Evidence (Consequential Amendments) Act 2011 (ACT)

Evidence (Consequential Amendments) Act 2011

A2011-48

Contents

Page

1            Name of Act  2

2            Commencement  2

3            Legislation amended—sch 1  2

4            Repeal of Evidence Act 1971  2

Schedule 1 Legislation amended  3

Part 1.1    Administration and Probate Act 1929  3

Part 1.2    Adoption Act 1993  3

Part 1.3    Animal Welfare Act 1992  4

Part 1.4    Associations Incorporation Act 1991  4

Part 1.5    Australian-American Educational Foundation Act 1966    4

Part 1.6    Building Act 2004  4

Part 1.7    Casino Control Act 2006  4

Part 1.8    Children and Young People Act 2008  5

Part 1.9    Civil Law (Wrongs) Act 2002  5

Part 1.10   Confiscation of Criminal Assets Act 2003                6

Part 1.11   Court Procedures Act 2004  6

Part 1.12   Crimes Act 1900  7

Part 1.13   Crimes (Forensic Procedures) Act 2000                  8

Part 1.14   Crimes (Sentence Administration) Act 2005              8

Part 1.15   Criminal Code 2002  8

Part 1.16   Domestic Violence and Protection Orders Act 2008      9

Part 1.17   Domestic Violence and Protection Orders Regulation 2009 9

Part 1.18   Evidence Act 2011  10

Part 1.19   Evidence (Miscellaneous Provisions) Act 1991          10

Part 1.20   Housing Assistance Act 2007  12

Part 1.21   Human Rights Commission Act 2005                   12

Part 1.22   Legislation Act 2001  12

Part 1.23   Magistrates Court Act 1930  13

Part 1.24   Mediation Act 1997  14

Part 1.25   National Environment Protection Council Act 1994      14

Part 1.26   Nature Conservation Act 1980  15

Part 1.27   Oaths and Affirmations Act 1984  15

Part 1.28   Parentage Act 2004  16

Part 1.29   Partnership Act 1963  16

Part 1.30   Planning and Development Act 2007  16

Part 1.31   Public Health Act 1997  17

Part 1.32   Public Trustee Act 1985  17

Part 1.33   Sale of Motor Vehicles Act 1977  17

Part 1.34   Salvation Army Property Trust Act 1934                17

Part 1.35   Spent Convictions Act 2000  18

Part 1.36   Supreme Court Act 1933  18

Part 1.37   Uniting Church in Australia Act 1977                   18

Evidence (Consequential Amendments) Act 2011

A2011-48

An Act to amend legislation because of the enactment of the Evidence Act 2011, and for other purposes

The Legislative Assembly for the Australian Capital Territory enacts as follows:

1. Name of Act

   This Act is the Evidence (Consequential Amendments) Act 2011.

2. Commencement

   (1)This Act (other than schedule 1, part 1.9) commences on the commencement of the Evidence Act 2011, section 3.

   Note 1The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

   Note 2The Evidence (Miscellaneous Provisions) Amendment Act 2011 makes amendments to the Evidence (Miscellaneous Provisions) Act 1991, pt 5 and pt 7 that will commence immediately before the commencement of this Act, sch 1, pt 1.19.

   (2)Schedule 1, part 1.9 commences on a day fixed by the Minister by written notice.

   (3)If schedule 1, part 1.9 has not commenced within 1 year beginning on this Act’s notification day, it automatically commences on the first day after that period.

   (4)The Legislation Act, section 79 (Automatic commencement of postponed law) does not apply to this Act.

3. Legislation amended—sch 1

   This Act amends the legislation mentioned in schedule 1.

4. Repeal of Evidence Act 1971

   The Evidence Act 1971 (A1971-4) is repealed.

Schedule 1Legislation amended

(see s 3)

Part 1.1Administration and Probate Act 1929

[1.1]New section 9C

insert

9CEvidentiary effect of probate and letters of administration

(1)The probate of a will or letters of administration with a will annexed are evidence of the execution of the will.

(2)The copy of a will annexed to a probate or to letters of administration is evidence of the contents of the will.

(3)The probate of a will is evidence of the death of the testator and, if the probate states the date of death of the testator, of the date of death.

(4)Letters of administration of the estate of a deceased person are evidence of the death of the person and, if the letters of administration state the date of death of the person, of the date of death.

NoteThe Evidence Act 2011, s 92 (1) deals with the admission or use of the grant of probate or letters of administration to prove the death, or date of death, of a person or the execution of a testamentary document.

Part 1.2Adoption Act 1993

[1.2]Section 117

omit

Part 1.3Animal Welfare Act 1992

[1.3]Section 98 (1), note

omit

Part 1.4Associations Incorporation Act 1991

[1.4]Section 115 (3)

omit

[1.5]Section 115 (4) (a)

omit

, or an extract from,

Part 1.5Australian-American Educational Foundation Act 1966

[1.6]Section 5 (3)

omit

Part 1.6Building Act 2004

[1.7]Section 148, note

omit

Part 1.7Casino Control Act 2006

[1.8]Section 142 (3)

omit

Part 1.8Children and Young People Act 2008

[1.9]Section 875 (2), example

omit

·    Evidence Act 1995 (Cwlth)

substitute

·    Evidence Act 2011

Part 1.9Civil Law (Wrongs) Act 2002

[1.10]Chapter 6

omit

[1.11]Dictionary, definitions of agreed expert and appointed expert

omit

[1.12]Dictionary, definition of claim, paragraph (b)

omit

[1.13]Dictionary

omit the definitions of

evidence

expert

expert medical evidence

medical issue

Part 1.10Confiscation of Criminal Assets Act 2003

[1.14]Division 13.4 heading, note

omit

Evidence Act 1995 (Cwlth)

substitute

Evidence Act2011

[1.15]Section 248, note 1

omit

Evidence Act 1995 (Cwlth)

substitute

Evidence Act2011

Part 1.11Court Procedures Act 2004

[1.16]Section 41 (2) (c)

omit

section 9 (Consequential orders)

substitute

section 11 (Consequential orders—pt 2)

[1.17]New part 6A

insert

Part 6AProcedural provisions—criminal proceedings

1. Provision of interpreters

   (1)This section applies if—

   (a)evidence is to be given by a witness in a criminal proceeding through an interpreter; and

   (b)either—

   (i)the witness does not wish to provide the interpreter; or

   (ii)the court considers that the person provided, or proposed to be provided, by the witness as an interpreter is not competent to interpret for the witness in the proceeding.

   NoteThe Evidence Act 2011, s 30 provides that a witness in a proceeding in an ACT court may give evidence 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, a question put to the witness.

   (2)The prosecutor must provide a person who is competent to interpret for the witness in the proceeding.

Part 1.12Crimes Act 1900

[1.18]Section 439 (6)

omit

Part 1.13Crimes (Forensic Procedures) Act 2000

[1.19]Section 42 (4), note 2

omit

outside ACT

substitute

participating States

Part 1.14Crimes (Sentence Administration) Act 2005

[1.20]Section 211 (3), note

substitute

NoteFor the admissibility of a record of a proceeding, see the Evidence Act 2011, s 157.

Part 1.15Criminal Code 2002

[1.21]Section 704 (2)

omit

Evidence Act 1995 (Cwlth), section 13 (Competence: lack of capacity)

substitute

Evidence Act 2011, section 13 (Competence—lack of capacity)

Part 1.16Domestic Violence and Protection Orders Act 2008

[1.22]Section 110

omit

Part 1.17Domestic Violence and Protection Orders Regulation 2009

[1.23]Part 5 heading, note

substitute

NoteThe Evidence Act 2011 deals with the following areas:

·    examination on oath (see s 21)

·    court control over conduct of hearing (see div 2.1.3)

·    privileges (see pt 3.10)

·    proof of court documents (see s 157)

·    requests to produce documents or call witnesses (see div 4.6.1).

[1.24]Section 53 (3), note

omit

Evidence Act 1995 (Cwlth)

substitute

Evidence Act2011

Part 1.18Evidence Act 2011

[1.25]Section 8, new examples

before the note, insert

Examples

1    Bail Act 1992, s 19 (2)

2    Evidence (Miscellaneous Provisions) Act 1991, pt 5

[1.26]Section 8, new note 2

insert

Note 2An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

[1.27]Dictionary, note 2

insert

·    office

Part 1.19Evidence (Miscellaneous Provisions) Act 1991

[1.28]Part 5 heading

substitute

Part 5Certain evidence under court rules not admissible

[1.29]New division 7.3

insert

Division 7.3           Evidence in any proceedings—extended application of Evidence Act

1. Extended application of Evidence Act—interpreters

   The Evidence Act 2011, section 30 applies to a proceeding in an evidence receiving entity.

   Note 1Proceeding—see the Legislation Act, dictionary, pt 1.

   Note 2The Evidence Act 2011, s 30 provides that a witness in a proceeding in an ACT court may give evidence 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, a question put to the witness.

[1.30]Dictionary, definition of ACT court, new note

insert

NoteACT court means the Supreme Court or Magistrates Court, and includes an entity that, in exercising a function under a territory law, is required to apply the laws of evidence.

[1.31]Dictionary, definition of evidence receiving entity, new examples

insert

Examples

1    ACAT

2    judicial commission

3    remuneration tribunal

4    sentence administration board

NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

Part 1.20Housing Assistance Act 2007

[1.32]Section 9 (2), note

omit

Part 1.21Human Rights Commission Act 2005

[1.33]Section 66 (2)

omit

Evidence Act 1995 (Cwlth)

substitute

Evidence Act 2011

Part 1.22Legislation Act 2001

[1.34]Section 170 (2) and note

substitute

(2)However, this section does not affect the operation of the Evidence Act 2011.

NoteThe Evidence Act 2011, s 128 contains provisions that apply if a witness raises these privileges in a proceeding. The privileges have been abolished for bodies corporate (see Evidence Act 2011, s 187).

[1.35]Section 171 (2) and note

substitute

(2)However, this section does not affect the operation of the Evidence Act 2011.

NoteThe Evidence Act 2011, div 3.10.1 contains provisions about client legal privilege.

[1.36]Section 250 (2) and note

substitute

(2)However, subsection (1) does not affect the operation of the Evidence Act 2011, section 160 (Postal articles).

NoteThe Evidence Act2011, s 160 provides a rebuttable presumption that a postal article sent by prepaid post addressed to a person at an address in Australia or an external territory was received on the 4th working day after posting.

[1.37]Dictionary, part 1, definition of oath, note

substitute

NoteThe Evidence Act 2011, div 2.1.2 and the Oaths and Affirmations Act 1984 deal with oaths and affirmations.

Part 1.23Magistrates Court Act 1930

[1.38]Section 141 (5)

omit

[1.39]Section 317 (3) and (4)

omit

section 315 (6)

substitute

section 315 (5)

Part 1.24Mediation Act 1997

[1.40]Section 9

substitute

1. Admissibility of evidence

   (1)Evidence of mediation material is not admissible in a proceeding except in accordance with the Evidence Act 2011, section 131 (Exclusion of evidence of settlement negotiations).

   (2)In this section:

   mediation material means—

   (a)a communication made in a mediation session; or

   (b)a document, whether delivered or not, prepared—

   (i)for or during a mediation session; or

   (ii)following a decision made or undertaking given in a mediation session.

Part 1.25National Environment Protection Council Act 1994

[1.41]Section 34 (4)

omit

Part 1.26Nature Conservation Act 1980

[1.42]Section 138 (2)

omit

Part 1.27Oaths and Affirmations Act 1984

[1.43]Section 2, notes 1 and 2

substitute

Note 1The dictionary at the end of this Act defines certain terms used in this Act.

Note 2A definition in the dictionary applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

[1.44]Dictionary, definitions of court and proceeding

substitute

court includes a tribunal or person having authority to receive evidence—

(a)under a law in force in the ACT; or

(b)by consent of parties.

proceeding means a matter or inquiry, whether civil or criminal, heard or conducted by a court in which evidence is, or may be, received.

Part 1.28Parentage Act 2004

[1.45]Section 48

substitute

1. Proof of orders etc about parentage

   In any proceeding in a Territory court, a document purporting to be any of the following is evidence of the facts stated in it and the matters appearing from it:

   (a)an order or declaration made under this Act;

   (b)an official certificate, entry or record of the making of the order or declaration.

   NoteA certified copy or extract from an order, declaration or certificate is admissible in a proceeding in a Territory court (see Evidence Act 2011, s 155 and s 156).

Part 1.29Partnership Act 1963

[1.46]Section 85 (1), note

omit

Part 1.30Planning and Development Act 2007

[1.47]Section 47 (2), note

omit

Part 1.31Public Health Act 1997

[1.48]Section 135

omit everything before subsection (2), substitute

1. Evidence—costs and expenses    

Part 1.32Public Trustee Act 1985

[1.49]Section 23A (6), definition of legal record, note

omit

Evidence Act 1995 (Cwlth)

substitute

Evidence Act 2011

Part 1.33Sale of Motor Vehicles Act 1977

[1.50]Section 88 (2)

omit

Part 1.34Salvation Army Property Trust Act 1934

[1.51]Section 10

omit

, as the case may be, and judicial notice shall be taken of the signature of the secretary for the time being on every such certificate

Part 1.35Spent Convictions Act 2000

[1.52]Section 19 (9) (b)

substitute

(b)the Evidence Act 2011, part 3.5 (Evidence of judgments and convictions) and part 3.8 (Character).

Part 1.36Supreme Court Act 1933

[1.53]Section 68C (4)

omit

Part 1.37Uniting Church in Australia Act 1977

[1.54]Section 9 (5)

omit

Endnotes

1. Presentation speech

   Presentation speech made in the Legislative Assembly on 20 October 2011.

2. Notification

   Notified under the Legislation Act on 22 November 2011.

3. Republications of amended laws

   For the latest republication of amended laws, see certify that the above is a true copy of the Evidence (Consequential Amendments) Bill 2011, which was passed by the Legislative Assembly on 15 November 2011.

   Clerk of the Legislative Assembly

   © Australian Capital Territory 2011