Evidence (Miscellaneous Provisions) Act 1958 (Vic)

Version No. 199

Evidence (Miscellaneous Provisions) Act 1958

No. 6246 of 1958

Version incorporating amendments as at

6 September 2023

TABLE OF PROVISIONS

Section  Page

1Short title and commencement

3Definitions

Part I—The means of obtaining evidence

Division 1—Orders and commissions to examine witnesses

4Order to examine witnesses

6Operation of other laws

Division 1A—Examination of witnesses abroad

9ADefinitions

9BProceedings in superior courts

9CProceedings in inferior courts

9DExclusion of evidence in criminal proceeding

9EOperation of other laws

Division 1B—Examination of witnesses outside the State but within Australia

9FApplication of Division

9GDefinitions

9HProceedings in superior courts

9IProceedings in inferior courts

9JExclusion of evidence in criminal proceedings

9KOperation of other laws

Division 1C—Taking of evidence for foreign and Australian courts

9LDefinitions

9MApplication to the Supreme Court for assistance in obtaining evidence for proceedings in other court

9NPower of the Supreme Court to give effect to application for assistance

9OPrivilege of witnesses

9POffence

9QOperation of other laws

Division 3—Prisoners

12Prisoner may be brought before court to give evidence without writ of habeas corpus

Division 6—Disclosure of information relating to applications for legal aid

21DDefinitions

21EDisclosure of information etc. relating to proposed applications

21FDisclosure of information etc. relating to applications

21GDisclosure of information etc. where applicant has died

21HApplication of this Division

Division 7—Family mediations

21IDefinitions

21JAdmissions etc. made at mediation conferences

Division 8—Dispute settlement centres

21KDefinitions

21LAdmissions etc. at mediation conferences

21MConfidentiality

21NExoneration from liability

Part II—Witnesses

Division 2—Privileges disabilities and obligations of witnesses

28Confessions to doctors

Division 2A—Confidential communications and protected health information

32ABGuiding principles

32BDefinitions

32BAMeaning of protected health information

32CExclusion of evidence of confidential communications and protected health information

32CAApplicant for leave must give notice—civil proceedings

32CBPersons other than parties appearing and making submissions as to leave—civil proceedings

32CCApplicant for leave must give notice—criminal proceedings

32CDProsecuting party to ensure notice is given to protected person—criminal proceedings

32CEPersons other than parties appearing and making submissions as to leave—criminal proceedings

32CFProduction of document for purposes of determining application for leave

32DRestriction on granting leave

32ELimitations on privilege

32FAncillary orders available on a granting of leave

32GOperation of Division

Part IIAA—Witness identity protection

Division 1—Introductory

42BADefinitions

Division 2—Witness identity protection certificates for local operatives

42BBGiving witness identity protection certificate

42BCStatutory declaration by local operative

42BDForm of witness identity protection certificate

42BEProtection of decision to give certificate

42BFCancellation of witness identity protection certificate

42BGPermission to give information disclosing operative's identity etc.

42BHDisclosure offences

42BIReports about witness identity protection certificates

42BJDelegation

Division 3—Interstate witness identity protection certificates

42BKApplication of Division

42BLFiling and notification

42BMEffect of interstate witness identity protection certificate

42BNOrders to protect interstate operative's identity etc.

42BODisclosure of interstate operative's identity to presiding officer

42BPApplication for disclosure of interstate operative's identity etc.

42BQSuppression and protection orders

42BRDirections to jury

42BSDisclosure offences

Part IIA—Use of audio visual and audio links

Division 1—Definitions

42CDefinitions

Division 2—Persons other than accused

42DApplication of Division

42EAppearance, etc. by audio visual link or audio link

42FSpecial provisions applicable to certain proceedings involving children

42GTechnical requirements for audio visual links and audio links

42HCosts

42ICertain other laws not affected

Division 3—Appearance by the accused

42JApplication of Division

42JAAppearance of adult accused before Magistrates' Court

42KAppearance of adult accused before court other than Magistrates' Court

42LMaking of direction for physical appearance in section 42JA or 42K(1) proceedings

42MMaking of direction for audio visual appearance in section 42JA or 42K(2) proceedings

42MAAMaking of direction for audio visual appearance in section 42JA(3) proceedings

42MAAppearance of adult accused in proceedings other than section 42JA or 42K proceedings

42NApplication for making of direction under section 42MA

42OAppearance before court of accused who is a child

42PMaking of direction for audio visual appearance by child

42RTechnical requirements for audio visual appearance by accused

42RAAudio link appearance by accused in certain circumstances

42RBTechnical requirements for audio link appearance by accused

42SProtection of communication between accused and legal representative

42TApplication of Surveillance Devices Act 1999

Division 4—General

42UPutting documents to a remote person

42UAPractice directions

42WApplication of laws about witnesses, etc.

42XArraignment

42YHearing not invalid because of failure to comply with technical requirements

42YARepeal of temporary COVID-19 measures

Part III—Proof of documents, proof of facts by documents and document unavailability

Division 2A—Reproductions of documents

53QMicro-film etc. may be preserved in lieu of document

Division 4—Further provisions relating to Australasian documents

59Definitions

Division 5—Further provisions relating to Victorian documents

70Mode of proving proclamations, orders and regulations of Board of Land and Works

71Government Gazette to be evidence of act of Board of Land and Works

74Evidence of contents of will

Division 6—Judicial notice

80Judicial notice of certain seals etc

81Effect of judicial or official notice

Division 9—Document unavailability

89AMeaning of unavailability of document

89BCourt may make ruling or order

89CMatters the court must consider

89DRelationship of this Division with VCAT Act

89EOperation of Public Records Act 1973

89FDivision to be in addition to Evidence Act 2008

Part IV—Particular affidavits

Division 12—Miscellaneous

126BFalse or misleading statement as to swearing etc. of affidavit

Part VI—Recording of evidence

130Power to person acting judicially to direct that evidence be recorded

131As to methods of recording evidence

134Persons recording evidence under this Part to be officers of the court

135Records made under this Part to be received as prima facie evidence of matter therein contained

137Penalty for falsely recording evidence

140Power to Governor in Council to regulate fees

Part VII—Offences relating to false documents and false certificates

142Forgery, using etc. false documents an indictable offence

143Printing or using documents falsely purporting to be printed by government printer an indictable offence

144Giving false certificates an indictable offence

145Interpretation provisions to apply to this Part

Part VIII—Miscellaneous

149AAdmissions of fact in confiscation proceedings

151ASupreme Court—limitation of jurisdiction

152Regulations

155Transitional provision—Magistrates' Court (Committal Proceedings) Act 2000

156ATransitional provision—Sentencing (Further Amendment) Act 2005

158ATransitional provision—Crimes (Sexual Offences) Act 2006

159Transitional provision—Crimes (Sexual Offences) (Further Amendment) Act 2006

160Transitional provision—Justice Legislation Amendment (Sex Offences Procedure) Act 2008

161Transitional provision—Statute Law Amendment (Evidence Consequential Provisions) Act 2009

162Transitional provision—interpretation of references

163Transitional provision—Criminal Procedure Act 2009

164Transitional provision—Inquiries Act 2014

165Validation of certain acts and documents

166Transitional provision—Jury Directions and Other Acts Amendment Act 2017

166ATransitional provision—COVID-19 Omnibus (Emergency Measures) Act 2020

167Transitional provision—Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021

168Transitional provision—Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022

Schedules

Second Schedule

═══════════════

Endnotes

1      General information

2      Table of Amendments

3      Explanatory details

Version No. 199

Evidence (Miscellaneous Provisions) Act 1958

No. 6246 of 1958

Version incorporating amendments as at

6 September 2023

BE IT ENACTED by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say):

1Short title and commencement

This Act may be cited as the Evidence (Miscellaneous Provisions) Act 1958, and shall come into operation on a day to be fixed by proclamation of the Governor in Council published in the Government Gazette.

*                *                *                *                *

3Definitions

(1)In this Act unless inconsistent with the context or subject-matter—

authorised deposit-taking institution has the same meaning as in the Banking Act 1959 of the Commonwealth;

business includes public administration and any business profession occupation calling trade or undertaking whether engaged in or carried on by the Crown, or by a statutory authority, or by any other person, whether or not it is engaged in or carried on for profit;

child means a person who is under the age of 18 years;

Note

See section 42C for the meaning of child for the purposes of Part IIA.

cognitive impairment includes impairment because of mental illness, intellectual disability, dementia or brain injury;

courtin relation to any legal proceeding, includes a person acting judicially;

criminal proceedings means any proceedings for or with respect to the committal for trial of any person for an indictable offence or the trial of any person for a summary or indictable offence;

documentincludes, in addition to a document in writing—

(a)any book map plan graph or drawing;

(b)any photograph;

(c)any label marking or other writing which identifies or describes any thing of which it forms part, or to which it is attached by any means whatsoever;

(d)any disc tape sound track or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom;

(e)any film negative tape or other device in which one or more visual images are embodied so as to be capable (as aforesaid) of being reproduced therefrom; and

(f)anything whatsoever on which is marked any words figures letters or symbols which are capable of carrying a definite meaning to persons conversant with them;

film includes a microfilm and a microfiche;

*                *                *                *                *

lawyer means an Australian lawyer;

legal practitioner means an Australian legal practitioner;

legal proceeding includes any civil criminal or mixed proceeding and any inquiry in which evidence is or may be given before any court or person acting judicially including a Royal Commission or Board of Inquiry under the Inquiries Act 2014;

person acting judicially includes any court judge arbitrator Associate Judge and any person or body having by law or by consent of parties authority to hear receive and examine evidence and any officer in any public department having in the discharge of his duties authority to examine evidence;

police officer has the same meaning as in the Victoria Police Act 2013;

*                *                *                *                *

statement includes any representation of fact whether made in words or otherwise.

(2)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.

PART I—THE MEANS OF OBTAINING EVIDENCE

Division 1—Orders and commissions to examine witnesses

4Order to examine witnesses

(1)The Supreme Court, in its discretion and where it appears in the interests of justice to do so, on the application of a party to a civil or criminal proceeding before the Supreme Court, may make, in relation to a person in Victoria, an order for the issue of a commission for the examination of the person on oath or affirmation at any place in Victoria.

(1A)The County Court, in its discretion and where it appears in the interests of justice to do so, on the application of a party to a civil or criminal proceeding before the County Court, may make, in relation to a person in Victoria, an order for the issue of a commission for the examination of the person on oath or affirmation at any place in Victoria.

(2)In determining whether it is in the interests of justice to make an order under subsection (1) or (1A) in relation to the taking of evidence of a person, the matters to which the court must have regard include the following—

(a)whether the person will be able to give evidence material to any issue to be tried in the proceeding;

(b)whether, having regard to the interests of other parties to the proceeding, justice will be better served by granting or refusing the order.

(3)If the Supreme Court makes an order under subsection (1), or the County Court makes an order under subsection (1A), the Court, in its discretion, at the time of the making of the order or at a subsequent time, may give such directions as it thinks just relating to the procedure to be followed in and in relation to the examination, including directions as to the time, place and manner of the examination, and to any other matter that the Court thinks relevant.

(4)Subject to subsection (5), the Supreme Court or the County Court may, on such terms, if any, as it thinks fit, permit a party to the proceeding to tender as evidence in the proceeding the evidence of a person taken in any examination held as a result of an order made under subsection (1) or (1A) or a record of that evidence.

(5)Evidence of a person so tendered is not admissible if—

(a)it appears to the satisfaction of the Supreme Court or County Court at the hearing of the proceeding that the person is able to attend the hearing; or

(b)the evidence would not have been admissible had it been given or produced at the hearing of the proceeding.

(6)If it is in the interests of justice to do so, the Supreme Court or County Court may, in its discretion, exclude from the proceeding evidence taken in an examination held as a result of an order made under subsection (1) or (1A), whether or not it is otherwise admissible.

(7)In this section, a reference to evidence taken in an examination includes a reference to—

(a)a document produced at the examination; and

(b)answers made, whether in writing, or orally and reduced to writing, to any written interrogatories presented at the examination.

*                *                *                *                *

6Operation of other laws

This Division is not intended to exclude or limit the operation of any other law, or of any rule or regulation made under, or in pursuance of, such a law, that makes provision for the examination of witnesses for the purpose of a proceeding in Victoria.

*                *                *                *                *

Division 1A—Examination of witnesses abroad

9ADefinitions

In this Division—

Australia includes the Territories of the Commonwealth (whether internal or external) for the government of which as a Territory provision is made by any Commonwealth Act;

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 Division;

inferior court means a court of the State, except when exercising federal jurisdiction, not being a superior court;

superior court means the Supreme Court or County Court, except when exercising federal jurisdiction.

9BProceedings in superior courts

(1)In any civil or criminal proceeding before a superior court, the court may, in its discretion and where it appears in the interests of justice to do so, on the application of a party to the proceeding, make, in relation to a person outside Australia, an order—

(a)for the examination of the person on oath or affirmation at any place outside Australia before a judge of the court, an officer of the court or such other person as the court may appoint; or

(b)for the issue of a commission for the examination of the person on oath or affirmation at any place outside Australia; or

(c)for the issue of a letter of request to the judicial authorities of a foreign country to take, or to cause to be taken, the evidence of the person.

(2)In determining whether it is in the interests of justice to make an order under subsection (1) in relation to the taking of evidence of a person, the matters to which the court must have regard include the following—

(a)whether the person is willing or able to come to Victoria to give evidence in the proceeding;

(b)whether the person will be able to give evidence material to any issue to be tried in the proceeding;

(c)whether, having regard to the interests of other parties to the proceeding, justice will be better served by granting or refusing the order.

(3)If a court makes an order under subsection (1) of the kind referred to in subsection (1)(a) or (b), the court, in its discretion, at the time of the making of the order or at a subsequent time, may give such directions as it thinks just relating to the procedure to be followed in and in relation to the examination, including directions as to the time, place and manner of the examination, and to any other matter that the court thinks relevant.

(4)If a court makes, in relation to a proceeding, an order under subsection (1) of the kind referred to in subsection (1)(c) in relation to the taking of evidence of a person, the court may, in its discretion, include in the order a request as to any matter relating to the taking of that evidence, including any of the following matters—

(a)the examination, cross-examination or re-examination of the person, whether the evidence of the person is given orally, upon affidavit or otherwise;

(b)the attendance of the legal representative of each party to the proceeding and the participation of those persons in the examination in appropriate circumstances;

(c)any prescribed matter.

(5)Subject to subsection (6), the court may, on such terms, if any, as it thinks fit, permit a party to the proceeding to tender as evidence in the proceeding the evidence of a person taken in any examination held as a result of an order made under subsection (1) or a record of that evidence.

(6)Evidence of a person so tendered is not admissible if—

(a)it appears to the satisfaction of the court at the hearing of the proceeding that the person is in Victoria and is able to attend the hearing; or

(b)the evidence would not have been admissible had it been given or produced at the hearing of the proceeding.

(7)If it is in the interests of justice to do so, the court may, in its discretion, exclude from the proceeding evidence taken in an examination held as a result of an order made under subsection (1), whether or not it is otherwise admissible.

(8)In this section, a reference to evidence taken in an examination includes a reference to—

(a)a document produced at the examination; and

(b)answers made, whether in writing, or orally and reduced to writing, to any written interrogatories presented at the examination.

9CProceedings in inferior courts

(1)The Supreme Court may, in its discretion, on the application of a party to a civil or criminal proceeding before an inferior court exercise the same power to make an order of the kind referred to in section 9B(1) for the purpose of that proceeding as the Supreme Court has under that subsection for the purpose of a proceeding in the Supreme Court.

(2)Subsections (5), (6) and (7) of section 9B apply in relation to evidence taken in an examination held as a result of an order made by a court by virtue of this section in relation to an inferior court as if—

(a)in subsections (5), (6) and (7)—

(i)a reference to the proceeding were a reference to the proceeding in the inferior court; and

(ii)a reference to the court were a reference to the inferior court; and

(b)in subsections (5) and (7), a reference to an order made under subsection (1) were a reference to an order made by a court by virtue of this section.

9DExclusion of evidence in criminal proceeding

This Division does not affect the power of a court in a criminal proceeding to exclude evidence that has been obtained illegally or would, if admitted, operate unfairly against the accused.

9EOperation of other laws

This Division is not intended to exclude or limit the operation of any law of the State, or of any rule or regulation made under, or in pursuance of, such a law, that makes provision for the examination of witnesses outside Australia for the purpose of a proceeding in the State.

Division 1B—Examination of witnesses outside the State but within Australia

9FApplication of Division

This Division does not apply to an examination outside Australia, and references in this Division to persons, acts, matters or things outside the State shall be read as excluding those outside Australia.

9GDefinitions

In this Division—

Australia includes the Territories of the Commonwealth (whether internal or external) for the government of which as a Territory provision is made by any Commonwealth Act;

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 Division;

inferior court means a court of the State, except when exercising federal jurisdiction, not being a superior court;

judicial authority, in relation to a place outside the State, means a court or person prescribed as an appropriate judicial authority for that place;

superior court means the Supreme Court or County Court, except when exercising federal jurisdiction.

9HProceedings in superior courts

(1)In any civil or criminal proceedings before a superior court, the court may, in its discretion and where it appears in the interests of justice to do so, make, in relation to a person outside the State, an order—

(a)for the examination of the person on oath or affirmation at any place outside the State before a judge of the court, an officer of the court or such other person as the court may appoint; or

(b)for the issue of a commission for the examination of the person on oath or affirmation at any place outside the State; or

(c)for the issue of a letter of request to the judicial authorities of a place outside the State to take, or to cause to be taken, the evidence of the person.

(2)In determining whether it is in the interests of justice to make an order under subsection (1) in relation to the taking of evidence of a person, the matters to which the court shall have regard include the following—

(a)whether the person is willing or able to come to Victoria to give evidence in the proceeding;

(b)whether the person will be able to give evidence material to any issue to be tried in the proceeding;

(c)whether, having regard to the interests of the parties to the proceeding, justice will be better served by granting or refusing the order.

(3)If a court makes an order under subsection (1) of the kind referred to in subsection (1)(a) or (b), the court, in its discretion, at the time of the making of the order or at a subsequent time, may give such directions as it thinks just relating to the procedure to be followed in and in relation to the examination, including directions as to the time, place and manner of the examination, and to any other matter that the court thinks relevant.

(4)If a court makes, in relation to a proceeding, an order under subsection (1) of the kind referred to in subsection (1)(c) in relation to the taking of evidence of a person, the court may, in its discretion, include in the order a request as to any matter relating to the taking of that evidence, including any of the following matters—

(a)the examination, cross-examination or re-examination of the person, whether the evidence of the person is given orally, upon affidavit or otherwise;

(b)the attendance of the legal representative of each party to the proceeding and the participation of those persons in the examination in appropriate circumstances;

(c)any prescribed matter.

(5)Subject to subsection (6), the court may, on such terms, if any, as it thinks fit, permit a party to the proceeding to tender as evidence in the proceeding the evidence of a person taken in an examination held as a result of an order made under subsection (1) or a record of that evidence.

(6)Evidence of a person so tendered is not admissible if—

(a)it appears to the satisfaction of the court at the hearing of the proceeding that the person is in Victoria and is able to attend the hearing; or

(b)the evidence would not have been admissible had it been given or produced at the hearing of the proceeding.

(7)If it is in the interests of justice to do so, the court may, in its discretion, exclude from the proceeding evidence taken in an examination held as a result of an order made in subsection (1) whether or not it is otherwise admissible.

(8)In this section a reference to evidence taken in an examination includes a reference to—

(a)a document produced at the examination; and

(b)answers made, whether in writing, or orally and reduced to writing, to any written interrogatories presented at the examination.

9IProceedings in inferior courts

(1)The Supreme Court may, in its discretion, on the application of a party to a civil or criminal proceeding before an inferior court, exercise the same power to make an order of the kind referred to in section 9H(1) for the purpose of that proceeding as the Supreme Court has under that subsection for the purpose of a proceeding in the Supreme Court.

(2)Subsections (5), (6) and (7) of section 9H apply in relation to evidence taken in an examination held as a result of an order made by a court by virtue of this section in relation to an inferior court as if—

(a)in subsections (5), (6) and (7)—

(i)a reference to the proceeding were a reference to the proceeding in the inferior court; and

(ii)a reference to the court were a reference to the inferior court; and

(b)in subsections (5) and (7), a reference to an order made under subsection (1) were a reference to an order made by a court by virtue of this section.

9JExclusion of evidence in criminal proceedings

This Division does not affect the power of a court in a criminal proceeding to exclude evidence that has been obtained illegally or would, if admitted, operate unfairly against the accused.

9KOperation of other laws

This Division is not intended to exclude or limit the operation of any other law of the State, or of any rule or regulation made under, or in pursuance of such a law, that makes provision for the examination of witnesses outside the State for the purpose of a proceeding in the State.

Division 1C—Taking of evidence for foreign and Australian courts[1]

9LDefinitions

In this Division—

Australia includes the Territories of the Commonwealth (whether internal or external) for the government of which as a Territory provision is made by any Commonwealth Act;

proceedings means—

(a)proceedings in any civil or commercial matter; or

(b)proceedings in or before a court in relation to the commission of an offence or an alleged offence;

property includes any land, chattel or other corporeal property of any description;

request includes any commission, order or other process issued by or on behalf of a requesting court;

requesting court means a court or tribunal by or on whose behalf a request is issued, as referred to in section 9M.

9MApplication to the Supreme Court for assistance in obtaining evidence for proceedings in other court

(1)If an application is made to the Supreme Court for an order for evidence to be obtained in Victoria and the Supreme Court is satisfied—

(a)that the application is made in pursuance of a request issued by or on behalf of a court or tribunal exercising jurisdiction in a place outside Victoria; and

(b)that the evidence to which the application relates is to be obtained for the purposes of proceedings which either have been instituted before the requesting court or whose institution before that court is contemplated—

the following provisions of this Part apply.

(2)This Part does not apply in respect of proceedings relating to the commission of an offence or an alleged offence unless the requesting court is a court of a place in Australia or of New Zealand.

9NPower of the Supreme Court to give effect to application for assistance

(1)The Supreme Court has power, on any such application as is mentioned in section 9M, by order to make such provision for obtaining evidence in Victoria as may appear to the court to be appropriate for the purpose of giving effect to the request in pursuance of which the application is made.

(2)An order under this section may require a specified person to take such steps as the court may consider appropriate for that purpose.

(3)Without limiting the generality of subsections (1) and (2), an order under this section may, in particular, make provision—

(a)for the examination of witnesses, either orally or in writing;

(b)for the production of documents;

(c)for the inspection, photographing, preservation, custody or detention of any property;

(d)for the taking of samples of any property and the carrying out of any experiments on or with any property;

(e)for the medical examination of any person;

(f)without limiting paragraph (e), for the taking and testing of samples of blood from any person.

(4)An order under this section shall not require any particular steps to be taken unless they are steps which can be required to be taken by way of obtaining evidence for the purposes of proceedings in the Supreme Court (whether or not proceedings of the same description as those to which the application for the order relates).

(5)Subsection (4) does not preclude the making of an order requiring a person to give testimony (either orally or in writing) otherwise than on oath or by affirmation where this is asked for by the requesting court.

(6)An order under this section shall not require a person—

(a)to state what documents relevant to the proceedings to which the application for the order relates are or have been in the person's possession, custody or power; or

(b)to produce any documents other than particular documents specified in the order and appearing to the court making the order to be, or to be likely to be, in the person's possession, custody or power.

(7)A person who, by virtue of an order under this section, is required to attend at any place shall be entitled to the like conduct money and payment for expenses and loss of time on attendance as a witness in proceedings before the Supreme Court.

9OPrivilege of witnesses

(1)A person shall not be compelled by virtue of an order under section 9N to give any evidence which the person could not be compelled to give—

(a)in similar proceedings in Victoria; or

(b)in similar proceedings in the place in which the requesting court exercises jurisdiction.

(2)Subsection (1)(b) does not apply unless the claim of the person in question to be exempt from giving evidence is either—

(a)supported by a statement contained in the request (whether it is so supported unconditionally or subject to conditions that are fulfilled); or

(b)conceded by the applicant for the order.

(3)Where such a claim by any person is not so supported or conceded, the person may (subject to the other provisions of this section) be required to give the evidence to which the claim relates, but that evidence shall not be transmitted to the requesting court if that court, on the matter being referred to it, upholds the claim.

(4)In this section, references to giving evidence include references to answering any question and to producing any document, and the reference in subsection (3) to the transmission of evidence given by a person shall be construed accordingly.

9POffence

If any person, in giving any testimony (either orally or in writing) otherwise than on oath or by affirmation, where required to do so by an order under section 9N, makes a statement—

(a)which the person knows to be false in a material particular; or

(b)which is false in a material particular and which the person does not believe to be true—

the person is guilty of an offence.

Penalty:imprisonment for 5 years.

9QOperation of other laws

This Part is not intended to exclude or limit the operation of any other law of the State that makes provision for the taking of evidence in the State for the purpose of a proceeding outside the State.

*                *                *                *                *

Division 3—Prisoners

12Prisoner may be brought before court to give evidence without writ of habeas corpus

Any person in custody in any gaol police gaol prison penal establishment youth justice centre or remand centre for any cause or in the custody of the sheriff his deputy or any of his officers for any cause may upon an order in writing (in the form or to the effect in the Second Schedule) made as hereinafter provided be brought before, or be brought to another place specified in the order where facilities exist to enable the person (by audio or audio visual link within the meaning of Part IIA) to appear before[2], any court judge or person acting judicially or person authorized to take the examination of witnesses under Division one of this Part to give evidence in or upon any legal proceedings without a writ of habeas corpus; and every such person is to be returned in due course to the place from which he or she was brought, unless released from custody according to law.

Where such proceedings are to take place before any court of which there is a judge appointed and commonly known by that name then such order shall be made by a judge of such court.

Where such proceedings are to take place before the County Court then such order shall be made by a judge thereof.

Where such proceedings are to take place before a special referee arbitrator or umpire or before any person authorized under Division one of this Part to take any examination within Victoria such order shall be made by the Supreme Court.

In all other cases such order shall be made by the Supreme Court or a magistrate.

Nothing in this section shall limit the effect of the provisions of the Coroners Act 2008 relating to the attendance of prisoners at inquests.

*                *                *                *                *

*                *                *                *                *

Division 6—Disclosure of information relating to applications for legal aid

21DDefinitions

In this Division, unless inconsistent with the context or subject-matter—

applicant means a person—

(a)who proposes to apply—

(i)to a legal aid body for legal aid; or

(ii)to Victoria Legal Aid for legal assistance under the Legal Aid Act 1978; or

(b)who applies to a legal aid body for legal aid;

legal aid means—

(a)the provision of legal services without charge or upon condition that a person makes a payment or payments towards the cost of providing those services, including any out-of-pocket expenses incurred or to be incurred in providing those services;

(b)the provision in respect of legal services provided or to be provided by a private law practice or private legal practitioner of the whole or part of the cost of providing those services, including any out-of-pocket expenses incurred or to be incurred in providing those services; or

(c)both (a) and (b);

legal aid body means a body of persons whether corporate or unincorporate the sole or principal function of which is the provision of legal aid, but does not include a private law practice or Victoria Legal Aid;

*                *                *                *                *

member of a legal aid body means any member of a legal aid body, any employee of a legal aid body and any person working with or for a legal aid body (whether or not for fee or reward);

private law practice has the same meaning as in the Legal Aid Act 1978;

private legal practitioner has the same meaning as in the Legal Aid Act 1978;

*                *                *                *                *

Victoria Legal Aid means Victoria Legal Aid established under the Legal Aid Act 1978.

21EDisclosure of information etc. relating to proposed applications

(1)Any person or any member of a legal aid body who advises an applicant in relation to or assists an applicant in the preparation of a proposed application for legal aid shall not without the consent of the applicant—

(a)produce in a court any document received by the person body or member in relation to the proposed application for legal aid; or

(b)communicate or permit to be communicated except to a private law practice or private legal practitioner acting for the applicant or give in evidence in a court any information received by the person body or member in relation to the proposed application for legal aid.

(2)A court shall not have power to compel any such person or member to produce any such document or communicate or give in evidence any such information unless the applicant has consented to that production or communication or to the giving of that evidence.

(3)In this section, proposed application for legal aid means an application proposed to be made—

(a)to a legal aid body for legal aid; or

(b)to Victoria Legal Aid for legal assistance under the Legal Aid Act 1978.

21FDisclosure of information etc. relating to applications

(1)A member of a legal aid body shall not without the consent of the applicant—

(a)produce in a court any document received by the body or member in relation to an application made to the body for legal aid; or

(b)communicate or permit to be communicated except to a private law practice or private legal practitioner acting for the applicant or give in evidence in a court any information received by the body or member in relation to an application made to the body for legal aid.

(2)A court shall not have power to compel any member of a legal aid body to produce any such document or communicate or give in evidence any such information unless the applicant has consented to that production or communication or to the giving of that evidence.

21GDisclosure of information etc. where applicant has died

(1)Where an applicant has died, a consent for the purposes of this Division may be given by the legal personal representative or spouse of the deceased applicant or a child of the deceased applicant.

(2)This Division shall cease to have any application at and from the time at which there is no legal personal representative spouse or child of the deceased applicant.

21HApplication of this Division

(1)This Division applies whether or not—

(a)an application proposed to be made to a legal aid body or Victoria Legal Aid is made; or

(b)a legal aid body, to which an application is made provides legal aid.

(2)Nothing in this Division applies to or in relation to any investigation of or legal proceeding brought in respect of the giving of false information in or in connexion with an application to a legal aid body for legal aid or to Victoria Legal Aid for legal assistance under the Legal Aid Act 1978.

Division 7—Family mediations

21IDefinitions

(1)In this Division—

family mediation centre means an organization declared by Order of the Governor in Council to be a family mediation centre;

family mediator means a person who is—

(a)a marriage counsellor under the Family Law Act 1975 of the Commonwealth as amended and in force for the time being; or

(b)declared a family mediator under subsection (2).

(2)The Secretary to the Department of Justice may declare a person to be a family mediator by notice published in the Government Gazette.

21JAdmissions etc. made at mediation conferences

Evidence of anything said or of any admission or agreement made at or of any document prepared for the purpose of a conference with a family mediator in connexion with a family mediation centre is not admissible in any court or legal proceeding.

Division 8—Dispute settlement centres[3]

21KDefinitions

In this Division—

dispute settlement centre means an organisation declared by Order of the Governor in Council to be a dispute settlement centre;

mediator means a person who is declared, by notice by the Secretary to the Department of Justice published in the Government Gazette, to be a mediator.

21LAdmissions etc. at mediation conferences

Evidence of anything said or of any admission or agreement made at, or of any document prepared for the purpose of, a conference with a mediator in connection with a dispute settlement centre is not admissible in any court or legal proceeding, except with the consent of all persons who were present at that conference.

21MConfidentiality

(1)A person who is or has been—

(a)a mediator; or

(b)a member or employee of a dispute settlement centre; or

(c)a person working with or for a dispute settlement centre (whether or not for fee or reward)—

shall not communicate to any other person or publish any information or document acquired by the person by reason of being such a mediator, member, employee or person unless the communication or publication—

(d)is made with the consent of the person from whom the information or document was obtained; or

(e)is made for the purposes of evaluating the operation and activities of dispute settlement centres and does not disclose the identity of any person without his or her consent; or

(f)is made by a person who reasonably considers that it is necessary to disclose the information or document for the purpose of preventing or minimising injury or damage to any person or property.

Penalty:20 penalty units.

*                *                *                *                *

21NExoneration from liability

A matter or thing done in good faith for the purpose of a conference with a mediator by a person who is—

(a)a mediator; or

(b)a member or employee of a dispute settlement centre; or

(c)a person working with or for a dispute settlement centre (whether or not for fee or reward)—

does not subject the person to any action, liability, claim or demand.

PART II—WITNESSES

*                *                *                *                *

Division 2—Privileges disabilities and obligations of witnesses

*                *                *                *                *

*                *                *                *                *

28Confessions to doctors

*                *                *                *                *

(2)No physician or surgeon shall without the consent of his patient divulge in any civil suit action or proceeding any information which he has acquired in attending the patient and which was necessary to enable him to prescribe or act for the patient.

(3)Where a patient has died, no physician or surgeon shall without the consent of the legal personal representative or spouse of the deceased patient or a child of the deceased patient divulge in any civil suit action or proceeding any information which the physician or surgeon has acquired in attending the patient and which was necessary to enable the physician or surgeon to prescribe or act for the patient.

(4)Subsection (3) shall cease to have any application to or in relation to any civil suit action or proceeding at and from the time at which there is no legal personal representative spouse or child of the deceased patient.

(5)Subsections (2) and (3) do not apply to or in relation to—

(a)an action brought under Part III of the Wrongs Act 1958 to recover damages for the death of the patient;

(b)proceedings brought under the Workers Compensation Act 1958 or the Accident Compensation Act 1985 or the Workplace Injury Rehabilitation and Compensation Act 2013 to recover compensation for the death of the patient; or

(c)any civil suit action or proceeding in which the sanity or testamentary capacity of the patient is the matter in dispute.

*                *                *                *                *

*                *                *                *                *

*                *                *                *                *

*                *                *                *                *

Division 2A—Confidential communications and protected health information

32ABGuiding principles

It is the intention of Parliament that in interpreting and applying this Division in any legal proceeding that relates (wholly or partly) to a charge for a sexual offence, courts are to have regard to the fact that—

(a)there is a high incidence of sexual violence within society; and

(b)sexual offences are significantly under-reported; and

(c)a significant number of sexual offences are committed against women, children and other vulnerable persons including persons with a cognitive impairment; and

(d)offenders are commonly known to their victims; and

(e)sexual offences often occur in circumstances where there is unlikely to be any physical signs of an offence having occurred.

32BDefinitions

(1)In this Division—

applicant for leave means a party that applies for leave under section 32C(1);

civil proceeding means any proceeding in a court other than a criminal proceeding;

confidential communication means a communication, whether oral or written, made in confidence by a person against whom a sexual offence has been, or is alleged to have been committed to a registered medical practitioner or counsellor in the course of the relationship of medical practitioner and patient or counsellor and client, as the case requires, whether before or after the acts constituting the offence occurred or are alleged to have occurred;

confidential statement has the meaning given by section 32CE(2);

counsellor means a person who is treating a person for an emotional or psychological condition;

harm includes actual physical bodily harm, financial loss, stress, shock, damage to reputation and emotional or psychological harm (such as shame, humiliation or fear);

held, in relation to protected health information, has the meaning given by section 5 of the Health Records Act 2001;

*                *                *                *                *

protected evidence means evidence that is protected from being produced or adduced by section 32C(1);

protected health information has the meaning given by section 32BA;

protected identity information, in relation to a person, is information about, or enabling a person to ascertain, the address (including a private, business or official address) or telephone number (including a private, business or official telephone number) of the person;

protected person means—

(a)in relation to a confidential communication—the person who made the communication; or

(b)in relation to protected health information—the person whom that information is about;

registered medical practitioner means a person registered under the Health Practitioner Regulation National Law to practise in the medical profession (other than as a student);

sexual offence means an offence to which clause 1 of Schedule 1 to the Sentencing Act 1991 applies.

(2)For the purposes of this Division, a communication may be made in confidence even if it is made in the presence of a third party if the third party's presence is necessary to facilitate communication or further the treatment or counselling process.

32BAMeaning of protected health information

(1)In this Division, health information is protected health information for the purposes of a proceeding if—

(a)the proceeding is a criminal proceeding; and

(b)the proceeding relates (wholly or partly) to a charge for a sexual offence; and

(c)the health information is about a person against whom—

(i)that sexual offence is alleged to have been committed; or

(ii)any other sexual offence has been committed or is alleged to have been committed; and

(d)the person who recorded or collected the information (or, if the information is an opinion, formed that opinion) did so in a professional capacity.

(2)It does not matter whether the information was recorded or collected (or, if the information is an opinion, was formed) before or after the conduct constituting the sexual offence occurred or is alleged to have occurred.

(3)In this section—

health information has the same meaning as in the Health Records Act 2001.

32CExclusion of evidence of confidential communications and protected health information

(1AA)This section applies to the following information—

(a)in a civil proceeding, a confidential communication;

(b)in a criminal proceeding—

(i)a confidential communication; or

(ii)protected health information.

(1)In a legal proceeding—

(a)a party cannot seek to compel another party to produce a document containing information to which this section applies;

(b)a document is not to be produced if it would disclose information to which this section applies;

(c)evidence is not to be adduced if it would disclose—

(i)information to which this section applies; or

(ii)the contents of a document recording information to which this section applies—

unless the court grants leave to compel the production of the document or to produce it or to adduce the evidence, and the party seeking to have the document produced or to produce it or to adduce the evidence has complied with the requirements under section 32CA or 32CC (as the case requires) that are not waived.

*                *                *                *                *

*                *                *                *                *

(7)Evidence that, because of subsection (1), is not to be compelled to be produced, produced or adduced in a legal proceeding is not admissible in the proceeding.

32CA   Applicant for leave must give notice—civil proceedings

(1)In a civil proceeding, an applicant for leave must give written notice of their intention to apply for leave under section 32C(1) to—

(a)each other party; and

(b)the medical practitioner or counsellor to whom the confidential communication was made.

(2)The applicant for leave must give notice under subsection (1) no less than 14 days before the evidence is proposed to be compelled to be produced, produced or adduced.

(3)The court may—

(a)fix a period of notice shorter than that referred to in subsection (2); or

(b)waive a requirement to give notice to a person referred to in subsection (1)(a) or (b).

32CBPersons other than parties appearing and making submissions as to leave—civil proceedings

In an application for leave under section 32C(1) in a civil proceeding, the following persons may, with the leave of the court, appear and make submissions—

(a)the protected person;

(b)the medical practitioner or counsellor to whom the confidential communication was made.

32CC Applicant for leave must give notice—criminal proceedings

(1)In a criminal proceeding, an applicant for leave must give written notice of their intention to apply for leave under section 32C(1) to—

(a)each other party; and

(b)the informant; and

(c)if the notice relates to a confidential communication—the medical practitioner or counsellor to whom that communication was made; and

(d)if the notice relates to protected health information—whichever of the following entities the applicant for leave considers appropriate—

(i)the person who recorded or collected the information (or, if the information is an opinion, formed that opinion);

(ii)if the information is held by an organisation—that organisation.

(2)The applicant for leave must give notice under subsection (1) no less than 14 days before the evidence is proposed to be compelled to be produced, produced or adduced.

(3)If the court is satisfied that it is in the interests of justice to do so, the court may—

(a)fix a period of notice shorter than that referred to in subsection (2); or

(b)waive a requirement to give notice to a person or organisation referred to in subsection (1)(c) or (d).

32CD Prosecuting party to ensure notice is given to protected person—criminal proceedings

(1)If an application for leave under section 32C(1) is made in a criminal proceeding, the prosecuting party must, subject to this section, ensure that written notice of the application is given to the protected person.

(2)The prosecuting party must ensure that notice is given under subsection (1) within a reasonable time of the prosecuting party either giving or receiving, under section 32CC(1), notice of the application for leave.

(3)Notice under subsection (1) must—

(a)contain the matters specified in subsection (4); and

(b)be in the form prescribed by the rules of court.

(4)The matters are—

(a)a statement that the protected person may appear in the proceeding, make submissions on the application and give a confidential statement; and

(b)an explanation of how section 32CE(3) and (4) apply to a confidential statement; and

(c)a statement that the protected person may wish to consider whether to obtain legal advice in relation to the application; and

(d)information about the availability of legal advice in relation to the application.

(5)The court may waive the requirement under subsection (1) if the court is satisfied that—

(a)the prosecuting party has ensured that all reasonable steps to locate the protected person were taken, but the protected person has not been located; or

(b)the protected person has consented in writing to not being notified about an application for leave under section 32C(1); or

(c)the protected person has already been given notice under subsection (1)—

(i)in respect of the same confidential communication or protected health information as that to which the application relates; and

(ii)in the same proceeding as that in which the application is made.

32CEPersons other than parties appearing and making submissions as to leave—criminal proceedings

(1)In an application for leave under section 32C(1) in a criminal proceeding, the protected person may appear, make submissions and give a statement in accordance with subsection (2).

(2)The protected person may give the court, by affidavit, a statement (a confidential statement) describing the harm that is likely to be caused to the protected person if the application is granted.

(3)A court that receives a confidential statement must not make the statement available, or disclose its contents, to anyone other than the protected person or their legal representative, except in accordance with subsection (4).

(4)The court may make the whole or any part of the confidential statement available, or disclose its contents, to a person other than the protected person or their legal representative if the court considers that it is in the interests of justice to do so.

(5)If the application relates to a confidential communication, the medical practitioner or counsellor (as the case requires) may, with the leave of the court, appear and make submissions.

(6)If the application relates to protected health information, the recipient of any notice given in accordance with section 32CC(1)(d) may, with the leave of the court, appear and make submissions.

32CFProduction of document for purposes of determining application for leave

(1)For the purposes of determining—

(a)the application for leave under section 32C(1); or

(b)an application for leave under section 32CB or 32CE(5) or (6) that is made in the course of the application referred to in paragraph (a)—

the court may order that the document to which the application under section 32C(1) relates be produced to it and may inspect it.

(2)If a document is produced in accordance with an order under subsection (1), the court must not make the document available, or disclose its contents, to the party that applied for leave under section 32C(1).

32DRestriction on granting leave

(1)A court must not grant leave to compel the production of, to produce or to adduce protected evidence unless it is satisfied, on the balance of probabilities, that—

(a)the evidence will, either by itself or having regard to other evidence produced or adduced or to be produced or adduced by the party seeking leave, have substantial probative value to a fact in issue; and

(b)other evidence of similar or greater probative value concerning the matters to which the protected evidence relates is not available; and

(c)the public interest in preserving the confidentiality of confidential communications and protected health information and protecting a protected person from harm is substantially outweighed by the public interest in admitting, into evidence, evidence of substantial probative value.

(1A)Additionally, in a criminal proceeding, a court must not grant leave described in subsection (1) unless it is satisfied that—

(a)the protected person—

(i)is aware of the application for leave; and

(ii)has had a reasonable opportunity to consider obtaining legal advice about the application; or

(b)the prosecuting party has ensured that all reasonable steps to locate the protected person were taken, but the protected person has not been located; or

(c)the protected person has consented in writing to not being notified about an application for leave under section 32C(1); or

(d)the protected person has already been given notice under section 32CD—

(i)in respect of the same confidential communication or protected health information as that to which the application relates; and

(ii)in the same proceeding as that in which the application is made.

(2)Without limiting the matters that the court may take into account for the purposes of subsection (1)(c), the court must take into account—

(a)the likelihood, and the nature or extent, of harm that would be caused to the protected person if the protected evidence is produced or adduced;

(b)the extent to which the protected evidence is necessary to allow the accused to make a full defence;

(c)the need to encourage victims of sexual offences to seek counselling and the extent to which victims may be discouraged to do so, or the extent to which the effectiveness of counselling may be diminished, if the protected evidence were produced or adduced;

(d)whether the party seeking to compel the production of or to produce or adduce the protected evidence is doing so on the basis of a discriminatory belief or bias;

(e)whether the protected person objects to the disclosure of the protected evidence;

(f)the nature and extent of the reasonable expectation of confidentiality and the potential prejudice to the privacy of any person.

(3)A court may grant leave to compel the production of, or to produce or adduce, part of—

(a)a confidential communication or protected health information; or

(b)the contents of a document recording a confidential communication or protected health information—

and, if so, that part of the document may be made available, or that part of its contents disclosed, in any manner that the court thinks fit to the party seeking to compel its production or to produce or adduce it in evidence.

(4)The court must state its reasons for giving or refusing to give leave under this section.

(5)If leave is refused under this section, that fact must not be referred to in the presence of the jury, if any.

32ELimitations on privilege

(1)This Division does not prevent the production or adducing of evidence—

(a)with the consent of the protected person or, if he or she is under 14 years of age, with the consent of any person whom the court regards as being an appropriate person to give that consent; or

(b)of information acquired by a registered medical practitioner by physical examination (including communications made during the examination) of the protected person in relation to the commission or alleged commission of an offence against the protected person; or

(c)of a communication made, or the contents of a document prepared, for the purpose of a legal proceeding arising from the commission or alleged commission of the sexual offence; or

(d)of a communication made, or the contents of a document prepared, in the furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty; or

(e)of a communication made if it is evidence of the commission of an offence of wilful and corrupt perjury.

(2)For the purposes of subsection (1)(d), if the commission of the fraud, offence or act is a fact in issue and there are reasonable grounds for finding that—

(a)the fraud, offence or act was committed; and

(b)a communication was made or document prepared in furtherance of the commission of the fraud, offence or act—

the court may find that the communication was so made or document so prepared.

(3)If consent to the production or adducing of evidence is not given under subsection (1)(a), that fact must not be referred to in the presence of the jury, if any.

32FAncillary orders available on a granting of leave

Without limiting any action that the court may take to limit the possible harm, or extent of the harm, likely to be caused by the disclosure of protected evidence, the court may—

(a)order that all or part of the evidence be heard in camera; or

(b)make such orders relating to the suppression of publication of all or part of the evidence given before the court as, in its opinion, are necessary to protect the safety or welfare of—

(i)the protected person; or

(ii)a person to whom notice was required to be given under section 32CA(1)(b) or section 32CC(1)(c) or (d) (whether or not that requirement was waived); or

(c)make such orders relating to disclosure of protected identity information as, in the opinion of the court, are necessary to protect the safety or welfare of the protected person or the safety of a person referred to in paragraph (b)(ii).

32GOperation of Division

(1)Nothing in this Division affects the operation of—

(a)section 28; or

(ba)section 41, 103 or 127 of the Evidence Act 2008; or

(b)Division 1C of Part 3 of the Sentencing Act 1991; or

(c)Part 8.2 of the Criminal Procedure Act 2009.

(2)Subsection (1) applies whether a communication was made before or after the date on which the sexual offence was committed or alleged to have been committed and whether made before or after the date on which section 4 of the Evidence (Confidential Communications) Act 1998 came into operation.

*                *                *                *                *

*                *                *                *                *

*                *                *                *                *

*                *                *                *                *

*                *                *                *                *

*                *                *                *                *

*                *                *                *                *

*                *                *                *                *

*                *                *                *                *

*                *                *                *                *

*                *                *                *                *

*                *                *                *                *

*                *                *                *                *

*                *                *                *                *

*                *                *                *                *

PART IIAA—WITNESS IDENTITY PROTECTION

Division 1—Introductory

42BADefinitions

(1)In this Part—

assumed name—

(a)of a local operative, has the meaning given in section 42BD(1)(a)(i);

(b)of an interstate operative, means the name (if any) stated in the operative's interstate witness identity protection certificate as his or her assumed name;

Australian Crime Commission means Australian Crime Commission established by the Australian Crime Commission Act 2002 of the Commonwealth;

chief officer means—

(a)in relation to Victoria Police—the Chief Commissioner of Police;

(b)in relation to the Australian Crime Commission—the Chief Executive Officer of the Australian Crime Commission;

conduct includes any act or omission;

corresponding law means a law of another jurisdiction that is declared by the regulations to correspond to this Part;

court includes any tribunal or person authorised by law or consent of parties to receive evidence;

court name for a local operative in relation to an interstate proceeding or for an interstate operative in relation to a proceeding in this jurisdiction, means a name (other than the operative's real name) or code used to identify the operative in the proceeding;

criminal activity means conduct that involves the commission of an offence by one or more persons;

false representation does not include a representation made under an authority under—

(a)the Crimes (Assumed Identities) Act 2004; or

(b)the Crimes (Controlled Operations) Act 2004;

interstate court means a court of another jurisdiction;

interstate operative means a person in respect of whom an interstate witness identity protection certificate is in force;

interstate proceeding means a proceeding in another jurisdiction;

interstate witness identity protection certificate means a certificate given under a provision of a corresponding law that corresponds to section 42BB;

investigation means an investigation in relation to criminal activity, including an investigation extending beyond this jurisdiction;

jurisdiction means the Commonwealth or a State or Territory of the Commonwealth;

law enforcement agency means the following agencies—

(a)Victoria Police;

(b)the Australian Crime Commission;

law enforcement officer means—

(a)in relation to Victoria Police—a police officer;

(b)in relation to the Australian Crime Commission—a member of staff of the Australian Crime Commission—

and includes a person who is seconded to a law enforcement agency, including (but not limited to) a member of the police force or police service or a police officer (however described) of another jurisdiction;

local operative means a person who is or was—

(a)authorised to acquire and use an assumed identity under the Crimes (Assumed Identities) Act 2004; or

(b)a participant in an authorised operation under the Crimes (Controlled Operations) Act 2004;

*                *                *                *                *

party to a proceeding, means—

(a)for a criminal proceeding—the prosecutor and each accused person; or

(b)for a civil proceeding—each person who is a party to the proceeding; or

(c)for any other proceeding—each person who may appear or give evidence in the proceeding;

presiding officer in relation to a proceeding, means the person constituting the court, or presiding over the court, in the proceeding;

proceedingmeans any criminal, civil or other proceeding or inquiry, reference or examination in which by law or consent of parties evidence is or may be given, and includes an arbitration;

professional misconduct means misconduct or a breach of discipline under—

(a)the Victoria Police Act 2013; or

(b)a law of another jurisdiction that corresponds to the Victoria Police Act 2013; or

(c)a law of the Commonwealth that governs the conduct of members of staff of the Australian Crime Commission; or

(d)a law of a foreign country that corresponds to the Victoria Police Act 2013;

this jurisdiction means Victoria;

Victoria Police has the same meaning as in the Victoria Police Act 2013;

witness identity protection certificate means a certificate given under section 42BB.

(2)For the purposes of this Part—

(a)a charge against a person for an offence is outstanding until the charge is finally dealt with in any of the following ways—

(i)the charge is withdrawn;

(ii)the charge is dismissed by a court;

(iii)the person is discharged by a court following a committal hearing;

(iv)the person is acquitted or found guilty of the offence by a court;

(v)the prosecution of the offence is discontinued;

(b)a charge against a person for an offence is pending if the person has not yet been charged with the offence, but—

(i)the person has been arrested for the offence, unless the person has been later released without being charged with an offence; or

(ii)a summons to appear before a court to answer a charge for the offence has been served on the person;

(c)an allegation of professional misconduct against a person is outstanding if the allegation has not been finally dealt with in accordance with the law of the jurisdiction or foreign country that governs the procedure for dealing with the allegation.

(3)For the purposes of this Part—

(a)anything permitted to be done by a party to a proceeding may be done by the party's legal practitioner;

(b)any requirement to give something to a party to a proceeding is satisfied by giving the thing to the party's legal practitioner.

Division 2—Witness identity protection certificates for local operatives

42BBGiving witness identity protection certificate

(1)The chief officer of a law enforcement agency may give a certificate for a local operative of the agency in relation to an interstate proceeding if—

(a)the local operative is, or may be required, to give evidence in the interstate proceeding; and

(b)the chief officer is satisfied on reasonable grounds that the disclosure in the interstate proceeding of the local operative's identity or where the local operative lives is likely to—

(i)endanger the safety of the local operative or someone else; or

(ii)prejudice any investigation.

(2)The chief officer must make all reasonable enquiries to enable him or her to ascertain the information required to be included in the certificate by section 42BD.

(3)The chief officer cannot give a certificate for a local operative until the chief officer has obtained a statutory declaration from the local operative under section 42BC.

Note

The chief officer may delegate functions under this section—see section 42BJ.

42BCStatutory declaration by local operative

(1)Before a witness identity protection certificate is given for a local operative, the local operative must make a statutory declaration of the following matters—

(a)whether the local operative has been convicted or found guilty of an offence (in Victoria or elsewhere) and, if so, particulars of each offence; and

(b)whether any charges against the local operative for an offence are pending or outstanding (in Victoria or elsewhere) and, if so, particulars of each charge; and

(c)if the local operative is or was a law enforcement officer—

(i)whether the local operative has been found guilty of professional misconduct and, if so, particulars of each finding; and

(ii)whether, to the local operative's knowledge, any allegations of professional misconduct against him or her are outstanding and, if so, particulars of each allegation; and

(d)whether, to the local operative's knowledge, a court (in Victoria or elsewhere) has made any adverse comment about his or her credibility and, if so, particulars of the comment; and

(e)whether the local operative has made a false representation when the truth was required and, if so, particulars of the representation; and

(f)particulars of anything else known to the local operative that may be relevant to his or her credibility.

(2)Subject to subsection (3), a person cannot be compelled to disclose or produce a statutory declaration made under this section in any proceeding.

(3)Subsection (2) does not apply to—

(a)proceedings for perjury or otherwise in respect of the falsity of the statutory declaration; or

(b)proceedings of a disciplinary nature against a law enforcement officer; or

(c)investigations or inquiries by a person or body in any jurisdiction having jurisdiction to investigate or inquire into the conduct of a law enforcement officer.

42BDForm of witness identity protection certificate

(1)A witness identity protection certificate for a local operative of a law enforcement agency in relation to an interstate proceeding must state the following—

(a)if the local operative—

(i)is known to a party to the interstate proceeding or a party's lawyer by a name other than the operative's real name—that name (the assumed name); or

(ii)is not known to any party to the interstate proceeding or any party's legal practitioner by a name—the operative's court name for the interstate proceeding; and

(b)the period the local operative was involved in the investigation to which the interstate proceeding relates; and

(c)the name of the agency; and

(d)the date of the certificate; and

(e)the grounds for giving the certificate; and

(f)whether the local operative has been convicted or found guilty of an offence (in Victoria or elsewhere) and, if so, particulars of each offence; and

(g)whether any charges against the local operative for an offence are pending or outstanding (in Victoria or elsewhere) and, if so, particulars of each charge; and

(h)if the local operative is or was a law enforcement officer—

(i)whether the local operative has been found guilty of professional misconduct and, if so, particulars of each finding; and

(ii)whether any allegations of professional misconduct against the local operative are outstanding and, if so, particulars of each allegation; and

(i)whether, to the knowledge of the person giving the certificate, a court (in Victoria or elsewhere) has made any adverse comment about the local operative's credibility and, if so, particulars of the comment; and

(j)whether, to the knowledge of the person giving the certificate, the local operative has made a false representation when the truth was required and, if so, particulars of the representation; and

(k)if there is anything else known to the person giving the certificate that may be relevant to the local operative's credibility—particulars of the thing.

(2)A witness identity protection certificate for a local operative must not contain information that may allow the operative's identity, or where the operative lives, to be revealed.

42BEProtection of decision to give certificate

(1)A decision to give a witness identity protection certificate—

(a)is final; and

(b)cannot be appealed against, reviewed, called into question, quashed or invalidated in any court.

(2)Subsection (1) does not prevent a decision to give a witness identity protection certificate being called into question in the course of any proceedings of a disciplinary nature against the person who made the decision.

42BFCancellation of witness identity protection certificate

(1)This section applies if the chief officer of a law enforcement agency gives a witness identity protection certificate for a local operative of the agency in relation to an interstate proceeding.

(2)The chief officer must cancel the witness identity protection certificate if the chief officer considers that it is no longer necessary or appropriate to prevent the disclosure of the local operative's identity or where the local operative lives.

Evidence (Amendment) Act 1985, No. 10231/1985

Assent Date:	10.12.85
Commencement Date:	1.2.86: Government Gazette 22.1.86 p. 144
CurrentState:	All of Act in operation

Coroners Act 1985, No. 10257/1985

Assent Date:	10.12.85
Commencement Date:	Ss 1–3, Pt 9 on 12.2.86: Government Gazette 12.2.86 p. 382; rest of Act on 1.6.86: Government Gazette 30.4.86 p. 1115
CurrentState:	All of Act in operation

Courts Amendment Act 1986, No. 16/1986

Assent Date:	22.4.86
Commencement Date:	S. 30(Sch.) on 1.7.86: Government Gazette 25.6.86 p. 2180
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Crimes (Amendment) Act 1986, No. 37/1986

Assent Date:	20.5.86
Commencement Date:	1.7.86: Government Gazette 25.6.86 p. 2239
CurrentState:	All of Act in operation

Crimes (Confiscation of Profits) Act 1986, No. 101/1986

Assent Date:	16.12.86
Commencement Date:	1.8.87: Government Gazette 22.7.87 p. 1924
CurrentState:	All of Act in operation

Supreme Court Act 1986, No. 110/1986

Assent Date:	16.12.86
Commencement Date:	1.1.87: s. 2
CurrentState:	All of Act in operation

Corrections Act 1986, No. 117/1986

Assent Date:	23.12.86
Commencement Date:	S. 6(Sch. 1 item 1(11)) on 1.3.88: Government Gazette 24.2.88 p. 363
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Road Safety Act 1986, No. 127/1986

Assent Date:	23.12.86
Commencement Date:	Sch. 4 item 9 on 1.3.87: Government Gazette 25.2.87 p. 445
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Evidence (Neighbourhood Mediation Centres) Act 1987, No. 42/1987

Assent Date:	19.5.87
Commencement Date:	2.9.87: Government Gazette 2.9.87 p. 2328
CurrentState:	All of Act in operation

Accident Compensation (Amendment) Act 1987, No. 83/1987

Assent Date:	1.12.87
Commencement Date:	S. 6(2) on 30.7.85: s. 2(2); s. 45(1) on 1.1.88: s. 2(3); rest of Act on 1.12.87: s. 2(1)
CurrentState:	All of Act in operation

Courts (Amendment) Act 1987, No. 85/1987

Assent Date:	1.12.87
Commencement Date:	S. 6 on 1.12.87: s. 2(2); rest of Act on 13.1.88: Government Gazette 13.1.88 p. 35
CurrentState:	All of Act in operation

State Bank Act 1988, No. 29/1988

Assent Date:	17.5.88
Commencement Date:	9.6.88: Government Gazette 8.6.88 p. 1582
CurrentState:	All of Act in operation

Local Government (Consequential Provisions) Act 1989, No. 12/1989

Assent Date:	9.5.89
Commencement Date:	Sch. 2 items 41.1–41.5 on 1.11.89: Government Gazette 1.11.89 p. 2798
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

County Court (Amendment) Act 1989, No. 19/1989

Assent Date:	16.5.89
Commencement Date:	1.8.89: Government Gazette 26.7.89 p. 1858
CurrentState:	All of Act in operation

Magistrates' Court Act 1989, No. 51/1989 (as amended by No. 34/1990)

Assent Date:	14.6.89
Commencement Date:	S. 144(2) on 1.9.90: Government Gazette 25.7.90 p. 2216
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Magistrates' Court (Consequential Amendments) Act 1989, No. 57/1989

Assent Date:	14.6.89
Commencement Date:	S. 4(1)(a)–(e)(2) on 1.9.89: Government Gazette 30.8.89 p. 2210; rest of Act on 1.9.90: Government Gazette 25.7.90 p. 2217
CurrentState:	All of Act in operation

Courts (Children's and Magistrates') Act 1990, No. 34/1990

Assent Date:	13.6.90
Commencement Date:	S. 6 on 1.9.90: Government Gazette 25.7.90 p. 2216
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Evidence (Amendment) Act 1990, No. 57/1990

Assent Date:	13.11.90
Commencement Date:	Ss 8–10 on 12.12.90: Special Gazette (No. 63) 11.12.90 p. 1; rest of Act on 1.6.91: Government Gazette 29.5.91 p. 1386
CurrentState:	All of Act in operation

Courts (Amendment) Act 1990, No. 64/1990

Assent Date:	20.11.90
Commencement Date:	S. 17 on 1.1.91: Government Gazette 19.12.90 p. 3750
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

State Bank (Succession of Commonwealth Bank) Act 1990, No. 94/1990

Assent Date:	18.12.90
Commencement Date:	S. 40(5) on 1.1.91: Special Gazette (No. 73) 31.12.90 p. 1
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Crimes (Sexual Offences) Act 1991, No. 8/1991 (as amended by No. 81/1991)

Assent Date:	16.4.91
Commencement Date:	Ss 7, 8, 10 on 5.8.91: Government Gazette 5.8.91 p. 2026; s. 11(1A) on 1.2.92: Government Gazette 22.1.92 p. 114; ss 11(1)(2) on 20.12.94: Government Gazette 15.12.94 p. 3308; s. 9 on 1.7.98
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Local Government (Rating) Act 1991, No. 78/1991 (as amended by No. 22/1992)

Assent Date:	3.12.91
Commencement Date:	S. 26 on 1.11.89: s. 2(1)
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Crimes (Rape) Act 1991, No. 81/1991

Assent Date:	3.12.91
Commencement Date:	S. 4 on 1.1.92: Government Gazette 18.12.91 p. 3486; s. 5 on 1.2.92: Government Gazette 22.1.92 p. 114
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Evidence (Unsworn Evidence) Act 1993, No. 12/1993

Assent Date:	11.5.93
Commencement Date:	11.5.93
CurrentState:	All of Act in operation

Crimes (Criminal Trials) Act 1993, No. 60/1993

Assent Date:	8.6.93
Commencement Date:	Ss 24, 25 on 1.7.93: Government Gazette 1.7.93 p. 1735
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Evidence (Proof of Offences) Act 1993, No. 74/1993

Assent Date:	26.10.93
Commencement Date:	Ss 1, 2 on 26.10.93: s. 2(1); rest of Act on 1.1.94: s. 2(2)
CurrentState:	All of Act in operation

Local Government (Miscellaneous Amendments) Act 1993, No. 125/1993

Assent Date:	7.12.93
Commencement Date:	S. 20(4) on 7.12.93: s. 2(4)
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Medical Practice Act 1994, No. 23/1994

Assent Date:	17.5.94
Commencement Date:	Ss 1, 2 on 17.5.94: s. 2(1); rest of Act on 1.7.94: Government Gazette 23.6.94 p. 1672
CurrentState:	All of Act in operation

Financial Management (Consequential Amendments) Act 1994, No. 31/1994

Assent Date:	31.5.94
Commencement Date:	S. 3(Sch. 1 item 25) on 7.7.94: Government Gazette 7.7.94 p. 1878—see Interpretation of Legislation Act 1984
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Magistrates' Court (Amendment) Act 1994, No. 33/1994

Assent Date:	31.5.94
Commencement Date:	S. 17(2) on 24.10.94: Government Gazette 20.10.94 p. 2789
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Public Prosecutions Act 1994, No. 43/1994

Assent Date:	7.6.94
Commencement Date:	Pt 1 (ss 1–3) on 7.6.94: s. 2(1); rest of Act on 1.7.94: s. 2(3)
CurrentState:	All of Act in operation

Transport Accident (General Amendment) Act 1994, No. 84/1994

Assent Date:	29.11.94
Commencement Date:	S. 62 on 18.12.94: Special Gazette (No. 96) 13.12.94 pp 1, 2
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Prostitution Control Act 1994, No. 102/1994

Assent Date:	13.12.94
Commencement Date:	Ss 1, 2 on 13.12.94: s. 2(1); rest of Act on 13.6.95: s. 2(3)
CurrentState:	All of Act in operation

Legal Aid Commission (Amendment) Act 1995, No. 48/1995

Assent Date:	14.6.95
Commencement Date:	S. 11(4) on 14.12.95: s. 2(3)
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Miscellaneous Acts (Omnibus Amendments) Act 1995, No. 100/1995

Assent Date:	5.12.95
Commencement Date:	Ss 22, 23 on 5.12.95: s. 2(1)
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Legal Practice Act 1996, No. 35/1996

Assent Date:	6.11.96
Commencement Date:	S. 453(Sch. 1 item 29) on 1.1.97: s. 2(3)
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Evidence (Audio Visual and Audio Linking) Act 1997, No. 4/1997

Assent Date:	22.4.97
Commencement Date:	Ss 3, 4 on 22.12.97: Government Gazette 18.12.97 p. 3612
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Veterinary Practice Act 1997, No. 58/1997

Assent Date:	28.10.97
Commencement Date:	S. 96(Sch. item 4) on 17.3.98: Government Gazette 12.3.98 p. 520
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Crimes (Amendment) Act 1997, No. 81/1997

Assent Date:	2.12.97
Commencement Date:	Ss 9–11 on 1.1.98: s. 2(2)
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Legal Practice (Amendment) Act 1997, No. 102/1997

Assent Date:	16.12.97
Commencement Date:	S. 49(Sch. item 2) on 16.12.97: s. 2(1)
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Confiscation Act 1997, No. 108/1997

Assent Date:	23.12.97
Commencement Date:	S. 153 on 1.7.98: Government Gazette 18.6.98 p. 1512
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Evidence (Confidential Communications) Act 1998, No. 21/1998

Assent Date:	5.5.98
Commencement Date:	Ss 1–3 on 5.5.98: s. 2(1); ss 4, 5 on 1.9.98: s. 2(3)
CurrentState:	All of Act in operation

Public Sector Reform (Miscellaneous Amendments) Act 1998, No. 46/1998

Assent Date:	26.5.98
Commencement Date:	S. 7(Sch. 1) on 1.7.98: s. 2(2)
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Crimes, Confiscation and Evidence Acts (Amendment) Act 1998, No. 80/1998

Assent Date:	13.11.98
Commencement Date:	Pt 4 (s. 6) on 20.10.98: s. 2(3)
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Magistrates' Court (Amendment) Act 1999, No. 10/1999

Assent Date:	11.5.99
Commencement Date:	S. 8(6) on 1.7.99: s. 2(2)
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Surveillance Devices Act 1999, No. 21/1999

Assent Date:	18.5.99
Commencement Date:	S. 40 on 1.1.00: s. 2(3)
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Dental Practice Act 1999, No. 26/1999

Assent Date:	1.6.99
Commencement Date:	S. 107(Sch. item 3) on 1.7.00: s. 2(3)
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Crimes (Criminal Trials) Act 1999, No. 35/1999

Assent Date:	8.6.99
Commencement Date:	S. 35 on 1.9.99: s. 2(3)
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000, No. 78/2000

Assent Date:	28.11.00
Commencement Date:	S. 5 on 28.11.00: s. 2(1)
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Magistrates' Court (Committal Proceedings) Act 2000, No. 92/2000

Assent Date:	5.12.00
Commencement Date:	Ss 13, 14 on 1.7.01: s. 2(2)
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Statute Law Amendment (Authorised Deposit-taking Institutions) Act 2001, No. 11/2001

Assent Date:	8.5.01
Commencement Date:	S. 3(Sch. item 25) on 1.6.01: s. 2(2)
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Corporations (Consequential Amendments) Act 2001, No. 44/2001

Assent Date:	27.6.01
Commencement Date:	S. 3(Sch. item 40) on 15.7.01: s. 2
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Corrections (Custody) Act 2001, No. 45/2001

Assent Date:	27.6.01
Commencement Date:	S. 41 on 1.3.02: s. 2(2)
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Public Notaries Act 2001, No. 52/2001

Assent Date:	25.9.01
Commencement Date:	S. 13(2) on 6.6.02: Government Gazette 30.5.02 p. 1118
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Justice Legislation (Sexual Offences and Bail) Act 2004, No. 20/2004

Assent Date:	18.5.04
Commencement Date:	S. 8 on 19.5.04: s. 2
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Evidence (Witness Identity Protection) Act 2004, No. 60/2004 (as amended by No. 18/2005)

Assent Date:	12.10.04
Commencement Date:	Ss 3–5 on 1.7.06: Government Gazette 29.6.06 p. 1314
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Children and Young Persons (Age Jurisdiction) Act 2004, No. 72/2004

Assent Date:	9.11.04
Commencement Date:	Ss 41, 42 on 1.7.05: s. 2(2)
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Public Administration Act 2004, No. 108/2004

Assent Date:	21.12.04
Commencement Date:	S. 117(1)(Sch. 3 item 72) on 5.4.05: Government Gazette 31.3.05 p. 602
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Sentencing (Further Amendment) Act 2005, No. 15/2005

Assent Date:	10.5.05
Commencement Date:	Ss 9, 10 on 11.5.05: s. 2
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Legal Profession (Consequential Amendments) Act 2005, No. 18/2005

Assent Date:	24.5.05
Commencement Date:	S. 18(Sch. 1 item 40) on 12.12.05: Government Gazette 1.12.05 p. 2781
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Defamation Act 2005, No. 75/2005

Assent Date:	2.11.05
Commencement Date:	S. 49(Sch. 4 item 1) on 1.1.06: s. 2
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Health Professions Registration Act 2005, No. 97/2005

Assent Date:	7.12.05
Commencement Date:	S. 182(Sch. 4 item 19) on 1.7.07: s. 2(3)
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Crimes (Sexual Offences) Act 2006, No. 2/2006 (as amended by No. 76/2006)

Assent Date:	7.3.06
Commencement Date:	S. 35 on 22.8.06: Special Gazette (No. 214) 22.8.06 p. 1; ss 24–34, 36–38A on 1.12.06: s. 2(2)
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Justice Legislation (Miscellaneous Amendments) Act 2006, No. 14/2006

Assent Date:	11.4.06
Commencement Date:	Ss 16, 17 on 12.4.06: s. 2(1)
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Children, Youth and Families (Consequential and Other Amendments) Act 2006, No. 48/2006

Assent Date:	15.8.06
Commencement Date:	S. 42(Sch. item 13) on 23.4.07: s. 2(3)
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Evidence (Document Unavailability) Act 2006, No. 53/2006

Assent Date:	15.8.06
Commencement Date:	Ss 3–5 on 1.9.06: s. 2(2)
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Crimes (Sexual Offences) (Further Amendment) Act 2006, No. 76/2006

Assent Date:	10.10.06
Commencement Date:	Ss 5–8 immediately after s. 38 of the Crimes (Sexual Offences) Act 2006 i.e. 1.12.06: s. 2(2)
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Justice Legislation Amendment (Sex Offences Procedure) Act 2008, No. 18/2008

Assent Date:	13.5.08
Commencement Date:	Ss 9–13 on 1.7.08: s. 2(2)
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Courts Legislation Amendment (Associate Judges) Act 2008, No. 24/2008

Assent Date:	3.6.08
Commencement Date:	S. 78 on 17.12.08: Special Gazette (No. 377) 16.12.08 p. 1
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Family Violence Protection Act 2008, No. 52/2008

Assent Date:	23.9.08
Commencement Date:	Ss 243, 244 on 8.12.08: Special Gazette (No. 339) 4.12.08 p. 1
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Coroners Act 2008, No. 77/2008

Assent Date:	11.12.08
Commencement Date:	S. 129(Sch. 2 item 9) on 1.11.09: s. 2
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Criminal Procedure Act 2009, No. 7/2009 (as amended by No. 68/2009)

Assent Date:	10.3.09
Commencement Date:	S. 435(7) on 1.1.10: Government Gazette 10.12.09 p. 3215
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009, No. 68/2009

Assent Date:	24.11.09
Commencement Date:	S. 97(Sch. item 54) on 1.1.10: Government Gazette 10.12.09 p. 3215
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Statute Law Amendment (Evidence Consequential Provisions) Act 2009, No. 69/2009

Assent Date:	24.11.09
Commencement Date:	Ss 3–36 on 1.1.10: s. 2(2)
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Crimes Legislation Amendment Act 2010, No. 7/2010

Assent Date:	16.3.10
Commencement Date:	Ss 7–9 on 17.3.10: s. 2
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Statute Law Amendment (National Health Practitioner Regulation) Act 2010, No. 13/2010

Assent Date:	30.3.10
Commencement Date:	S. 51(Sch. item 22) on 1.7.10: s. 2(2)
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Personal Safety Intervention Orders Act 2010, No. 53/2010

Assent Date:	7.9.10
Commencement Date:	S. 223 on 1.12.10: Government Gazette 14.10.10 p. 2405
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Consumer Acts Amendment Act 2011, No. 36/2011

Assent Date:	23.8.11
Commencement Date:	S. 36 on 24.8.11: s. 2(1)
Current State:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Sentencing Amendment (Community Correction Reform) Act 2011, No. 65/2011

Assent Date:	22.11.11
Commencement Date:	S. 107(Sch. item 5) on 16.1.12: Special Gazette (No. 423) 21.12.11 p. 3
Current State:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Evidence (Miscellaneous Provisions) Amendment (Affidavits) Act 2012, No. 4/2012

Assent Date:	1.3.12
Commencement Date:	S. 5 on 12.11.11: s. 2(2); s. 4 on 2.3.12: s. 2(3)
Current State:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Victorian Inspectorate Amendment Act 2012, No. 19/2012

Assent Date:	24.4.12
Commencement Date:	S. 22 on 10.2.13: Special Gazette (No. 32) 6.2.13 p. 1
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Independent Broad-based Anti-corruption Commission Amendment (Examinations) Act 2012, No. 28/2012

Assent Date:	29.5.12
Commencement Date:	S. 35 on 10.2.13: Special Gazette (No. 32) 6.2.13 p. 1
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Statute Law Revision Act 2012, No. 43/2012

Assent Date:	27.6.12
Commencement Date:	S. 3(Sch. item 17.1) on 17.3.10: s. 2(2)(d); s. 3(Sch. items 17.2, 17.3) on 28.6.12: s. 2(1)
Current State:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Evidence Amendment (Journalist Privilege) Act 2012, No. 52/2012

Assent Date:	18.9.12
Commencement Date:	Ss 14–16 on 1.1.13: s. 2(2)
CurrentState:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Workplace Injury Rehabilitation and Compensation Act 2013, No. 67/2013

Assent Date:	12.11.13
Commencement Date:	S. 649(Sch. 9 item 18) on 1.7.14: s. 2(1)
Current State:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Legal Profession Uniform Law Application Act 2014, No. 17/2014

Assent Date:	25.3.14
Commencement Date:	S. 160(Sch. 2 item 40) on 1.7.15: Special Gazette (No. 151) 16.6.15 p. 1
Current State:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Victoria Police Amendment (Consequential and Other Matters) Act 2014, No. 37/2014

Assent Date:	3.6.14
Commencement Date:	S. 10(Sch. item 59) on 1.7.14: Special Gazette (No. 200) 24.6.14 p. 2
Current State:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Criminal Organisations Control and Other Acts Amendment Act 2014, No. 55/2014

Assent Date:	26.8.14
Commencement Date:	Ss 172, 173 on 27.8.14: s. 2(1)
Current State:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Inquiries Act 2014, No. 67/2014

Assent Date:	23.9.14
Commencement Date:	S. 147(Sch. 2 item 16) on 15.10.14: Special Gazette (No. 364) 14.10.14 p. 2
Current State:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Justice Legislation (Evidence and Other Acts) Amendment Act 2016, No. 38/2016

Assent Date:	28.6.16
Commencement Date:	Ss 3–8 on 12.9.16: Special Gazette (No. 278) 6.9.16 p. 1
Current State:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Crimes Amendment (Sexual Offences) Act 2016, No. 47/2016

Assent Date:	6.9.16
Commencement Date:	S. 39 on 1.7.17: s. 2(2)
Current State:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Jury Directions and Other Acts Amendment Act 2017, No. 37/2017

Assent Date:	29.8.17
Commencement Date:	Ss 19, 20 on 1.10.17: s. 2(3)
Current State:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Oaths and Affirmations Act 2018, No. 6/2018

Assent Date:	27.2.18
Commencement Date:	Ss 53–58, 60–62, 68(Sch. 2 item 51) on 1.3.19: s. 2(2)
Current State:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

COVID-19 Omnibus (Emergency Measures) Act 2020, No. 11/2020

Assent Date:	24.4.20
Commencement Date:	Ss 34, 35 on 25.4.20: s. 2
Current State:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Justice Legislation Miscellaneous Amendments Act 2020, No. 22/2020

Assent Date:	30.6.20
Commencement Date:	S. 20 on 1.7.20: s. 2
Current State:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

COVID-19 Omnibus (Emergency Measures) and Other Acts Amendment Act 2020, No. 27/2020

Assent Date:	20.10.20
Commencement Date:	S. 31 on 21.10.20: s. 2
Current State:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021, No. 11/2021

Assent Date:	23.3.21
Commencement Date:	Ss 3–23 on 26.4.21: s. 2(2)
Current State:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Firearms and Other Acts Amendment Act 2021, No. 44/2021

Assent Date:	26.10.21
Commencement Date:	Ss 5–7 on 27.10.21: s. 2(1)
Current State:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Public Health and Wellbeing Amendment (Pandemic Management) Act 2021, No. 53/2021

Assent Date:	7.12.21
Commencement Date:	S. 27 on 8.12.21: s. 2(1)
Current State:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Justice Legislation Amendment (Trial by Judge Alone and Other Matters) Act 2022, No. 11/2022

Assent Date:	29.3.22
Commencement Date:	S. 8 on 30.3.22: s. 2
Current State:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022, No. 38/2022

Assent Date:	6.9.22
Commencement Date:	Ss 82−88, 93 on 30.7.23: s. 2(5)
Current State:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

Statute Law Amendment (References to the Sovereign) Act 2023, No. 25/2023

Assent Date:	5.9.23
Commencement Date:	S. 7(Sch. 1 item 11) on 6.9.23: s. 2
Current State:	This information relates only to the provision/s amending the Evidence (Miscellaneous Provisions) Act 1958

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

3   Explanatory details

[1] Pt 1 Div. 1C: Section 7 of the Evidence (Amendment) Act 1990, No. 57/1990 reads as follows:

7Repeals

(1)The following Acts of the Parliament of the United Kingdom are repealed in so far as they are part of the law of Victoria:

The Foreign Tribunals Evidence Act 1856

The Evidence by Commission Act 1859

The Evidence by Commission Act 1885

(2)Nothing in this section affects—

(a)any application to any court or judge which is pending at the commencement of this Act;

(b)any certificate given for the purposes of such an application;

(c)any power to make an order on such an application; or

(d)the operation or enforcement of any order made on such an application.

[2] S. 12: Sections 11, 12 of the Evidence (Audio Visual and Audio Linking) Act 1997, No. 4/1997 read as follows:

11Construction of references to bringing person before court

A reference in any Act or in any subordinate instrument within the meaning of the Interpretation of Legislation Act 1984 to a person appearing before, or being brought before, a court includes a reference to a person appearing before, or being brought to a place where facilities exist to enable a person to appear before, the court by audio or audio visual link within the meaning of Part IIA of the Evidence Act 1958 in accordance with Division 2 or 3 of that Part.

12Transitional provisions

(1)An amendment made by a provision of this Act to the Evidence Act 1958, the Supreme Court Act 1986, the County Court Act 1958, the Magistrates' Court Act 1989 or the Children and Young Persons Act 1989 applies to a proceeding that is commenced to be heard on or after the twenty-first day after the commencement of that amendment, irrespective of when the proceeding was commenced or when any offence to which the proceeding relates is alleged to have been committed.

(2)For the purposes of subsection (1) in its application to criminal proceedings—

(a)a trial is commenced to be heard on arraignment of the accused person; and

(b)a hearing of a charge for an offence is commenced to be heard on the taking of a formal plea from the accused person.

[3] Pt 1 Div. 8: Section 9 of the Evidence (Amendment) Act 1990, No. 57/1990 reads as follows:

9Transitional

(1)An organisation that, immediately before the commencement of this section, was a neighbourhood mediation centre within the meaning of Division 8 of Part I of the Principal Act is deemed to be a dispute settlement centre and to be the same body after as before that commencement.

(2)A person who, immediately before the commencement of this section, was a neighbourhood mediator within the meaning of Division 8 of Part I of the Principal Act is deemed, on that commencement, to be a mediator within the meaning of that Division as amended by this Act.

(3)An Order or notice made or given under Division 8 of Part I of the Principal Act in force immediately before the commencement of this section may be amended or revoked by an Order or notice made or given under that Division after that commencement.

[4] Ss 41C and 41F: The amendment proposed by section 10 of the Statute Law Amendment (Evidence Consequential Provisions) Act 2009, No. 69/2009 is not included in this publication because sections 41C and 41F were repealed before this amendment came into operation.

[5] Pt 2A: See note 2.

[6] S. 42J: Examples of proceedings, apart from the trial or hearing of the charge, to which Division 3 applies are proceedings with respect to bail or the remand of the accused person in custody, committal proceedings, directions hearings under Part 5.5 of the Criminal Procedure Act 2009, proceedings under the Confiscation Act 1997 and proceedings under Division 1 or 2 of Part 4 of the Sentencing Act 1991.

[7] Pt 3 Div 9:

Pt 3 Div. 9 (Heading) repealed by No. 8228 s. 5(1).

S. 90 amended by Nos 7366 s. 3, 7881 s. 2(a)(i)(ii)(b), repealed by No. 8228 s. 5(1).

Ss 91–97 repealed by No. 8228 s. 5(1).

S. 97A inserted by No. 7881 s. 3, repealed by No. 8228 s. 5(1).

S. 98 repealed by No. 8228 s. 5(1).

[8] Pt 4 Div. 4: Pt 4 Div. 4 (Heading and ss 107–109) amended by Nos 51/1989 s. 144(2)(d)–(g) (as amended by No. 34/1990 s. 4(Sch. 3 item 16)), 125/1993 s. 20(4)(b), 23/1994 s. 118(Sch. 1 item 20.2), 84/1994 s. 62, 35/1996 s. 453(Sch. 1 item 29.4), 58/1997 s. 96(Sch. item 4), 46/1998 s. 7(Sch. 1), 26/1999 s. 107(Sch. item 3), 11/2001 s. 3(Sch. item 25.4), 52/2001 s. 13(2)(a), 108/2004 s. 117(1)(Sch. 3 item 72), 18/2005 s. 18(Sch. 1 item 40.4), 97/2005 s. 182(Sch. 4 items 19.3, 19.4), 14/2006 s. 16, 24/2008 s. 78(2), 13/2010 s. 51(Sch. item 22.2), 36/2011 s. 36, 19/2012 s. 22, 28/2012 s. 35, 17/2014 s. 160(Sch. 2 item 40.2), 37/2014 s. 10(Sch. item 59.6), 55/2014 s. 172, repealed by No. 6/2018 s. 54.

[9] Pt 4 Div. 9 (Heading and s. 123) amended by Nos 6855 s. 2, 7039 s. 2(1), substituted as Pt 4. Div. 9 (Heading and s. 123C) by No. 10074 s. 11(1), amended by Nos 19/1989 s. 16(Sch. item 21.3), 51/1989 s. 144(2) (as amended by No. 34/1990 s. 4(Sch. 3 items 17, 18)), 125/1993 s. 20(4)(c), 35/1996 s. 453(Sch. 1 item 29.5), 102/1997 s. 49(Sch. item 2.2), 46/1998 s. 7(Sch. 1), 52/2001 s. 13(2)(b), 108/2004 s. 117(1)(Sch. 3 item 72), 18/2005 s. 18(Sch. 1 items 40.5, 40.6), 14/2006 s. 17, 24/2008 s. 78(3), 37/2014 s. 10(Sch. item 59.6), 55/2014 s. 173, repealed by No. 6/2018 s. 54.

[10] Ss 132–133:

S. 132 substituted by No. 8752 s. 6(1)(c), amended by No. 57/1989 s. 3(Sch. item 67.26), repealed by No. 100/1995 s. 23(2).

S. 132A inserted by No. 8003 s. 3(b), amended by Nos 8752 s. 6(1)(d), 57/1989 s. 3(Sch. item 67.26), repealed by No. 100/1995 s. 23(2).

S. 133 amended by Nos 8003 s. 3(c), 9156 s. 3(2)(c), repealed by No. 100/1995 s. 23(2).

[11] Ss 138, 139:

S. 138 repealed by No. 8752 s. 6(1)(g).

S. 139 amended by Nos 8752 s. 6(1)(h), 10231 s. 10, 57/1989 s. 3(Sch. item 67.26), repealed by No. 100/1995 s. 23(6).

[12] S. 140(1)(c)–140(1)(g):

S. 140(1)(c) inserted by No. 8752 s. 6(1)(i), repealed by No. 100/1995 s. 23(7)(c).

S. 140(1)(d) inserted by No. 8752 s. 6(1)(i), amended by No. 10257 s. 84(d), repealed by No. 100/1995 s. 23(7)(c).

S. 140(1)(e)–(g) inserted by No. 8752 s. 6(1)(i), repealed by No. 100/1995 s. 23(7)(c).

[13] S. 152(1)(b): The amendment proposed by section 32(a) of the Statute Law Amendment (Evidence Consequential Provisions) Act 2009, No. 69/2009 is not included in this publication because section 152(1)(b) was repealed before this amendment came into operation.

[14] Schedule 2: See note 2.