An Act to make miscellaneous amendments to the Evidence Act 1995; and to make consequential amendments to the Civil Procedure Act 2005, the Criminal Procedure Act 1986 and other Acts.
This Act is the Evidence Amendment Act 2007.
This Act commences on a day or days to be appointed by proclamation.
The Evidence Act 1995 is amended as set out in Schedule 1.
The Acts specified in Schedule 2 are amended as set out in that Schedule.
This Act is repealed on the day following the day on which all of the provisions of this Act have commenced.
The Evidence (Consequential and Other Provisions) Act 1995 is repealed on that day.
The repeal of those Acts does not, because of the operation of section 30 of the Interpretation Act 1987, affect any amendments made by those Acts.
(Section 3)
Omit “in relation” from section 4 (1).
Insert after note 3:
4 See section 79 of the Judiciary Act 1903 of the Commonwealth for the application of this Act to proceedings in a State court exercising federal jurisdiction.
Omit the section. Insert instead:
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.
See sections 30 and 31 for examples of assistance that may be provided to enable witnesses to overcome disabilities.
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.
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.
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.
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