the examination of witnesses and the admissibility of evidence in civil and criminal cases. The Act allows for the examination of witnesses abroad under specific circumstances, including when a person is outside Australia and unable to attend proceedings in person, or when it would be unduly burdensome or impractical to bring them to Australia. The Act grants superior courts the discretion to order the examination of witnesses abroad either through direct examination, the issuance of a commission, or by requesting judicial authorities of a foreign country to take evidence. It also extends similar powers to superior courts in relation to proceedings before inferior courts. The Act allows for the admissibility of evidence taken from examinations abroad, subject to certain conditions, and does not affect the court’s ability to exclude evidence obtained illegally or evidence that would unfairly prejudice the defendant. Additionally, the Act authorises the Governor-General and relevant authorities to make regulations and rules to govern the practice and procedure of superior courts when dealing with examinations of witnesses abroad.
Key Provisions
- The Evidence Amendment Act 1985 introduces several key amendments to the Evidence Act 1905. Firstly, Section 7j of the Principal Act is amended to allow evidence to be given by an authorised person if it is not reasonably practicable for the person who made or kept the records to provide the evidence, or if calling such a person would cause undue expense. This evidence can only be given if it is relevant to matters specified in sections 7b, 7d, or 7e of the Principal Act. An authorised person is defined as either an Australian Diplomatic Officer or Consular Officer when operating outside Australia, or a member of the Australian Federal Police of the rank of sergeant or above, or a person authorised by the Attorney-General.
- The Act also imposes certain obligations on the parties involved in legal proceedings. For instance, when applying for an order for the examination of a person outside Australia, the party must demonstrate that it is in the interests of justice to do so, considering factors such as the person's willingness and ability to attend in Australia, the materiality of their evidence, and the overall interests of the parties. Courts have the discretion to issue orders for examination either directly or through judicial authorities in a foreign country. Furthermore, the Act mandates that evidence obtained through these orders must adhere to specific admissibility criteria, and courts can exclude evidence if it would unfairly prejudice the defendant or if it was obtained illegally.
- The Evidence Amendment Act 1985 imposes specific consequences for breaches of its provisions. While the Act does not explicitly outline penalties, it does stipulate that evidence obtained illegally or unfairly can be excluded from proceedings. In criminal cases, this means that such evidence cannot be used against the defendant. Additionally, the Act does not override other laws that govern the examination of witnesses outside Australia, ensuring that existing legal frameworks remain intact unless explicitly modified by this Act. The Act also allows for regulations and rules to be made to govern the practice and procedure of superior courts in matters pertaining to these examinations, ensuring a structured approach to their implementation.
- Area of Law
- Evidence Law
- Instrument
- Act
- Concepts
- Commencement Provisions
- Offence Provisions
- Regulatory Standards