Foreign Evidence (Application of Amendments) Regulations 2021

Administered by Attorney-General's Department

Legislation au F2021L00979 Regulations In force Legislative Instrument

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FOREIGN EVIDENCE (APPLICATION OF AMENDMENTS) regulations 2021

 

EXPLANATORY STATEMENT
 

Issued by authority of the Attorney-General

under sub-item 19(3), Schedule 1, of the Foreign Evidence Amendment Act 2010

 

PURPOSE AND OPERATION OF THE INSTRUMENT

The Foreign Evidence (Application of Amendments) Regulations 2021 (the Regulations) replace the Foreign Evidence (Application of Amendments) Regulations 2021 (the sunsetting Regulations), which sunset on 1 October 2021.

The Foreign Evidence Amendment Act 2010 (the Amendment Act) came into force on 4 June 2010 and made the amendments to the Foreign Evidence Act 1994 (the Act) relating to requirements for testimony in legal proceedings. In particular, the amendments:

        clarified the application of the Act to non-conviction based proceeds of crime matters (s 20)

        provided that testimony may also be taken under an obligation to tell the truth imposed, whether expressly or implied, by or under a law of the foreign country (s 22)

        modernised references to audio and video tape (s 23)

        streamlined the process for adducing foreign material that is a business record by providing that foreign business records can be adduced where they contain hearsay evidence, provided the other evidentiary requirements in the particular jurisdiction are satisfied (s 24), and

        removed an anomaly whereby the Attorney-General, in certifying that material has been received in response to a request, must also certify that the material is ‘testimony’ (s 26; however, this provision has been subsequently replaced by further amending legislation which is applicable to all states and territories).

 

The Act enables evidence collection in overseas countries to be used in an Australian court. Part 3 of the Act provides a means of adducing foreign material, obtained in response to a request by the Attorney-General to a foreign country, as evidence in certain proceedings in Australian courts.

Section 20(2) of the Act provides that Part 3 of the Act may apply to criminal proceedings, related civil proceedings, and proceeds of crime proceedings that take place under the jurisdiction of a court in any state or territory specified in regulations. Pursuant to regulation 6(1) of the Foreign Evidence (Foreign Material—Criminal and Related Civil Proceedings) Regulations 2018, each of the states and territories and Norfolk Island are specified as a state or territory to which the provisions of Part 3 of the Act apply.

Sub-item 19(3) of Schedule 1 to the Amendment Act provides that the application of those amendments to a proceeding in a particular state or territory may be prescribed in regulations.

The sunsetting Regulations gave effect to this item, with a sunset date of 1 October 2021. They listed the following states and territories: Western Australia, South Australia, Tasmania, the Australian Capital Territory and the Northern Territory.

The Regulations repeal the sunsetting Regulations, and remake the instrument to re-list Western Australia, South Australia, Tasmania, the Australian Capital Territory and the Northern Territory.

The state and territory Attorneys-General were consulted in relation to opting in to the Regulations. The Attorneys-General of New South Wales, Victoria and Queensland indicated that their jurisdictions did not wish to be listed in the Regulations at this time.

 

Details of the Regulations are set out in the Attachment.

 

The Regulations are a legislative instrument for the purposes of the Legislation Act 2003.

 

CONSULTATION

 

The state and territory Attorneys-General were consulted in relation to opting in to the Regulations. No other consultation was undertaken outside of the Australian Government for the Regulations as it relates to international cooperation on criminal justice and law enforcement matters between Australia and foreign countries. The Regulations do not have a direct, or substantial indirect, effect on business, nor do they restrict competition.

REGULATION IMPACT STATEMENT

The Office of Best Practice Regulations (OBPR) has advised that a Regulation Impact Statement is not required for the Regulations (OBPR Reference number 43024).

Statement of Compatibility with Human Rights

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

Foreign Evidence (Application of Amendments) Regulations 2021

The Regulations are 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

The Foreign Evidence Act (Application of Amendments) Regulations 2021 (the Regulations) remake the Foreign Evidence (Application of Amendments) Regulations 2011 (the sunsetting Regulations) ahead of their sunset date of 1 October 2021. The Regulations prescribe the application of amendments made by the Foreign Evidence Amendment Act 2010 (Amendment Act) to the Foreign Evidence Act 1994 (the Act) to states and territories specified.

The Regulations give effect to item 19(3) of the Amendment Act by prescribing that the amendments it made to the Act apply to criminal proceedings, civil proceedings and related proceeds of crime actions in those states and territories that consented to its application, being Western Australia, South Australia, Tasmania, the Australian Capital Territory and the Northern Territory.

Human rights implications

Right to a fair trial

The Regulations engage the rights to a fair trial and minimum guarantees in criminal and civil proceedings as prescribed in Article 14 of the International Covenant on Civil and Political Rights (ICCPR). Article 14 is aimed at ensuring the proper administration of justice by upholding, amongst other things, the right to a fair hearing and the right of a person to have a sentence or conviction reviewed by a higher court.

The Regulations engage the right to a fair trial in Article 14 by affecting the requirements for testimony in relevant legal proceedings. That is, they enable States and Territories to opt in to certain amendments intended to create efficiencies in relation to the requirements for testimony, including streamlining the process for adducing foreign material that are business records. For this reason, States and Territories opting in to these amendments arguably increase the prospects of a fair trial for litigants in relevant proceedings in those jurisdictions, for example, by streamlining the process for adducing foreign material that is a business record. The Regulations do not limit rights or otherwise alter Australia’s laws or arrangements in relation to criminal procedure, nor create new criminal offences, and are instead intended to promote the right to fair trial.

Conclusion

The Regulations are 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 on the basis that they promote the right to a fair trial.

 

 

ATTACHMENT

NOTES ON SECTIONS

 

Part 1 - Introduction

Section 1 – Name

This section provides that the title of the Regulations is the Foreign Evidence (Application of Amendments) Regulations 2021.

Section 2 – Commencement

This section provides that the Regulations commence on 1 October 2021.

Section 3 – Authority

This section specifies that the Regulations made under sub-item 19(3) of Schedule 1 to the Amendment Act.

Section 4 – Schedules

This section provides that each instrument that is specified in a Schedule to the Regulations is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the Regulations has effect according to its terms.

Section 5 – Definitions

This section provides that in the Regulations ‘Act’ means the Amendment Act.

 

Part 2 – Application of amendments to state and territory court proceedings

Section 6 – Application of amendments to state and territory court proceedings

This section provides that for the purposes of sub-item 19(2) of Schedule 1 to the Act, the amendments made by that Schedule apply to a proceeding (commencing on or after 1 October 2021) mentioned in sub-item 20(2) of the Act, in a court of any of the following states and territories:

(a)    Western Australia;

(b)    South Australia;

(c)    Tasmania;

(d)    the Australia Capital Territory;

(e)    the Northern Territory.

 

 

This means that the amendments to the Act made by the Amendment Act apply to criminal proceedings, related civil proceedings, and proceeds of crime proceedings in each of these jurisdictions commencing on or after 1 October 2021 as a result of their listing in the Regulations.

 

Schedule 1 – Repeals

The Schedule repeals the whole of the Foreign Evidence (Application of Amendments) Regulations 2011.

 

Overview

The Foreign Evidence (Application of Amendments) Regulations 2021 (the Regulations) were enacted to ensure the continued application of the amendments made by the Foreign Evidence Amendment Act 2010 (the Amendment Act) to the Foreign Evidence Act 1994 (the Act) in specified states and territories. The Regulations were introduced to replace the Foreign Evidence (Application of Amendments) Regulations 2021, which were set to sunset on 1 October 2021. This legislative instrument was issued by authority of the Attorney-General under sub-item 19(3) of Schedule 1 to the Amendment Act, and it serves to prescribe the application of the amendments to criminal, civil, and proceeds of crime proceedings in Western Australia, South Australia, Tasmania, the Australian Capital Territory, and the Northern Territory. The primary policy objective is to enable the efficient use of foreign evidence in Australian courts by streamlining the process for adducing foreign material that meets the evidentiary requirements of the jurisdiction. The Regulations address the need for clear and efficient mechanisms for the application of foreign evidence in legal proceedings. They allow the specified states and territories to adopt certain amendments that clarify the application of the Act to non-conviction based proceeds of crime matters, allow testimony under an obligation to tell the truth imposed by foreign law, modernise references to audio and video tape, streamline the process for adducing foreign business records, and rectify anomalies in the certification process. By specifying these jurisdictions, the Regulations aim to facilitate the use of foreign evidence in relevant legal proceedings, thereby promoting the proper administration of justice and the right to a fair trial.

Scope and Application

The Foreign Evidence (Application of Amendments) Regulations 2021 (the Regulations) are subsidiary legislation designed to facilitate the application of amendments made by the Foreign Evidence Amendment Act 2010 (Amendment Act) to the Foreign Evidence Act 1994 (Act). The Regulations specify which states and territories can apply these amendments, thereby governing the scope and operation of the Act in relation to foreign evidence in legal proceedings. They apply to criminal proceedings, related civil proceedings, and proceeds of crime proceedings in specified jurisdictions, including Western Australia, South Australia, Tasmania, the Australian Capital Territory, and the Northern Territory. The Regulations sunset the previous Foreign Evidence (Application of Amendments) Regulations 2011 and re-list the aforementioned jurisdictions, ensuring continuity and applicability of the amended provisions. The amendments themselves aim to streamline the process for adducing foreign material as evidence in Australian courts, including modernising references and clarifying certain evidentiary requirements. The Regulations are compatible with human rights, particularly the right to a fair trial, by promoting efficiency and fairness in the use of foreign evidence in legal proceedings.

Key Provisions

The Foreign Evidence (Application of Amendments) Regulations 2021 (the Regulations) primarily serve to update and replace the previous Foreign Evidence (Application of Amendments) Regulations 2011, which were set to expire on 1 October 2021. These Regulations give effect to the amendments made by the Foreign Evidence Amendment Act 2010 (the Amendment Act) to the Foreign Evidence Act 1994 (the Act). The key amendments involve clarifying the application of the Act to non-conviction based proceeds of crime matters (section 20), allowing testimony to be taken under an obligation to tell the truth imposed by a foreign country's law (section 22), modernising references to audio and video tape (section 23), and streamlining the process for adducing foreign business records (section 24). The Regulations impose specific obligations and requirements on the states and territories listed in section 6. These obligations include applying the amendments to criminal proceedings, related civil proceedings, and proceeds of crime proceedings as per the provisions of the Amendment Act. This means that Western Australia, South Australia, Tasmania, the Australian Capital Territory, and the Northern Territory must incorporate the amendments into their respective court proceedings, ensuring that the new evidentiary requirements are followed. This inclusion allows for a more streamlined process for obtaining and using foreign material in these jurisdictions, provided they adhere to the stipulated regulations. The Regulations do not specify any new offences, penalties, or consequences for breaches within their own text. However, they operate under the broader framework of the Foreign Evidence Act 1994, which includes various penalties for misuse or improper handling of foreign evidence. The Foreign Evidence Act 1994 may impose penalties for actions such as providing false evidence, tampering with evidence, or failing to comply with the Act's requirements. While the specific penalties are detailed within the Foreign Evidence Act 1994, the Regulations ensure that the amendments they incorporate are enforceable within the specified jurisdictions, thus reinforcing the integrity of legal proceedings involving foreign evidence.

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