Evidence Regulations 2018

Evidence Regulations 2018

made under of the

Evidence Act 1995

Compilation No. 1

Compilation date: 22 July 2023

Includes amendments up to: F2023L01022

Registered: 7 August 2023

About this compilation

This compilation

This is a compilation of the Evidence Regulations 2018 that shows the text of the law as amended and in force on 22 July 2023 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the Register for the compiled law.

Self‑repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

Contents

1 Name

3 Authority

5 Definitions

6 Exceptions to hearsay rule—notices of previous representations

7 The tendency rule and the coincidence rule—form of notices

8 Privilege against self‑incrimination—form of certificate

9 State and Territory provisions about certificates for subsection 128(12) of the Act

10 Fingerprint evidence of identity—affidavits by State or Territory police officers

11 Fingerprint evidence of identity—affidavits by Australian Federal Police officers

12 State and Territory laws for certain definitions in the Act

Schedule 1—Forms

Form 1—Certificate under section 128 or 128A of the Evidence Act 1995

Form 2—Affidavit of member of State or Territory police force concerning fingerprints

Form 3—Affidavit of member of Australian Federal Police concerning fingerprints

Endnotes

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

1  Name

  This instrument is the Evidence Regulations 2018.

3  Authority

  This instrument is made under the Evidence Act 1995.

5  Definitions

 (1) In this instrument:

Act means the Evidence Act 1995.

address includes a private, business or official address.

notice of previous representation means a notice given under subsection 67(1) of the Act.

notifying party, in relation to a notice, means the person giving the notice.

 (2) In this instrument, a reference to a Form by number is a reference to the Form of that number set out in Schedule 1.

Note: Section 25C of the Acts Interpretation Act 1901 provides that strict compliance with a form is not required and substantial compliance is sufficient.

6  Exceptions to hearsay rule—notices of previous representations

 (1) This section is made for the purposes of section 67 of the Act.

 (2) A notice of previous representation must state:

 (a) subject to subsection (6), the substance of evidence of a previous representation that the notifying party intends to adduce; and

 (b) the substance of all other relevant representations made by the person who made that previous representation, so far as they are known to the notifying party; and

 (c) particulars of:

 (i) the date, time, place and circumstances at or in which each of the representations mentioned in paragraph (a) or (b) was made; and

 (ii) the names of the persons by whom, and the persons to whom, each of those representations was made; and

 (iii) in a civil proceeding—the address of each person so named;

  so far as they are known to the notifying party.

 (3) If a notifying party intends to rely on any of paragraphs 63(2)(a) or (b), 65(2)(a), (b), (c) or (d), 65(3)(a) or (b) or 65(8)(a) or (b) of the Act, the party’s notice of previous representation must state particulars of the facts on the basis of which it is alleged that the person who made a representation referred to in the notice is not available to testify concerning the fact to be proved by adducing evidence of that representation.

 (4) If a notifying party intends to rely on paragraph 64(2)(a) or (b) of the Act, the party’s notice of previous representation must state particulars of the facts that the party will rely on to establish the grounds specified in subsection 64(2) of the Act.

 (5) If a notice of previous representation refers to a previous representation that is in writing:

 (a) a copy of the document, or of the relevant portion of the document, containing the representation must be attached to the notice; and

 (b) the notice must identify the document unless:

 (i) a copy of the document is attached to the notice; and

 (ii) the identity of the document is apparent on the face of the copy.

 (6) Where a copy of a document, or of a portion of a document, is attached to a notice it is a sufficient compliance for the purposes of paragraph (2)(a) to specify in the notice, or in the copy of a document or portion of a document attached to the notice, the representation evidence of which the notifying party intends to adduce.

 (7) On the application of a party in a criminal proceeding, the court may make an order directing the notifying party to disclose the address of any person named in a notice of previous representation.

 (8) The direction may be given on the terms the court considers appropriate.

7  The tendency rule and the coincidence rule—form of notices

 (1) This section is made for the purpose of section 99 of the Act.

 (2) A notice given under subsection 97(1) of the Act (relating to the tendency rule) must state:

 (a) the substance of the evidence of the kind referred to in that subsection that the party giving the notice intends to adduce; and

 (b) if that evidence consists of, or includes, evidence of the conduct of a person, particulars of:

 (i) the date, time, place and circumstances at or in which the conduct occurred; and

 (ii) the names of each person who saw, heard or otherwise perceived the conduct; and

 (iii) in a civil proceeding—the address of each person so named;

  so far as they are known to the notifying party.

 (3) A notice given under subsection 98(1) of the Act (relating to the coincidence rule) must state:

 (a) the substance of the evidence of the occurrence of 2 or more events that the party giving the notice intends to adduce; and

 (b) particulars of:

 (i) the date, time, place and circumstances at or in which each of those events occurred; and

 (ii) the names of each person who saw, heard or otherwise perceived each of those events; and

 (iii) in a civil proceeding—the address of each person so named;

  so far as they are known to the notifying party.

 (4) On the application of a party in a criminal proceeding, the court may make an order directing the notifying party to disclose the address of any person named in a notice mentioned in this section.

 (5) The direction may be given on the terms the court considers appropriate.

8  Privilege against self‑incrimination—form of certificate

 (1) A certificate under section 128 or 128A of the Act may be in accordance with Form 1.

 (2) A certificate is not liable to be called into question by reason of its non‑compliance with Form 1.

9  State and Territory provisions about certificates for subsection 128(12) of the Act

  For the purposes of paragraph 128(13)(b) of the Act, the following provisions are prescribed for the purposes of subsection 128(12) of the Act:

 (a) section 128 of the Evidence Act 2008 (Vic);

 (b) section 11 of the Evidence Act 1906 (WA);

 (c) section 128 of the Evidence Act 2001 (Tas.);

 (d) section 128 of the Evidence Act 2011 (ACT);

 (e) section 128 of the Evidence (National Uniform Legislation) Act 2011 (NT).

10  Fingerprint evidence of identity—affidavits by State or Territory police officers

  For the purposes of paragraph 179(1)(a) of the Act, Form 2 is prescribed.

11  Fingerprint evidence of identity—affidavits by Australian Federal Police officers

  For the purposes of paragraph 180(1)(a) of the Act, Form 3 is prescribed.

12  State and Territory laws for certain definitions in the Act

 (1) For the purposes of the definitions of Australian lawyer, Australian legal practitioner and Australian practising certificate in Part 1 of the Dictionary at the end of the Act, the following laws are specified:

 (a) the Legal Profession Uniform Law Application Act 2014 (NSW);

 (b) the Legal Profession Uniform Law Application Act 2014 (Vic);

 (c) the Legal Profession Act 2007 (Qld);

 (d) the Legal Profession Act 2008 (WA);

 (e) the Legal Practitioners Act 1981 (SA);

 (f) the Legal Profession Act 2007 (Tas.);

 (g) the Legal Profession Act 2006 (ACT);

 (h) the Legal Profession Act 2006 (NT).

 (2) For the purposes of the definition of Australian‑registered foreign lawyer in Part 1 of the Dictionary at the end of the Act, the following laws are specified:

 (a) the Legal Profession Uniform Law Application Act 2014 (NSW);

 (b) the Legal Profession Uniform Law Application Act 2014 (Vic);

 (c) the Legal Profession Act 2007 (Qld);

 (d) the Legal Profession Act 2008 (WA);

 (e) the Legal Profession Act 2007 (Tas.);

 (f) the Legal Profession Act 2006 (ACT);

 (g) the Legal Profession Act 2006 (NT).

Schedule 1—Forms

Form 1—Certificate under section 128 or 128A of the Evidence Act 1995

Note: See subsection 8(1).

[Set out heading to action or matter]

CERTIFICATE UNDER SECTION 128 OR 128A OF THE
EVIDENCE ACT 1995

This Court certifies under section 128*/128A* of the Evidence Act 1995 of the Commonwealth that evidence in these proceedings by [state name of witness] on [state date or dates], a record of which is attached to this certificate*, is evidence*/information* to which subsection 128(7)*/128A(8)* of that Act applies.

[A transcript, or other record, of the evidence is to be attached to this certificate, and duly authenticated by the court or its proper officer.]

Dated:

L.S.

(affix seal)

*Delete if not applicable

Note: Subsection 128(7) of the Evidence Act 1995 provides as follows:

(7) In any proceeding in an Australian court:

(a) evidence given by a person in respect of which a certificate under this section has been given; and

(b) evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence;

cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence.

Subsection 128A(8) of the Evidence Act 1995 provides as follows:

(8) In any proceeding in an Australian court:

(a) evidence of information disclosed by a relevant person in respect of which a certificate has been given under this section; and

(b) evidence of any information, document or thing obtained as a direct result or indirect consequence of the relevant person having disclosed that information;

cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence concerned.

Form 2—Affidavit of member of State or Territory police force concerning fingerprints

Note: See section 10.

Section 179 of the Evidence Act 1995

Affidavit of member of State or Territory police force concerning fingerprints

[Set out heading to action or matter]

I, [name of deponent] of [address of deponent], a member of the police force of [State or Territory] make oath and say*/affirm*:

1. I am a fingerprint expert for the police force of [State or Territory].

2. I have examined the fingerprint form marked for identification with the letter ‘A’.

3. I have compared the fingerprints shown on that form with the fingerprints shown on the fingerprint form in the records held by the police force of [State or Territory] showing the fingerprints of [name of person and alias, if any].

4. The fingerprints on those forms were compared and in my opinion were made by the same source.

5. According to the records of the police force of [State or Territory], which I believe to be accurate, [name of person] was convicted in that State*/Territory* of the following offences:

6. Annexed to this affidavit and marked with the letters [insert an alphabetical sequence of letters, commencing at ‘B’, corresponding to the number of annexures], are certified copies or certificates of conviction for each of those convictions.

7. From an examination of the records referred to above, I believe that the person referred to in each annexed certified copy or certificate as having been convicted of the offence stated in it is the person whose fingerprints are shown on the fingerprint forms referred to in paragraph 3 of this affidavit.

SWORN*/AFFIRMED*

by the deponent at [place]

this    day

of [month and year]  .

Before me:

Form 3—Affidavit of member of Australian Federal Police concerning fingerprints

Note: See section 11.

Affidavit of member of Australian Federal Police concerning fingerprints

[Set out heading to action or matter]

I, [name of deponent] of [address of deponent], a member*/special member*/staff member* of the Australian Federal Police of, make oath and say*/affirm*:

1.I am a fingerprint expert for the Australian Federal Police.

2.I have examined the fingerprint form marked for identification with the letter ‘A’.

3.I have compared the fingerprints shown on that form with the fingerprints shown on the fingerprint form in the records held by the Australian Federal Police showing the fingerprints of [name of person and alias, if any].

4.The fingerprints on those forms were compared and in my opinion were made by the same source.

5.According to the records of the Australian Federal Police, which I believe to be accurate, [name of person] was convicted of the following offences against a law of the Commonwealth:

6.Annexed to this affidavit, and marked with the letters [insert an alphabetical sequence of letters, commencing at ‘B’, corresponding to the number of annexures], are certified copies or certificates of conviction for each of those convictions.

7.From an examination of the records referred to above, I believe that the person referred to in each annexed certified copy or certificate as having been convicted of the offence stated in it is the person whose fingerprints are shown on the fingerprint forms referred to in paragraph 3 of this affidavit.

SWORN*/AFFIRMED*

by the deponent at [place]

this  day

of [month and year]  .

Before me:

Endnotes

Endnote 1—About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Abbreviation key—Endnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history—Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.

Editorial changes

The Legislation Act 2003 authorises First Parliamentary Counsel to make editorial and presentational changes to a compiled law in preparing a compilation of the law for registration. The changes must not change the effect of the law. Editorial changes take effect from the compilation registration date.

If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe how an amendment is to be made. If, despite the misdescription, the amendment can be given effect as intended, then the misdescribed amendment can be incorporated through an editorial change made under section 15V of the Legislation Act 2003.

If a misdescribed amendment cannot be given effect as intended, the amendment is not incorporated and “(md not incorp)” is added to the amendment history.

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history