Foreign Evidence Amendment Act 2010
No. 55, 2010
An Act to amend the Foreign Evidence Act 1994, and for related purposes
Contents
1 Short title
2 Commencement
3 Schedule(s)
Schedule 1—Amendments
Part 1—Amendments
Foreign Evidence Act 1994
Part 2—Application and transitional provisions
Foreign Evidence Amendment Act 2010
No. 55, 2010
An Act to amend the Foreign Evidence Act 1994, and for related purposes
[Assented to 3 June 2010]
The Parliament of Australia enacts:
1 Short title
This Act may be cited as the Foreign Evidence Amendment Act 2010.
2 Commencement
This Act commences on the day after it receives the Royal Assent.
3 Schedule(s)
Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1—Amendments
Part 1—Amendments
Foreign Evidence Act 1994
1 Subsection 3(1)
Insert:
business has a meaning affected by clause 1 of Part 2 of the Dictionary in the Evidence Act 1995.
2 Subsection 3(1)
Insert:
business record means a document that:
(a) is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business; or
(b) at any time was or formed part of such a record.
3 Subsection 3(1)
Insert:
proceeds of crime law means the Proceeds of Crime Act 2002 or the Proceeds of Crime Act 1987.
4 Subsection 3(1) (paragraph (a) of the definition of related civil proceeding)
Omit “the Proceeds of Crime Act 2002 or the Proceeds of Crime Act 1987”, substitute “a proceeds of crime law”.
5 Paragraph 20(1)(c)
Omit “the Proceeds of Crime Act 2002 in relation to a designated offence”, substitute “a proceeds of crime law”.
6 At the end of subsection 20(2)
Add:
; or (c) a proceeding under a law that is a corresponding law within the meaning of a proceeds of crime law.
7 After paragraph 22(1)(a)
Insert:
(aa) under an obligation to tell the truth imposed, whether expressly or by implication, by or under a law of the foreign country concerned; or
9 Subsection 23(1)
Omit “an audio or video tape”, substitute “a tape, disk or other device from which sounds or images are capable of being reproduced”.
10 Subsection 24(1)
Omit “subsection (2)”, substitute “this section”.
11 At the end of section 24
Add:
(3) Paragraph (2)(b) does not apply if:
(a) the foreign material is a business record; and
(b) the only reason why the evidence would not have been admissible had it been adduced from the person at the hearing is that an Australian law relating to hearsay evidence (however described) would have applied to the evidence.
(4) For the purpose of determining whether foreign material is a business record, and may be adduced as evidence, the court may:
(a) examine the foreign material; and
Overview
The Foreign Evidence Amendment Act 2010 (No. 55, 2010) was enacted by the Parliament of Australia to address certain deficiencies and update the existing framework provided by the Foreign Evidence Act 1994. This legislation aims to modernise and streamline the process of obtaining foreign evidence in Australian legal proceedings, thereby enhancing the efficiency and effectiveness of cross-border legal cooperation. The policy objective behind the Act is to ensure that foreign evidence can be more readily admitted in Australian courts while maintaining the integrity and reliability of the evidence obtained from overseas jurisdictions. The Act introduces amendments to clarify definitions, expand the types of admissible evidence, and provide greater flexibility in the application of the law, ensuring that the foreign evidence process remains robust and adaptable to evolving legal and technological landscapes.
Scope and Application
The Foreign Evidence Amendment Act 2010 is a Commonwealth Act that amends the Foreign Evidence Act 1994, and it applies to persons and entities involved in legal proceedings in Australian courts that require the admissibility of foreign evidence. The Act pertains to the conduct of obtaining and using foreign evidence in legal proceedings, including civil and criminal matters. The amendments extend to foreign material obtained or used in proceedings occurring both before and after the commencement of the Act, ensuring that it applies comprehensively to ongoing and future legal processes. The Act's jurisdictional reach is national, as it is a Commonwealth Act; however, it also includes provisions that allow for state and territory courts to apply the amended provisions if specified in regulations. The Act does not explicitly exclude any specific persons, entities, or industries from its application, but it does provide specific definitions and clarifications to ensure its provisions are correctly interpreted and applied. The Act can be further extended or restricted through subordinate instruments, such as regulations, which can specify the application of the amended provisions to particular states or territories.
Key Provisions
- The Foreign Evidence Amendment Act 2010 amends the Foreign Evidence Act 1994 to incorporate several significant changes. Firstly, it introduces new definitions and clarifications to existing terms (sections 1, 2, 3, and 4). Specifically, it defines 'business record' as a document that is part of the records belonging to a person, body, or organisation in the course of or for the purposes of a business. It also modifies the definition of 'proceeds of crime law' to include any law that is a corresponding law within the meaning of a proceeds of crime law. Furthermore, it expands the types of documents or things that can be requested from foreign countries, including documents or things from which sounds or images are capable of being reproduced.
- The Act imposes various obligations on parties involved in foreign evidence proceedings. For instance, it requires that certain evidence, such as business records, be admissible under specific conditions, notably when the only reason for inadmissibility would be an Australian law relating to hearsay evidence (section 24(3)). It also mandates that courts can examine foreign material and draw reasonable inferences from its form and contents to determine admissibility (section 24). Additionally, the Act requires that the new amendments apply to testimony and foreign material obtained both before and after the Act's commencement, provided it is adduced after the Act's commencement (sections 7, 10, 11, 13, and 14).
- There are no explicit offences, penalties, or civil/criminal consequences stated within the text of the Act itself. However, the enforcement of the provisions regarding the admissibility of foreign evidence and the obligations placed upon courts and parties in foreign evidence proceedings would likely be subject to the broader legal framework governing evidence and procedure in Australian courts. The penalties for failing to comply with these obligations would typically fall under the relevant jurisdictional laws concerning the administration of justice, which may include fines or other legal sanctions for non-compliance.
- Area of Law
- Evidence Law
- Instrument
- Act
- Concepts
- Commencement Provisions
- Definitions & Interpretation
- Repeal & Amendment