Foreign Evidence (Foreign Material - Criminal and Related Civil Proceedings) Amendment Regulations 2004 (No. 1) 2004 No. 63
EXPLANATORY STATEMENT
Statutory Rules 2004 No. 63
Minute No. of 2004 - Minister for Justice and Customs
Subject - Foreign Evidence Act 1994
Foreign Evidence (Foreign Material - Criminal and Related Civil Proceedings) Amendment Regulations 2004 (No. 1)
Section 46 of the Foreign Evidence Act 1994 (the Act) provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed or necessary or convenient to be prescribed by carrying out or giving effect to the Act.
A) The object of the Act is to regulate specified evidentiary matters involving overseas jurisdictions. Those matters include the examination of witnesses abroad, and the taking and use of evidence.
Subsection 20(2) of the Act provides that foreign material may be used in any court of a State or Territory specified in the regulations, and, specifically, a criminal proceeding for an offence against the law of that State or Territory (paragraph 20(2)(x)), or a civil proceeding of a kind specified in the regulations in respect of that State or Territory (paragraph 20(c)(b)).
Subregulation 4(2) of the Foreign Evidence (Foreign Material - Criminal and Related Civil Proceedings) Regulations (the Principal Regulations) provides that related civil proceedings are specified for each State and Territory in the Schedule to the Principal Regulations.
The Crimes (Confiscation of Profits) Act 1988 (WA) (the C(CP)A) is currently prescribed as an Act under which proceedings are specified for the purposes of paragraph 20(2)(b) of the Act. The C(CP)A was superseded on 1 January 2001 by the Criminal Property Confiscation Act 2000 (WA) (CPCA).
The Principal Regulations now include a reference to the CPCA. This allows foreign evidence to be used in civil proceedings under the CPCA.
B) The Regulations also update the citation of the Principal Regulations in line with current drafting practice.
The Attorney General for Western Australia, the Honourable Jim McGinty MLA, has indicated that this amendment is critical to pending civil proceedings under the CPCA.
The Act specifies no conditions that needed to be met before the power to make the Regulations could be exercised.
The Regulations commence on the date of their ratification in the Gazette.
Authority: Section 46 of the Foreign Evidence Act 1994
Overview
The Foreign Evidence (Foreign Material - Criminal and Related Civil Proceedings) Amendment Regulations 2004 (No. 1) were enacted in 2004 by the Minister for Justice and Customs, pursuant to the authority granted under Section 46 of the Foreign Evidence Act 1994. This legislative amendment was introduced to address the need for updating the regulations concerning the use of foreign evidence in both criminal and related civil proceedings in Australia. Specifically, the amendments were necessary to incorporate changes in Western Australian legislation, replacing the Crimes (Confiscation of Profits) Act 1988 with the Criminal Property Confiscation Act 2000. The policy objective behind these amendments was to ensure that the regulations remain consistent with current legislative frameworks and to facilitate the use of foreign evidence in civil proceedings under the updated Act, as highlighted by the Attorney General for Western Australia. The Regulations also aligned the citation of the Principal Regulations with contemporary drafting practices.
Scope and Application
The Foreign Evidence (Foreign Material - Criminal and Related Civil Proceedings) Amendment Regulations 2004 (No. 1) pertains to the regulation of evidentiary matters involving overseas jurisdictions as outlined in the Foreign Evidence Act 1994. The Act is intended to govern the examination of witnesses abroad and the use of evidence in criminal and related civil proceedings. These regulations apply to any court of a State or Territory specified in the regulations, allowing the use of foreign material in criminal proceedings for offences against the law of that State or Territory, as well as in civil proceedings specified for each State and Territory in the regulations. The Regulations have been amended to include a reference to the Criminal Property Confiscation Act 2000 (WA), enabling the use of foreign evidence in civil proceedings under this Act. The scope of the Act extends to the Commonwealth and the states and territories of Australia, with specific regulations tailored to each jurisdiction. The Act does not explicitly state any exclusions or thresholds, but it does allow for the application of subordinate instruments to further define the scope and application of the regulations.
Key Provisions
The Foreign Evidence (Foreign Material - Criminal and Related Civil Proceedings) Amendment Regulations 2004 (No. 1) primarily amend the Foreign Evidence (Foreign Material - Criminal and Related Civil Proceedings) Regulations to update the citation of the regulations and to allow for the use of foreign evidence in civil proceedings under the Criminal Property Confiscation Act 2000 (WA). Specifically, Section 20(2) of the Foreign Evidence Act 1994 is updated to include a reference to the Criminal Property Confiscation Act 2000 (WA) as an Act under which proceedings are specified for the purposes of allowing the use of foreign evidence in related civil proceedings. This change is intended to ensure that foreign evidence can be used in civil proceedings related to criminal property confiscation as per the newer act, which superseded the Crimes (Confiscation of Profits) Act 1988 (WA) on 1 January 2001.
The obligations imposed by these regulations on parties or entities governed by them include ensuring that foreign evidence is admissible in specified civil proceedings under the Criminal Property Confiscation Act 2000 (WA). This means that the regulations require compliance with the updated legal framework that allows for the use of foreign evidence in such proceedings. Additionally, entities involved in these proceedings must ensure that the foreign evidence provided meets the standards and requirements set forth in the regulations and the underlying act. The regulations also require that any foreign evidence presented is properly authenticated and verified to ensure its admissibility in court.
The Foreign Evidence Act 1994 itself does not explicitly outline specific offences, penalties, or consequences for breaches of the regulations. However, the underlying legal principles governing the admissibility and use of evidence in Australian courts would apply. Any misuse or improper handling of foreign evidence could potentially lead to challenges in court regarding its admissibility or reliability. Furthermore, any failure to comply with the regulations could result in legal disputes or challenges to the evidence presented, which could impact the outcomes of criminal or related civil proceedings. While the regulations do not specify maximum penalties, any legal proceedings resulting from non-compliance could lead to adverse outcomes for the parties involved.