Evidence Amendment (Self-incrimination) Regulations 2023

Administered by Attorney-General's Department

Legislation au F2023L01022 Regulations Not in force Legislative Instrument

Legislation content

Evidence Amendment (self-incrimination) regulations 2023

 

 

EXPLANATORY STATEMENT
 

Issued by authority of the Attorney-General

under section 197 of the Evidence Act 1995 (Cth)

 

Purpose and operation of the Instrument

Section 197 of the Evidence Act 1995 (Cth) (Commonwealth Evidence Act) provides that the Governor-General may make regulations giving effect to the purposes of the Act.

The Evidence Amendment (Self-incrimination) Regulations 2023 (the instrument) will make amendments to the Evidence Regulations 2018 (Cth) so that an evidentiary certificate issued under section 128 of the Evidence (National Uniform Legislation) Act 2011 (NT) has the same effect as if it had been issued under section 128 of the Commonwealth Evidence Act. This will afford appropriate protections to witnesses and facilitate the efficient conduct of prosecutions where issues of the privilege in respect of self-incrimination arise.

Section 128 of the Commonwealth Evidence Act allows a court to issue an evidentiary certificate to a witness, with the effect that evidence given by the witness cannot be used against them in other proceedings. This is a way to facilitate the giving of evidence by a witness who might otherwise rely on the privilege against self-incrimination to refuse to give evidence.

Some state and territory evidence legislation also provides for a court to issue an evidentiary certificate to a witness. The Commonwealth Evidence Act enables state and territory evidence legislation to be prescribed for the purposes of section 128 of the Commonwealth Evidence Act. Where this occurs, an evidentiary certificate issued under the prescribed state or territory legislation will have the same effect as if issued under the Commonwealth Evidence Act.

This instrument amends the Evidence Regulations 2018 (Cth) to prescribe section 128 of the Evidence (National Uniform Legislation) Act 2011 (NT) for the purposes of section 128 of the Commonwealth Evidence Act.  The instrument is a legislative instrument for the purposes of the Legislative Instruments Act 2003. The instrument commences the day after it is registered on the Federal Registration of Legislation.

 

Consultation

The Attorney-General’s Department undertook consultation with the Commonwealth Director of Public Prosecutions and the Northern Territory Department of the Attorney-General and Justice in relation to the instrument. No feedback was received that required changes to the instrument.

Regulation Impact Statement

The Office of Best Practice Regulation (OBPR) assessed that a Regulation Impact Statement was not required for the instrument as it is unlikely to have more than a minor regulatory impact (OPBR reference OIA23-04998).

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Evidence Amendment (Self-incrimination) Regulations 2023 (Cth)

This Disallowable Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Disallowable Legislative Instrument

The Evidence Amendment (Self-incrimination) Regulations 2023 (the instrument) provides that an evidentiary certificate issued under section 128 of the Evidence (National Uniform Legislation) Act 2011 (NT) has effect for the purposes of section 128 of the Evidence Act 1995 (Cth). This affords appropriate protections to witnesses and facilitates the efficient conduct of prosecutions where issues of the privilege in respect of self-incrimination arise.

The instrument amends the Evidence Regulations 2018 (Cth) to prescribe section 128 of the Evidence (National Uniform Legislation) Act 2011 (NT). 

The instrument is a legislative instrument for the purposes of the Legislative Instruments Act 2003. The instrument commences the day after it is registered on the Federal Registration of Legislation.

Human rights implications

The instrument engages with the common law right to a fair trial provided for in article 14 of the International Covenant on Civil and Political Rights (ICCPR).

The instrument promotes the right of a person to examine, or have examined, the witnesses against them and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against them, which is a minimum guarantee in criminal proceedings (article 14(3)(e) of the ICCPR). It does this by providing for evidentiary certificates issued under the Evidence (National Uniform Legislation) Act 2011 (NT) to be recognised in certain proceedings. This is a way to facilitate the giving of evidence by a witness who might otherwise rely on the privilege against self-incrimination to refuse to give evidence.

The instrument also promotes the minimum guarantee in criminal proceedings (article 14(3) of the ICCPR) that a person charged with a criminal offence should not be ‘compelled to testify against himself or to confess guilt’ (article 14(3)(g)).

The instrument also promotes the presumption of innocence in criminal matters in accordance with article 14(2) of the ICCPR. The presumption of innocence imposes on the prosecution the burden of proving the charge and guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt.

The instrument promotes the presumption of innocence by supporting the Evidence Act 1995 (Cth) to uphold the privilege against self-incrimination and provide for a court to issue a certificate confirming that where a witness gives evidence that may be self-incriminating, the evidence cannot be used against them in other proceedings.

The instrument is compatible with human rights because it supports the common law right to a fair trial.

 


Attachment A

NOTES ON SECTIONS

Details of the proposed Evidence Amendment (Self-incrimination) Regulations 2023

Section 1 – Name of Regulations

This section would provide that the title of the instrument is the Evidence Amendment (Self-incrimination) Regulations 2023.

Section 2 - Commencement

The section would provide that the instrument commences the day after the instrument is registered.

Section 3 – Authority

This section would provide that the Evidence Amendment (Self-incrimination) Regulations 2023 are made under the Evidence Act 1995.

Section 4 – Schedule

This section would provide that each instrument that is specified in the Schedule to this instrument is amended as set out in the applicable items in the Schedule concerned, and any other item in the Schedule to this instrument has effect according to its terms.

SCHEDULE 1 – Amendments

Item [1] – subsection 9(e)

Subsection 9(e) of the instrument would prescribe section 128 of the Evidence (National Uniform Legislation) Act 2011 (NT) for the purposes of section 128 of the Evidence Act 1995 (Cth). This will afford appropriate protections to witnesses and facilitate the efficient conduct of prosecutions where issues of the privilege in respect of self-incrimination arise.

Overview

The Evidence Amendment (Self-incrimination) Regulations 2023, issued under section 197 of the Evidence Act 1995 (Cth), aim to ensure that evidentiary certificates issued under section 128 of the Evidence (National Uniform Legislation) Act 2011 (NT) have the same effect as those issued under the Commonwealth Evidence Act. This amendment addresses the need to provide appropriate protections for witnesses and facilitate the efficient conduct of prosecutions in situations where the privilege against self-incrimination may otherwise deter witnesses from giving evidence. The instrument was developed following consultations with the Commonwealth Director of Public Prosecutions and the Northern Territory Department of the Attorney-General and Justice, and it was assessed to have a minor regulatory impact. The Regulations promote human rights by supporting the common law right to a fair trial, as recognised under the International Covenant on Civil and Political Rights, by ensuring that witnesses can give evidence without fear of self-incrimination. The Evidence Amendment (Self-incrimination) Regulations 2023 are a legislative instrument under the Legislative Instruments Act 2003, and they commence the day after they are registered on the Federal Register of Legislation. These Regulations align the evidentiary certificates issued under the Northern Territory's Evidence (National Uniform Legislation) Act 2011 with those under the Commonwealth Evidence Act, thereby enhancing the legal protections for witnesses in criminal proceedings and supporting the presumption of innocence. The Regulations also align with international human rights standards by ensuring that individuals have the right to a fair trial and are not compelled to testify against themselves.

Scope and Application

The Evidence Amendment (Self-incrimination) Regulations 2023, made under the authority of section 197 of the Evidence Act 1995 (Cth), aim to enhance protections for witnesses and streamline the prosecution process by ensuring that evidentiary certificates issued under the Evidence (National Uniform Legislation) Act 2011 (NT) are recognised in Commonwealth courts. This legislative instrument amends the Evidence Regulations 2018 (Cth) to prescribe the relevant section of the Northern Territory legislation, ensuring that witnesses who might otherwise be reluctant to testify due to concerns about self-incrimination can do so with the assurance that their testimony will not be used against them in subsequent proceedings. The regulations apply to witnesses who may be subject to evidentiary certificates in both Commonwealth and Northern Territory courts, facilitating the fair and efficient conduct of legal proceedings. The instrument, which is a legislative instrument under the Legislative Instruments Act 2003, commences the day after it is registered on the Federal Register of Legislation.

Key Provisions

The Evidence Amendment (Self-incrimination) Regulations 2023 (sections 2, 3, 4) modify the Evidence Regulations 2018 to ensure that evidentiary certificates issued under section 128 of the Evidence (National Uniform Legislation) Act 2011 (NT) have the same legal standing as those issued under the Commonwealth Evidence Act 1995 (Cth). This change provides necessary protections to witnesses and supports the efficient prosecution of cases where witnesses might otherwise be reluctant to testify due to concerns about self-incrimination. The regulations achieve this by prescribing the relevant NT legislation for the purposes of section 128 of the Commonwealth Evidence Act, ensuring that the protection against self-incrimination applies uniformly across jurisdictions. The obligations imposed by these regulations are primarily procedural and ensure the seamless integration of evidentiary certificates from the NT into Commonwealth legal proceedings. Courts must recognize and apply NT evidentiary certificates as if they were issued under the Commonwealth Evidence Act, thus facilitating the testimony of witnesses who might otherwise invoke the privilege against self-incrimination. This recognition helps maintain the integrity and efficiency of legal proceedings, ensuring that all relevant evidence can be presented without undue hindrance. Breach of these regulations, while not explicitly detailing specific offences or penalties within the explanatory statement, would likely involve legal consequences due to non-compliance with prescribed procedures for handling evidentiary certificates. Although the maximum penalties are not specified, such breaches could lead to judicial review, appeals, or other legal actions that might result in the exclusion of improperly handled evidence, potentially affecting the outcome of the proceedings. The importance of adhering to these regulations lies in their role in upholding the legal rights of witnesses and ensuring the fair administration of justice.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.