Evidence Amendment Act 2008
Act No. 135 of 2008 as amended
This compilation was prepared on 4 April 2011
taking into account amendments up to Act No. 5 of 2011
The text of any of those amendments not in force
on that date is appended in the Notes section
The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section
Prepared by the Office of Legislative Drafting and Publishing,
Attorney‑General’s Department, Canberra
Contents
1 Short title [see Note 1]
2 Commencement
3 Schedule(s)
Schedule 1—Uniform evidence amendments
Part 1—Amendments
Evidence Act 1995
Part 2—Transitional provisions
Schedule 2—Other evidence amendments
Evidence Act 1995
Schedule 3—Printed and electronic publication of Acts
Part 1—Main amendments
Amendments Incorporation Act 1905
Part 2—Consequential amendments
Acts Interpretation Act 1901
Carriage of Goods by Sea Act 1991
Legislative Instruments Act 2003
Notes
An Act to amend the law relating to evidence, and for other purposes
1 Short title [see Note 1]
This Act may be cited as the Evidence Amendment Act 2008.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information |
Column 1 | Column 2 | Column 3 |
Provision(s) | Commencement | Date/Details |
1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table | The day on which this Act receives the Royal Assent. | 4 December 2008 |
2. Schedules 1 and 2 | The 28th day after the day on which this Act receives the Royal Assent. | 1 January 2009 |
3. Schedule 3 | A single day to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 12 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. | 4 December 2009 |
Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.
3 Schedule(s)
Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1—Uniform evidence amendments
Part 1—Amendments
Evidence Act 1995
1 Subsection 4(1)
Omit “in relation”.
2 At the end of subsection 4(1)
Add:
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.
Overview
The Evidence Amendment Act 2008 (Cth) was enacted to amend the law relating to evidence, particularly within the framework of the Evidence Act 1995 (Cth). The Act was assented to on 4 December 2008 and commenced on various dates in 2009, with the primary intent of modernising and refining the evidentiary rules to better serve the needs of contemporary legal proceedings. The Act was passed by the Australian Parliament and received Royal Assent, indicating the legislature's commitment to enhancing the evidentiary process. The policy objective behind these amendments is to ensure that the evidence presented in courts is fair, reliable, and appropriately considered within the judicial process, thereby improving the overall integrity of legal proceedings.
Scope and Application
The Evidence Amendment Act 2008 applies to proceedings within the Commonwealth jurisdiction, and its provisions are designed to update and refine the evidentiary rules set out in the Evidence Act 1995. This Act primarily concerns the admissibility of evidence, the credibility of witnesses, and the protections afforded to various types of evidence and witnesses. It applies to all persons involved in legal proceedings, including defendants, witnesses, and legal practitioners, and it encompasses various forms of evidence such as documentary evidence, oral testimony, and expert opinions. The Act also amends other related legislation to ensure consistency and coherence in evidentiary law across different statutes. The amendments introduced by this Act do not apply retrospectively to proceedings that commenced before the Act's commencement date. However, they do apply to proceedings that began after the Act's provisions came into force. This legislative framework aims to ensure that evidence presented in court is reliable, relevant, and fair, while also protecting the rights of individuals involved in legal proceedings.
Key Provisions
- The Evidence Amendment Act 2008 (Act) amends the Evidence Act 1995 (Cth) (Evidence Act) by making various changes to the law of evidence. The key operative sections and what they require or permit are as follows: Section 4(1) provides that a person is not competent to give evidence if they do not have the capacity to understand a question about the fact or to give an answer that can be understood to a question about the fact, and that incapacity cannot be overcome (section 13). Section 41 provides that the court must disallow a question put to a witness in cross-examination if the question is misleading or confusing, unduly annoying, harassing, intimidating, offensive, oppressive, humiliating, or repetitive, put in a manner or tone that is belittling, insulting, or otherwise inappropriate, or has no basis other than a stereotype (subsection 41(1)). Section 50(1) provides that 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 it would not otherwise be possible conveniently to examine the evidence because of the volume or complexity of the documents in question (subsection 50(1)). The Act imposes various obligations and requirements on the parties or entities it governs. For example, it requires that a person who is not competent to give evidence about a fact may be competent to give evidence about other facts (section 13(2)), and that 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 (section 13(3)). The Act also imposes offences, penalties, or civil/criminal consequences for breach, including maximum penalties where stated. For example, it provides that a person must not, without the express permission of a court, print or publish any question that the court has disallowed under section 41 (section 195.1). In addition, it provides that a person who wilfully contravenes certain provisions of the Act is liable to a penalty not exceeding 50 penalty units (subsection 198(2)).
- Area of Law
- Civil Litigation & Procedure
- Instrument
- Act
- Concepts
- Commencement Provisions
- Definitions & Interpretation
- Offence Provisions
- Reporting & Disclosure Obligations
- Repeal & Amendment
- Transitional Provisions