{"id":"BILL-WA-D7B5E303FE14B96148258C7B000E0124","name":"Evidence Bill 2025","slug":"evidence-bill-2025","collection":"bill","jurisdiction":"wa","status":"in_force","isInForce":true,"actNumber":null,"makingDate":"2025-04-30","administeringDepartment":null,"currentVersion":{"id":446173,"registerId":"BILL-WA-D7B5E303FE14B96148258C7B000E0124:current","compilationNumber":null,"startDate":"2025-04-30","status":"in_force","reasons":null,"registeredAt":"2026-05-08T16:47:46.250Z"},"sections":[{"sectionNumber":"retrieval-0001","sectionType":"document_chunk","heading":"Document excerpt 1","content":"# Evidence Bill 2025\n\n9—1 page i\nWestern Australia\nEvidence Bill 2025\nContents\nPart 1 — Preliminary\nDivision 1 — Introduction\n1. Short title 2\n2. Commencement 2\nDivision 2 — Interpretation\n3. Terms used 3\n4. References to business 14\n5. Examination in chief, cross-examination and\nre-examination 15\n6. References to documents 16\n7. Representations made in documents 17\n8. References to availability of documents and things 17\n9. References to availability to give evidence 18\n10. References to laws 19\n11. References to criminal proceedings 20\n12. References to civil penalties 20\n13. References to offspring and parents 20\nDivision 3 — Application of Act\n14. Application of Act 21\n15. Extended application of certain provisions 21\n16. Electronic processes facilitation 22\n17. Act binds Crown 22\n18. Operation of other Acts 22\n19. Application of common law and equity 22\n20. Parliamentary privilege preserved 23\n21. General powers of court 23\n\nEvidence Bill 2025\nContents\npage ii\nPart 2 — Adducing evidence\nDivision 1 — Witnesses\nSubdivision 1 — Competence and compellability of\nwitnesses\n22. Competence and compellability 24\n23. Competence: lack of capacity 24\n24. Compellability: reduced capacity 25\n25. Compellability: foreign sovereign and others 26\n26. Competence and compellability: judges and jurors 27\n27. Competence and compellability: accused and\nco-accused in criminal proceeding 27\n28. Compellability: spouses and others in criminal\nproceeding 28\n29. Compellability: witnesses in public revenue cases 29\n30. Comment on decision not to give evidence in\ncriminal proceeding 30\nSubdivision 2 — Oaths and affirmations\n31. Sworn evidence of witnesses to be on oath or\naffirmation 31\n32. Interpreters to act on oath or affirmation 32\n33. Choice of oath or affirmation 32\n34. Application of Oaths, Affidavits and Statutory\nDeclarations Act 2005 33\nSubdivision 3 — General rules about giving evidence\n35. Court’s control over questioning of witnesses 33\n36. Parties may question witnesses 34\n37. Order of examination in chief, cross-examination\nand re-examination 34\n38. Manner and form of questioning witnesses and\ntheir responses 34\n39. Interpreters 35\n40. Witnesses who cannot hear adequately or speak\nadequately 35\n41. Attempts to revive memory in court 35\n42. Evidence given by police officers 36\n43. Attempts to revive memory out of court 37\n44. Effect of calling for production of documents 37\n45. Person may be examined without subpoena or\nother process 38\n\nEvidence Bill 2025\nContents\npage iii\nSubdivision 4 — Examination in chief and\nre-examination\n46. Leading questions not to be asked 39\n47. Unfavourable witnesses 40\n48. Limits on re-examination 41\nSubdivision 5 — Cross-examination\n49. Witness called in error not to be cross-examined 41\n50. Improper questions 42\n51. Leading questions may be asked 43\n52. Prior inconsistent statements of witnesses 44\n53. Previous representations of other persons 45\n54. Production of documents 46\n55. Leave to recall witnesses 47\n56. Cross-examination of witness by unrepresented\nparty 47\n57. No direct cross-examination of certain witnesses\nby unrepresented accused 49\nDivision 2 — Documents\n58. Terms used 51\n59. Proof of contents of documents 51\n60. Documents in foreign countries 53\n61. Original document rule abolished 54\n62. Copies of dutiable instruments 54\nDivision 3 — Other ways of adducing evidence\n63. Adducing of other evidence not affected 54\n64. Demonstrations, experiments and inspections 55\n65. Demonstrations, experiments and inspections to be\nevidence 56\n66. Charts, summaries and explanatory documents 56\n67. Court may require voluminous or complex\nevidence to be given in another form 56\nPart 3 — Admissibility of evidence\nDivision 1 — Relevance\n68. Relevant evidence 58\n69. Relevant evidence to be admissible 58\n70. Provisional relevance 58\n71. Inferences as to relevance 59\n\nEvidence Bill 2025\nContents\npage iv\nDivision 2 — Hearsay\nSubdivision 1 — Hearsay rule\n72. Hearsay rule: exclusion of hearsay evidence 59\n73. Exception: evidence relevant for non-hearsay\npurpose 60\n74. Exceptions to hearsay rule dependent on\ncompetency 61\nSubdivision 2 — First-hand hearsay\n75. Restriction to first-hand hearsay 61\n76. Exception: civil proceeding if maker not available 62\n77. Exception: civil proceeding if maker available 62\n78. Exception: criminal proceeding if maker not\navailable 63\n79. Exception: criminal proceeding if maker available 66\n80. Exception: particular contemporaneous statements\nabout person 67\n81. Notice to be given 67\n82. Objections to tender of hearsay evidence in civil\nproceeding if maker available 68\nSubdivision 3 — Other exceptions to hearsay rule\n83. Exception: business records 69\n84. Exception: content of tags, labels and writing 70\n85. Exception: electronic communication 71\n86. Exception: Aboriginal and Torres Strait Islander\ntraditional laws and customs 71\n87. Exception: reputation as to relationships and age 71\n88. Exception: reputation of public or general rights 72\n89. Exception: interlocutory proceedings 72\nDivision 3 — Opinion\n90. Opinion rule 73\n91. Exception: evidence relevant otherwise than as\nopinion evidence 73\n92. Exception: lay opinions 74\n93. Exception: Aboriginal and Torres Strait Islander\ntraditional laws and customs 74\n94. Exception: opinions based on specialised\nknowledge 74\n95. Ultimate issue and common knowledge rules\nabolished 75\n\nEvidence Bill 2025\nContents\npage v\nDivision 4 — Admissions\n96. Hearsay and opinion rules: exception for\nadmissions and related representations 75\n97. Exclusion of evidence of admissions that is not\nfirst-hand 76\n98. Exclusion of evidence of admissions as against\nthird parties 76\n99. Exclusion of admissions influenced by violence\nand certain other conduct 77\n100. Criminal proceedings: reliability of admissions by\naccused 77\n101. Criminal proceedings: exclusion of records of oral\nquestioning 78\n102. Admissions made with authority 79\n103. Proof of admissions 80\n104. Criminal proceedings: evidence of silence 80\n105. Criminal proceedings: discretion to exclude\nadmissions 81\n106. Criminal investigation rules about admissions not\naffected 81\nDivision 5 — Evidence of judgments and\nconvictions\n107. Exclusion of evidence of judgments and\nconvictions 81\n108. Exceptions 82\n109. Savings 83\nDivision 6 — Tendency and coincidence\n110. Application of Division 83\n111. Use of evidence for other purposes 84\n112. Failure to act 84\n113. Tendency rule 84\n114. Admissibility of tendency evidence in proceeding\ninvolving child sexual offence 85\n115. Coincidence rule 88\n116. Requirements for notices 89\n117. Court may dispense with notice requirements 89\n118. Further restrictions on tendency evidence and\ncoincidence evidence adduced by prosecution 90\n\nEvidence Bill 2025\nContents\npage vi\nDivision 7 — Credibility\nSubdivision 1 — Preliminary\n119. Term used: credibility evidence 91\nSubdivision 2 — Credibility of witnesses\n120. Credibility rule 91\n121. Exception: cross-examination as to credibility 91\n122. Further protections: cross-examination of accused 92\n123. Exception: rebutting denials by other evidence 93\n124. Exception: re-establishing credibility 94\nSubdivision 3 — Credibility of persons who are not\nwitnesses\n125. Admissibility of evidence of credibility of person\nwho has made previous representation 95\n126. Further protections: previous representations of\naccused who is not witness 95\nSubdivision 4 — Persons with specialised knowledge\n127. Exception: evidence of persons with specialised\nknowledge 97\nDivision 8 — Character\n128. Application of Division 98\n129. Evidence about character of accused 98\n130. Evidence about character of co-accused 98\n131. Leave required to cross-examine about character of\naccused 99\nDivision 9 — Identification evidence\n132. Application of Division 99\n133. Terms used 99\n134. Exclusion of certain police-assisted identification\nevidence 100\n135. Directions to jury 101\nDivision 10 — Evidence of family violence\nSubdivision 1 — Preliminary\n136. Terms used 102\n137. What may constitute evidence of family violence 102\n\nEvidence Bill 2025\nContents\npage vii\nSubdivision 2 — Admissibility of evidence of family\nviolence\n138. Expert evidence of family violence 104\n139. Evidence of family violence: general provision 105\n140. Evidence of family violence: self-defence 105\nSubdivision 3 — Directions relating to family\nviolence in criminal proceedings\n141. Request for direction on family violence:\nself-defence 105\n142. Request for direction on family violence: general 106\n143. Content of direction on family violence:\nself-defence 107\n144. Content of direction on family violence: general 107\n145. Application to criminal proceeding without jury 110\n146. Other directions may be given 110\nSubdivision 4 — Application to civil proceedings\n147. Court may take into account family violence\ndirection matters 110\nPart 4 — Privileges\nDivision 1 — Client legal privilege\n148. Terms used 112\n149. Legal advice 114\n150. Litigation 114\n151. Unrepresented parties 115\n152. Loss of client legal privilege: generally 116\n153. Loss of client legal privilege: consent and related\nmatters 116\n154. Loss of client legal privilege: accused 118\n155. Loss of client legal privilege: joint clients 118\n156. Loss of client legal privilege: misconduct 119\n157. Loss of client legal privilege: related\ncommunications and documents 119\nDivision 2 — Professional confidential\nrelationship privilege\n158. Terms used 120\n159. Exclusion of evidence of protected confidences 121\n160. Loss of professional confidential relationship\nprivilege: consent 123\n\nEvidence Bill 2025\nContents\npage viii\n161. Loss of professional confidential relationship\nprivilege: misconduct 123\n162. Ancillary orders 124\n163. Relationship between this Division and other\nprivileges 124\nDivision 3 — Counselling communications\nrelating to sexual offences\n164. Terms used 124\n165. Counselling communications that are protected\ncommunications 125\n166. Protected communications not to be disclosed 127\n167. Application for leave 128\n168. Hearing of application 129\n169. Test to be applied by court 130\n170. Establishing legitimate forensic purpose 130\n171. Public interest test 132\n172. Effect of consent 133\n173. Loss of privilege: misconduct 133\n174. Ancillary orders 134\n175. Application of other laws 134\n176. Application to civil proceedings 135\n177. Regulations 135\nDivision 4 — Journalist privilege\n178. Application of Division 135\n179. Terms used 136\n180. Journalist privilege relating to identity of informant 137\n181. Exclusion of journalist privilege: public interest\ntest 138\n182. Special consideration: misconduct 139\n183. Application of journalist privilege to preliminary\nproceedings 141\n184. Ancillary orders 142\nDivision 5 — Self-incrimination\n185. Terms used 142\n186. Privilege in respect of self-incrimination in other\nproceedings 143\n187. Effect of evidence certificate 144\n188. Privilege in respect of self-incrimination:\ndisclosure orders 146\n\nEvidence Bill 2025\nContents\npage ix\n189. Effect of disclosure certificate 147\n190. Court may restrict publication of evidence 148\n191. Self-incrimination: witnesses in public revenue\nproceedings 149\nDivision 6 — Evidence excluded in the public\ninterest\n192. Exclusion of evidence of reasons for judicial and\nother decisions 150\n193. Exclusion of evidence of matters of state 151\n194. Exclusion of evidence of settlement negotiations 153\nDivision 7 — General\n195. Court to inform of rights to make applications and\nobjections 156\n196. Court may inspect documents 156\n197. Inadmissibility of evidence that must not be\nadduced or given 156\n198. Derogation of privilege in civil proceedings 157\n199. No privilege against self-incrimination for bodies\ncorporate 158\n200. No confessional privilege in proceedings relating\nto child sexual offences or sexual abuse 158\nPart 5 — Exclusion of evidence\n201. General discretion to exclude evidence 160\n202. General discretion to limit use of evidence 160\n203. Exclusion of prejudicial evidence in criminal\nproceeding 160\n204. Exclusion of improperly or illegally obtained\nevidence 160\n205. Cautioning of persons 162\n206. Exclusion of certain evidence relating to\ncomplainant or witness 164\nPart 6 — Special arrangements for\ntaking evidence\nDivision 1 — Use of video links and audio links\nby courts and recognised courts\n207. Terms used 166\n\nEvidence Bill 2025\nContents\npage x\n208. Court may take evidence by video link or audio\nlink 166\n209. Counsel entitled to practise 167\n210. Recognised court may take evidence or receive\nsubmission in this State 168\n211. Privileges, protection and immunity of participants\nin proceeding in recognised court 169\n212. Recognised court may administer oath in this State 170\n213. Assistance to recognised court 170\n214. Contempt of recognised court 171\n215. Operation of other laws 171\nDivision 2 — Examination of witnesses outside\nthe State\n216. Terms used 172\n217. Court may make extra-territorial examination order 173\n218. Admission of evidence taken under extra-territorial\nexamination order 174\n219. Operation of other laws 176\n220. Regulations and rules of court 176\nDivision 3 — Assistance to other Australian\ncourts and foreign courts\n221. Terms used 176\n222. Application to Supreme Court for assistance 177\n223. Supreme Court may make order to assist in\nobtaining evidence 177\n224. Privilege of witnesses 179\n225. Rules of court 180\n226. Offence of giving false testimony 180\n227. Operation of other laws 181\nPart 7 — Witness assistance\nmeasures\nDivision 1 — Preliminary\n228. Terms used 182\n229. Witnesses who must be treated as special witness 184\n230. Witnesses who may be declared to be special\nwitness 185\n\nEvidence Bill 2025\nContents\npage xi\nDivision 2 — Support and communication\nassistance for children and special\nwitnesses\n231. Use of support person 186\n232. Use of support animal 186\n233. Use of communicator 187\nDivision 3 — Admission of out-of-court\nrepresentations\n234. Application of Division 188\n235. Term used: out-of-court representation 188\n236. Admission of out-of-court representations 189\n237. Application of rules of evidence 191\nDivision 4 — Admission of recorded statements\n238. Application of Division 191\n239. Terms used 192\n240. Recorded statement admissible as evidence in chief 192\n241. Statement admissibility regulations 194\n242. Statement must be provided to accused 194\n243. Accused must be given opportunity to\ncross-examine complainant 195\n244. Application of rules of evidence 196\n245. Presentation of recorded statement 196\n246. Further evidence 197\n247. Presence of complainant not required during\npresentation of statement 197\n248. Warning and comments to jury 197\n249. Other regulations 198\nDivision 5 — Admission of recorded interviews\n250. Application of Division 199\n251. Terms used 199\n252. Recorded interview admissible as evidence in chief 199\n253. Regulations may specify admissibility\nrequirements for interviews 201\n254. Interview must be provided to accused 202\n255. Application of rules of evidence 202\n256. Presentation of recorded interview 203\n257. Further evidence 203\n258. Presence of person interviewed not required during\npresentation of interview 204\n\nEvidence Bill 2025\nContents\npage xii\n259. Warning and comments to jury 204\n260. Other regulations 205\nDivision 6 — Pre-recording procedure\n261. Terms used 206\n262. General provisions about pre-recording orders 206\n263. Circumstances in which pre-recording order may\nbe made 207\n264. Conduct of special hearing 209\n265. Restrictions on persons who may be present at\nspecial hearing 209\n266. Alternative arrangements for attendance at special\nhearing 210\n267. Use of recorded statement or interview at special\nhearing 211\n268. Admissibility of recording of evidence taken at\nspecial hearing 211\n269. Presentation of recording of evidence 212\n270. Presence of witness not required during\npresentation of recording of evidence 213\n271. Witness may be required to give further evidence 213\n272. Identification of accused 214\n273. Warning to jury 215\nDivision 7 — Video link separation and\nscreening procedures\n274. Application of Division 215\n275. Terms used 215\n276. General provisions about video link separation\norders 215\n277. Circumstances in which video link separation\nprocedure is mandatory 217\n278. Other circumstances in which video link separation\nprocedure may be used 218\n279. Access to legal counsel 219\n280. Evidence of witness to be recorded 219\n281. Use of screening procedure 220\n282. Identification of accused 220\n283. Instruction to jury 221\n\nEvidence Bill 2025\nContents\npage xiii\nDivision 8 — Witness intermediaries\n284. Terms used 221\n285. Establishment of witness intermediary service 221\n286. Proceedings for which witness intermediary\nservice is available 222\n287. General functions of witness intermediary 222\n288. Specific functions in proceedings 223\n289. Assessment of whether witness requires witness\nintermediary 224\n290. Witnesses who are eligible for witness assessment 224\n291. Appointment of witness intermediary in\nproceeding 225\n292. Witness who declines witness assessment or\nservices of witness intermediary 226\nDivision 9 — Communication directions\n293. Term used: communication directions 227\n294. Communication directions relating to witnesses 227\n295. Ground rules hearing 228\n296. Timing of ground rules hearing 229\n297. Conduct of ground rules hearing 229\n298. Other powers of court not affected 229\nDivision 10 — Access to and use of protected\nrecordings\n299. Terms used 230\n300. Possessing or supplying protected recordings 230\n301. Altering or destroying original protected recording 232\n302. Altering copy of protected recording 232\n303. Copying protected recording 232\n304. Playing protected recordings 233\n305. Protected recordings may be played for\ninstructional purposes 234\n306. Publication of protected recordings prohibited 235\n307. Playing or tendering altered versions of protected\nrecordings in proceedings 235\n308. Court may give directions about protected\nrecordings 236","sortOrder":0},{"sectionNumber":"retrieval-0002","sectionType":"document_chunk","heading":"Document excerpt 2","content":"Evidence Bill 2025\nContents\npage xiv\nDivision 11 — Miscellaneous\n309. Hearing to consider orders that should be made 236\n310. Disclosure of protected communications in\nconnection with support measures 237\n311. Dispensing with special procedure for giving\nevidence 238\nPart 8 — Proof\nDivision 1 — Standard of proof\n312. Civil proceeding: standard of proof 240\n313. Criminal proceeding: standard of proof 240\n314. Admissibility of evidence: standard of proof 240\nDivision 2 — Corroboration\n315. Corroboration not required 241\nDivision 3 — Warnings and information\n316. Term used: delay 242\n317. Unreliable evidence 242\n318. Warnings about evidence given by children 243\n319. Warnings about delays causing forensic\ndisadvantage 244\n320. Prohibited directions about delays in complaint\nabout sexual and family violence offences 245\n321. Required direction for delays in complaint about\nsexual and family violence offences 246\nDivision 4 — Requests between parties relating\nto evidence\n322. Application of Division 248\n323. Term used: request 248\n324. Requests may be made about certain matters 249\n325. Time limits for making requests 249\n326. Failure or refusal to comply with requests 250\nPart 9 — Judicial notice and\nfacilitation of proof\nDivision 1 — Matters of common knowledge\n327. Judicial notice to be taken of matters of common\nknowledge 253\n\nEvidence Bill 2025\nContents\npage xv\nDivision 2 — Proof of laws\n328. Judicial notice to be taken of Australian laws 254\n329. Proof of laws of foreign countries 255\n330. Evidence of law reports of foreign countries 255\n331. Questions of foreign law to be decided by judge 256\nDivision 3 — Proof of public documents and\nother official matters\n332. Presumption as to authenticity of official\npublications 257\n333. Presumption as to regularity of acts notified in\nofficial publications 257\n334. Presumption as to authenticity of Parliamentary\ndocuments 258\n335. Presumption as to authenticity of Commonwealth\nrecords and public documents 259\n336. Presumption as to authenticity of copies, extracts\nand summaries of public documents 260\n337. Presumption as to authenticity of official seals and\nsignatures 261\n338. Proof of public documents of other States or\nTerritories 262\n339. Proof of public documents relating to judgments,\nacts and processes of courts 263\n340. Proof of official statistics 264\nDivision 4 — Proof of other matters relating to\ndocuments and things\n341. Presumption relating to documents and things\nproduced by processes and devices 264\n342. Presumption relating to business documents\nproduced by processes and devices 265\n343. Findings about accuracy of documents produced\nby devices and processes 266\n344. Presumption as to documents attested by justices,\nlawyers and notaries public 267\n345. Testimony of attesting witness not required 267\n346. Presumption as to documents produced from\nproper custody 268\n347. Proof of foreign documents admissible in foreign\ncountries 268\n\nEvidence Bill 2025\nContents\npage xvi\nDivision 5 — Proof of communications\n348. Presumption relating to receipt of postal articles 269\n349. Presumptions relating to electronic\ncommunications 269\n350. Presumption relating to receipt of lettergrams and\ntelegrams 270\nDivision 6 — Proof of matters relating to\ndocuments or things by affidavit or\nwritten statement\n351. Application of Division 271\n352. Persons who may give evidence 272\n353. Form in which evidence may be given 273\n354. Evidence based on knowledge, belief or\ninformation 273\n355. Notification of other parties 274\nDivision 7 — Proof of other matters by\ncertificate or affidavit\n356. Certificate of expert evidence 274\n357. Certificate evidence of convictions, acquittals,\nsentences and other court matters 275\n358. Affidavit evidence of identity of convicted persons\nby State and Territory police 277\n359. Affidavit evidence of identity of convicted persons\nby AFP employees and special members 277\n360. Forensic biology certificates 278\n361. Procedure for using forensic biology certificates 280\n362. Appointment of persons as forensic scientists for\npurposes of s. 360 281\n363. Proof of service of statutory notifications, notices,\norders and directions 282\nDivision 8 — Proof of particular matters in\ncriminal proceedings\n364. Proof of intention to injure, deceive or defraud 282\n365. Evidence of stealing or receiving property from\naircraft, vehicle, vessel or related premises 282\n366. Proof of stealing money 284\n\nEvidence Bill 2025\nContents\npage xvii\nPart 10 — Miscellaneous\n367. Inferences 285\n368. Accused may admit matters and give consents 285\n369. Impounding documents 285\n370. Preliminary questions 286\n371. Waiver of rules of evidence 288\n372. Agreements as to facts 289\n373. Leave, permission or direction may be subject to\nconditions 289\n374. Advance rulings and findings 290\n375. Additional powers of court in relation to discovery\nand disclosure 290\n376. Additional power to make rules of court 291\n377. Witness who fails to attend proceeding 292\n378. Payments to witnesses and others for eligible\nservice 293\n379. Recovery of amounts payable 295\n380. Prohibited question not to be published 296\n381. Identity of certain witnesses not to be published 296\n382. Customs prosecutions 298\n383. Regulations 299\n384. Review of Act 299\n385. Review of provisions relating to recorded\nstatements 300\nPart 11 — Repeal, savings and\ntransitional provisions\nDivision 1 — Repeals\n386. Evidence Act 1906 repealed 301\n387. Regulations under Evidence Act 1906 repealed 301\nDivision 2 — Savings and transitional\nprovisions\n388. Terms used 301\n389. Application of Act to proceedings 302\n390. Documents served or given 303\n391. Documents and other things examined, copied or\nviewed 303\n392. Things done between parties 304\n\nEvidence Bill 2025\nContents\npage xviii\n393. Identification evidence 304\n394. Privileges 304\n395. Cautioning of persons 305\n396. Out-of-court representations 305\n397. Recorded interviews 305\n398. Visual recordings of evidence 306\n399. Restrictions on use of audio evidence under former\nAct 307\n400. Restrictions on use of former Act recordings 307\n401. Publication of former Act recordings prohibited 309\n402. Playing or tendering altered recording in\nproceeding 309\n403. Power to give directions about former Act\nrecordings 310\n404. Use of Justice documents 310\n405. Facilitation of proof of documents 310\n406. Admission of police affidavits 310\n407. DNA certificates given before commencement 310\n408. Restrictions on publishing names of complainants 310\n409. Continuation of orders, directions, leave and other\nthings done under former Act 311\n410. Saving of self-incrimination certificates given\nunder former Act 311\n411. Construction of references 311\n412. Transitional regulations 312\nPart 12 — Consequential\namendments to other Acts\nDivision 1 — Aquatic Resources Management\nAct 2016 amended\n413. Act amended 314\n414. Section 240 amended 314\nDivision 2 — Australia and New Zealand\nBanking Group Act 1970 amended\n415. Act amended 314\n416. Section 10 deleted 314\n417. Section 18 deleted 314\n\nEvidence Bill 2025\nContents\npage xix\nDivision 3 — Australia and New Zealand\nBanking Group Limited (NMRB) Act 1991\namended\n418. Act amended 315\n419. Section 10 amended 315\n420. Section 18 amended 315\n421. Section 19 amended 315\nDivision 4 — Australia and New Zealand\nBanking Group Limited (Town & Country)\nAct 1995 amended\n422. Act amended 315\n423. Section 11 amended 315\nDivision 5 — Bank of Western Australia\nAct 1995 amended\n424. Act amended 315\n425. Section 33 amended 315\nDivision 6 — Child Care Services Act 2007\namended\n426. Act amended 316\n427. Section 44 amended 316\n428. Section 46A inserted 316\n46A. Interaction with protections in Evidence\nAct 2025 316\nDivision 7 — Children and Community Services\nAct 2004 amended\n429. Act amended 317\n430. Section 149 amended 318\n431. Section 238A inserted 318\n238A. Interaction with protections in Evidence\nAct 2025 318\n432. Section 239 amended 319\nDivision 8 — Control of Vehicles (Off-road\nAreas) Act 1978 amended\n433. Act amended 319\n434. Section 28A amended 319\nDivision 9 — Corruption, Crime and Misconduct\nAct 2003 amended\n435. Act amended 320\n436. Section 3 amended 320\n\nEvidence Bill 2025\nContents\npage xx\n437. Section 94 amended 320\n438. Section 145 amended 320\nDivision 10 — The Criminal Code amended\n439. Act amended 321\n440. Sections 540 and 541 deleted 321\nDivision 11 — Criminal Investigation Act 2006\namended\n441. Act amended 321\n442. Section 48 amended 321\n443. Section 118 amended 321\n444. Part 11A inserted 322\nPart 11A — Creating recorded statements for use as\nevidence\n124A. Terms used 322\n124B. Police officer may create recorded\nstatement for use as evidence 322\n124C. Consent of person making statement 323\n124D. Recordings to be retained by police 323\n445. Section 138 amended 324\n446. Section 154 amended 324\n447. Section 155 deleted 324\nDivision 12 — Criminal Procedure Act 2004\namended\n448. Act amended 325\n449. Section 42 amended 325\n450. Section 64 amended 325\n451. Section 88 amended 325\n452. Section 98 amended 326\n453. Section 109 amended 326\n454. Section 119 amended 326\n455. Section 137A amended 326\n456. Section 137B inserted 327\n137B. Restrictions on disclosure of recorded\nevidence 327\n457. Section 144 amended 328\n458. Section 168 amended 328\n459. Section 171 amended 329\n460. Section 172 amended 329\n461. Schedule 3 clause 2 replaced 330\n2. Evidence Act 2025 not affected 330\n\nEvidence Bill 2025\nContents\npage xxi\n462. Schedule 3 clause 6 amended 330\n463. Schedule 3 clause 7 amended 330\n464. Schedule 3 clause 8 inserted 331\n8. Access of accused to some recorded\nevidence restricted 331\nDivision 13 — Criminal Property Confiscation\nAct 2000 amended\n465. Act amended 332\n466. Sections 109A to 109E inserted 332\n109A. Terms used 332\n109B. Admissibility of business records 334\n109C. Weight of evidence admitted under\ns. 109B 335\n109D. Evidence as to credibility of qualified\npersons 336\n109E. Dispute as to happening of event 337\n467. Glossary clause 1 amended 338\nDivision 14 — High Risk Serious Offenders\nAct 2020 amended\n468. Act amended 338\n469. Section 39 amended 338\n470. Section 69 amended 339\nDivision 15 — Juries Act 1957 amended\n471. Act amended 339\n472. Part VIII heading amended 339\n473. Section 51 amended 339\nDivision 16 — Licensed Surveyors Act 1909\namended\n474. Act amended 340\n475. Section 8B amended 340\n476. Third Schedule amended 340\nDivision 17 — Privacy and Responsible\nInformation Sharing Act 2024 amended\n477. Act amended 341\n478. Section 158 amended 341\nDivision 18 — Restraining Orders Act 1997\namended\n479. Act amended 341\n480. Section 53B replaced 341\n53B. Evidence of children 341\n\nEvidence Bill 2025\nContents\npage xxii\nDivision 19 — Spent Convictions Act 1988\namended\n481. Act amended 342\n482. Section 14 replaced 342\n14. Division 4 does not apply to proceedings\nin which laws of evidence apply 342\n14A. Division 4 does not affect Commissioner\nof Police acting under s. 7 343\nDivision 20 — Supreme Court Act 1935 amended\n483. Act amended 343\n484. Section 42 amended 343\n485. Section 172 deleted 343\nDivision 21 — The Commercial Bank of\nAustralia Limited (Merger) Act 1982\namended\n486. Act amended 343\n487. Section 11 amended 343\nDivision 22 — The Commercial Banking\nCompany of Sydney Limited (Merger)\nAct 1982 amended\n488. Act amended 344\n489. Section 10 amended 344\nDivision 23 — Westpac Banking Corporation\n(Challenge Bank) Act 1996 amended\n490. Act amended 344\n491. Section 15 amended 344\nDivision 24 — Other Acts amended\n492. Various references to “Evidence Act 1906”\namended 344\nDefined terms\n\npage 1\nWestern Australia\nLEGISLATIVE ASSEMBLY\nEvidence Bill 2025\nA Bill for\nAn Act —\n• to provide for the law of evidence; and\n• to repeal the Evidence Act 1906 and regulations made under that\nAct; and\n• to make consequential amendments to various Acts.\nThe Parliament of Western Australia enacts as follows:\n\nEvidence Bill 2025\nPart 1 Preliminary\nDivision 1 Introduction\ns. 1\npage 2\nPart 1 — Preliminary1\nDivision 1 — Introduction2\n1. Short title3\nThis is the Evidence Act 2025.4\n2. Commencement5\nThis Act comes into operation as follows —6\n(a) Part 1 — on the day on which this Act receives the7\nRoyal Assent;8\n(b) Part 12 Division 1 —9\n(i) if the Aquatic Resources Management Act 201610\nsection 240 comes into operation on or before the11\nday fixed under paragraph (d) for section 386 —12\non the day fixed under paragraph (d) for13\nsection 386; or14\n(ii) otherwise — immediately after the Aquatic15\nResources Management Act 2016 section 24016\ncomes into operation;17\n(c) Part 12 Division 17 —18\n(i) if the Privacy and Responsible Information19\nSharing Act 2024 section 158 comes into20\noperation on or before the day fixed under21\nparagraph (d) for section 386 — on the day fixed22\nunder paragraph (d) for section 386; or23\n(ii) otherwise — immediately after the Privacy and24\nResponsible Information Sharing Act 202425\nsection 158 comes into operation;26\n(d) the rest of the Act — on a day fixed by proclamation,27\nand different days may be fixed for different provisions.28\n\nEvidence Bill 2025\nPreliminary Part 1\nInterpretation Division 2\ns. 3\npage 3\nDivision 2 — Interpretation1\n3. Terms used2\n(1) In this Act —3\naccused means a person alleged in a prosecution notice or4\nindictment to have committed an offence;5\nadmission means a previous representation that is —6\n(a) made by a person who is or becomes a party to a7\nproceeding (including an accused in a criminal8\nproceeding); and9\n(b) adverse to the person’s interest in the outcome of the10\nproceeding;11\nasserted fact has the meaning given in section 72(1);12\naudio link means facilities (including telephone) that enable, at13\nthe same time, a court at a place to hear a person at another14\nplace and vice versa;15\nAustralia includes each external Territory;16\nAustralian court means —17\n(a) the High Court of Australia; or18\n(b) a court exercising federal jurisdiction; or19\n(c) a court of a State or Territory; or20\n(d) a judge, justice or arbitrator under an Australian law; or21\n(e) a person or body authorised by an Australian law, or by22\nconsent of parties, to hear, receive and examine23\nevidence; or24\n(f) a person or body that, in exercising a function under an25\nAustralian law, is required to apply the laws of26\nevidence;27\nAustralian law means a law of the Commonwealth, a State or a28\nTerritory;29\nAustralian or overseas proceeding means a proceeding30\n(however described) in an Australian court or a foreign court;31\n\nEvidence Bill 2025\nPart 1 Preliminary\nDivision 2 Interpretation\ns. 3\npage 4\nAustralian Parliament means —1\n(a) the Parliament; or2\n(b) the Parliament of the Commonwealth or of another3\nState; or4\n(c) any present or former Legislative Assembly of a5\nTerritory, including the Australian Capital Territory6\nHouse of Assembly;7\nbusiness has a meaning affected by section 4;8\ncase, of a party, means the facts in issue in respect of which the9\nparty bears the legal burden of proof;10\nchild means —11\n(a) a person under 18 years of age; or12\n(b) a person referred to in paragraph (b), (c) or (d) of the13\ndefinition of child in the Children’s Court of Western14\nAustralia Act 1988 section 3(1);15\ncivil proceeding means a proceeding other than a criminal16\nproceeding;17\nclient has a meaning affected by section 148(1);18\nco-accused, in relation to an accused in a criminal proceeding,19\nmeans a person against whom a prosecution has been instituted,20\nbut not yet completed or terminated, for —21\n(a) an offence that arose in relation to the same events as22\nthose in relation to which the offence for which the23\naccused is being prosecuted arose; or24\n(b) an offence that relates to or is connected with the25\noffence for which the accused is being prosecuted;26\ncoincidence evidence means evidence of a kind referred to in27\nsection 115(1) that a party seeks to have adduced for the28\npurpose referred to in that subsection;29\ncoincidence rule means the rule of evidence provided for by30\nsection 115(1);31\n\nEvidence Bill 2025\nPreliminary Part 1\nInterpretation Division 2\ns. 3\npage 5\ncomplainant —1\n(a) in relation to an offence — means a person against or in2\nrespect of whom the offence was or is alleged to have3\nbeen committed, attempted or proposed, regardless of4\nwhether a complaint about the offence has been made to5\nor recorded by a police officer; and6\n(b) in a criminal proceeding — means the person against or7\nin respect of whom the offence the subject of the8\nproceeding was or is alleged to have been committed,9\nattempted or proposed;10\ncourt means —11\n(a) the Supreme Court, the District Court, the Children’s12\nCourt, the Family Court, the Magistrates Court, a13\nwarden’s court under the Mining Act 1978 or a court of14\nsummary jurisdiction (as defined in the Criminal15\nProcedure Act 2004 section 3(1)); or16\n(b) the Coroner’s Court of Western Australia; or17\n(c) any other court created by Parliament; or18\n(d) any person or body that, in exercising a function under a19\nwritten law, is required to apply the laws of evidence;20\ncredibility, of a person who has made a representation that has21\nbeen admitted in evidence —22\n(a) means the credibility of the representation; and23\n(b) includes the person’s ability to observe or remember24\nfacts and events about which the person made the25\nrepresentation;26\ncredibility, of a witness —27\n(a) means the credibility of any part or all of the evidence of28\nthe witness; and29\n(b) includes the witness’s ability to observe or remember30\nfacts and events about which the witness has given, is31\ngiving or is to give evidence;32","sortOrder":1},{"sectionNumber":"retrieval-0003","sectionType":"document_chunk","heading":"Document excerpt 3","content":"Evidence Bill 2025\nPart 1 Preliminary\nDivision 2 Interpretation\ns. 3\npage 6\ncredibility rule means the rule of evidence provided for by1\nsection 120;2\ncriminal or identified organisation means —3\n(a) a criminal organisation as defined in The Criminal Code4\nsection 221D(1); or5\n(b) an organisation named in the Criminal Law (Unlawful6\nConsorting and Prohibited Insignia) Act 20217\nSchedule 2;8\ncriminal or identified organisation offence means an offence9\nalleged to have been committed —10\n(a) by a person who, at the time of the commission of the11\nalleged offence, is alleged to have been a member of a12\ncriminal or identified organisation; or13\n(b) at the direction of a criminal or identified organisation;14\nor15\n(c) in association with 1 or more members of a criminal or16\nidentified organisation (whether or not those members17\nare or have been charged with, or convicted of, the18\noffence); or19\n(d) for the benefit of a criminal or identified organisation;20\ncriminal proceeding —21\n(a) means a prosecution for an offence, other than a22\nprescribed taxation offence as defined in the Taxation23\nAdministration Act 1953 (Commonwealth) section 8A;24\nand25\n(b) includes the following stages of a prosecution —26\n(i) a proceeding for the committal of a person for27\ntrial or sentence for the offence;28\n(ii) a proceeding relating to bail;29\ncross-examination has the meaning given in section 5(2);30\ncross-examiner means a party who is cross-examining a31\nwitness;32\n\nEvidence Bill 2025\nPreliminary Part 1\nInterpretation Division 2\ns. 3\npage 7\ndisability includes the following —1\n(a) mental impairment;2\n(b) a developmental disorder;3\n(c) a neurological disorder;4\n(d) a physical disability;5\ndocument has the meaning given in section 6(1) and (2);6\nelectronic communication has the meaning given in the7\nElectronic Transactions Act 2011 section 5(1);8\nexamination in chief has the meaning given in section 5(1);9\nexternal Territory has the meaning given in the Acts10\nInterpretation Act 1901 (Commonwealth) section 2B;11\nfamily violence has the meaning given in the Restraining12\nOrders Act 1997 section 5A;13\nfamily violence offence means an offence that involves family14\nviolence or the threat of, or attempted, family violence;15\nforeign court means any court (including any person or body16\nauthorised to take or receive evidence, whether on behalf of a17\ncourt or otherwise and whether or not the person or body has18\npower to require the answering of questions or the production of19\ndocuments) of a foreign country or a part of a foreign country;20\ngovernment or official gazette includes the Gazette;21\ngovernment or official website includes the WA legislation22\nwebsite;23\nground rules hearing has the meaning given in section 295(1);24\nharm includes actual physical bodily harm, financial loss, stress25\nor shock, damage to reputation or emotional or psychological26\nharm (such as shame, humiliation and fear);27\nhearsay rule means the rule of evidence provided for by28\nsection 72(1);29\nidentification evidence has the meaning given in section 133;30\n\nEvidence Bill 2025\nPart 1 Preliminary\nDivision 2 Interpretation\ns. 3\npage 8\ninvestigating official means —1\n(a) a police officer (other than a police officer who is2\nengaged in covert investigations under the orders of a3\nsuperior); or4\n(b) a person appointed by or under an Australian law (other5\nthan a person who is engaged in covert investigations6\nunder the orders of a superior) whose functions include7\nfunctions in respect of the prevention or investigation of8\noffences;9\njudge, in relation to a proceeding, means the judge, magistrate10\nor other person before whom the proceeding is being held;11\nlaw, of the State, the Commonwealth, another State, a Territory12\nor a foreign country, has the meaning given in section 10;13\nleading question means a question asked of a witness that —14\n(a) directly or indirectly suggests a particular answer to the15\nquestion; or16\n(b) assumes the existence of a fact the existence of which is17\nin dispute in the proceeding and as to the existence of18\nwhich the witness has not given evidence before the19\nquestion is asked;20\nlegal counsel means —21\n(a) a legal practitioner; or22\n(b) a lawyer employed in or by a government agency or23\nother body who by law is exempted from holding an24\nAustralian practising certificate (as defined in the Legal25\nProfession Uniform Law (WA) section 6(1)), or who26\ndoes not require an Australian practising certificate, to27\nengage in legal practice in the course of that28\nemployment;29\nmental impairment has the meaning given in the Criminal Law30\n(Mental Impairment) Act 2023 section 9(1);31\n\nEvidence Bill 2025\nPreliminary Part 1\nInterpretation Division 2\ns. 3\npage 9\nminister of religion —1\n(a) means a person who is recognised in accordance with2\nthe practices of a faith or religion as a person who is3\nauthorised to conduct services or ceremonies in4\naccordance with the tenets of the faith or religion; and5\n(b) includes such a person regardless of how the person’s6\nposition or title is described (for example, member of7\nthe clergy, priest, minister, imam, rabbi or pastor);8\noffence —9\n(a) means an offence against or arising under an Australian10\nlaw; and11\n(b) includes an alleged offence;12\noffspring, of a person, has the meaning given in section 13(1);13\nopinion rule means the rule of evidence provided for by14\nsection 90(1);15\nparent, of a person, has a meaning affected by section 13;16\nparty, in a criminal proceeding, includes an accused;17\nperson acting judicially —18\n(a) means any person or body having, in this State, by law19\nor by consent of the parties, authority to hear, receive20\nand examine evidence; but21\n(b) does not include —22\n(i) the State Administrative Tribunal or a member of23\nthe State Administrative Tribunal exercising the24\njurisdiction of the Tribunal; or25\n(ii) a member of a House of Parliament or a26\ncommittee of a House, or both Houses, of27\nParliament who, by law, has authority to hear,28\nreceive and examine evidence;29\npolice officer means —30\n(a) a member or special member of the Australian Federal31\nPolice; or32\n\nEvidence Bill 2025\nPart 1 Preliminary\nDivision 2 Interpretation\ns. 3\npage 10\n(b) a member of the police force of a State or Territory;1\nprevious representation means a representation made otherwise2\nthan in the course of giving evidence in the proceeding in which3\nevidence of the representation is sought to be adduced;4\nprior consistent statement, of a witness, means a previous5\nrepresentation of the witness that is consistent with evidence6\ngiven by the witness;7\nprior inconsistent statement, of a witness, means a previous8\nrepresentation of the witness that is inconsistent with evidence9\ngiven by the witness;10\nprobative value, of evidence, means the extent to which the11\nevidence could rationally affect the assessment of the12\nprobability of the existence of a fact in issue;13\nproceeding includes a proceeding that —14\n(a) relates to bail; or15\n(b) is an interlocutory proceeding or proceeding of a similar16\nkind; or17\n(c) is heard in chambers; or18\n(d) relates to sentencing;19\nprosecutor means a person who institutes or is responsible for20\nthe conduct of a prosecution;21\nprotected communication has the meaning given in22\nsection 165(1);23\npublic document has the meaning given in section 6(3) and (4);24\npublish means to disseminate to the public or a section of the25\npublic by any means, including the following —26\n(a) in a newspaper or periodical publication;27\n(b) by radio broadcast, television, a website, an online28\nfacility or other electronic means;29\nre-examination has the meaning given in section 5(3);30\nrelated proceeding, in relation to another proceeding, means —31\n(a) a retrial or rehearing of the other proceeding; or32\n\nEvidence Bill 2025\nPreliminary Part 1\nInterpretation Division 2\ns. 3\npage 11\n(b) a proceeding by way of appeal from, or judicial review1\nof, a decision made or penalty imposed in the other2\nproceeding;3\nrepresentation includes the following —4\n(a) an express or implied representation (whether oral or in5\nwriting);6\n(b) a representation to be inferred from conduct;7\n(c) a representation not intended by its maker to be8\ncommunicated to or seen by another person;9\n(d) a representation that for any reason is not10\ncommunicated;11\nscreening procedure means a procedure that involves the use of12\na screen, one-way glass or other device in relation to a witness13\nwhile the witness gives evidence in a proceeding so that —14\n(a) the witness cannot see a party to the proceeding; and15\n(b) the witness can be seen by the judge, the jury (if any),16\neach party to the proceeding and each party’s legal17\ncounsel (if any);18\nseal includes a stamp;19\nsexual abuse includes any misconduct of a sexual nature;20\nsexual offence means the following —21\n(a) an offence under The Criminal Code Chapter XXXI;22\n(b) an offence of a sexual nature under The Criminal Code23\nChapter XXII, XXV, XXVA or XXXIIIB;24\n(c) an offence under a provision of The Criminal Code or25\nanother written law that has been repealed, if the acts or26\nomissions that constituted the offence under the repealed27\nprovision would constitute an offence referred to in28\nparagraph (a) or (b);29\n\nEvidence Bill 2025\nPart 1 Preliminary\nDivision 2 Interpretation\ns. 3\npage 12\n(d) any other offence of a sexual nature —1\n(i) including an offence under The Criminal Code2\nsection 306 or the Children and Community3\nServices Act 2004 section 192; but4\n(ii) not including conduct of a person that has ceased5\nto be an offence against, or arising under, a law6\nof this State since the time when the person7\nengaged in the conduct;8\n(e) an offence of attempting to commit, conspiring with9\nanother person to commit, inciting another person to10\ncommit or attempting to procure another person to11\ncommit, an offence referred to in paragraph (a), (b), (c)12\nor (d);13\nsexual offence complainant means a complainant in relation to14\na sexual offence;15\nspecial witness has the meaning given in section 228(1);16\nsuperior court means the Supreme Court, the District Court or17\nthe Family Court, except when exercising federal jurisdiction;18\ntendency evidence means evidence of a kind referred to in19\nsection 113(1) that a party seeks to have adduced for the20\npurpose referred to in that subsection;21\ntendency rule means the rule of evidence provided for by22\nsection 113(1);23\ntraditional laws and customs, of an Aboriginal or Torres Strait24\nIslander group (including a kinship group), includes any of the25\ntraditions, customary laws, customs, observances, practices,26\nknowledge and beliefs of the group;27\ntribunal, of a State or Territory, means a person or body28\nauthorised by or under a law of the State or Territory to take29\nevidence on oath or affirmation;30\nvideo link means facilities (including closed-circuit television)31\nthat enable, at the same time, a court at a place to see and hear a32\nperson at another place and vice versa;33\n\nEvidence Bill 2025\nPreliminary Part 1\nInterpretation Division 2\ns. 3\npage 13\nvideo link separation procedure means a procedure for giving1\nevidence under which —2\n(a) a witness gives evidence at a separate place to the3\ncourtroom, while the evidence is transmitted to the4\ncourtroom by means of a video link; or5\n(b) a party is required to remain in a separate place to the6\ncourtroom while a witness gives evidence in the7\ncourtroom and the evidence of the witness is transmitted8\nby means of video link to the place in which the party9\nremains while the evidence is given;10\nWA tribunal —11\n(a) means a tribunal established in this State under a written12\nlaw; but13\n(b) does not include the State Administrative Tribunal;14\nwitness includes —15\n(a) a party giving evidence; and16\n(b) a person who is to give evidence as a witness in a17\nproceeding.18\n(2) A reference in this Act to a witness who has been called by a19\nparty to give evidence includes a reference to the party giving20\nevidence.21\n(3) In this Act —22\n(a) a reference to a person appointed or holding office under23\nor because of a law of the State or another Australian24\nlaw includes a reference to an employee as defined in25\nthe Public Sector Management Act 1994 section 3(1);26\nand27\n(b) a reference to a person appointed or holding office under28\nor because of a law of the Commonwealth or another29\nAustralian law includes a reference to an APS employee30\nas defined in the Public Service Act 199931\n(Commonwealth) section 7; and32\n\nEvidence Bill 2025\nPart 1 Preliminary\nDivision 2 Interpretation\ns. 4\npage 14\n(c) for the purposes of paragraphs (a) and (b), a reference to1\nan office is a reference to the position occupied by the2\nemployee concerned.3\n(4) Without limiting the effect of the Interpretation Act 19844\nsection 19, the material that may be considered in accordance5\nwith that section in the interpretation of a provision of this Act6\nincludes any relevant report of a Law Reform Commission laid7\nbefore either House of the Parliament of the Commonwealth8\nbefore the provision was enacted.9\nNote for this section:10\nThe Evidence Act 1995 (Commonwealth) sets out a law of evidence11\nthat is the basis for similar (but not identical) Acts that have been12\nenacted in some States and Territories. These Acts are referred to as13\nthe uniform evidence law. Parts of this Act are based on uniform14\nevidence law provisions, as in force at 1 January 2025.15\nParts of this Act are based on provisions of the Evidence Act 1906,16\nwhich is repealed by this Act.17\nA note that compares a provision of this Act to a specified provision of18\nthe Evidence Act 1995 (Commonwealth), the Evidence Act 1995 (New19\nSouth Wales) or the Evidence Act 1906 indicates that the provision of20\nthis Act is based (in whole or in part, and with possible modifications)21\non the specified provision.22\nCompare:23\nEvidence Act 1906 s. 3, 109 and 12024\nEvidence Act 1995 (Commonwealth) Dictionary25\n4. References to business26\n(1) A reference in this Act to a business includes a reference to the27\nfollowing —28\n(a) a profession, calling, occupation, trade or undertaking;29\n(b) an activity engaged in or carried on by the30\nCommonwealth, a State or a Territory;31\n(c) an activity engaged in or carried on by the government32\nof a foreign country;33\n(d) an activity engaged in or carried on by a person or body34\nholding office or exercising power under or because of35\n\nEvidence Bill 2025\nPreliminary Part 1\nInterpretation Division 2\ns. 5\npage 15\nthe Commonwealth Constitution, an Australian law or a1\nlaw of a foreign country, being an activity engaged in or2\ncarried on in the performance of the functions of the3\noffice or in the exercise of the power (otherwise than in4\na private capacity);5\n(e) the proceedings of an Australian Parliament, a House of6\nan Australian Parliament, a committee of a House of an7\nAustralian Parliament or a committee of an Australian8\nParliament;9\n(f) the proceedings of a legislature of a foreign country,10\nincluding a House or committee (however described) of11\na legislature of a foreign country.12\n(2) A reference in this Act to a business also includes a reference to13\neach of the following —14\n(a) a business that is not engaged in or carried on for profit;15\n(b) a business engaged in or carried on outside Australia.16\nCompare:17\nEvidence Act 1995 (Commonwealth) Dictionary Part 2 cl. 118\n5. Examination in chief, cross-examination and re-examination19\n(1) The examination in chief of a witness is the questioning of a20\nwitness by the party who called the witness to give evidence,21\nnot being questioning that is re-examination.22\n(2) The cross-examination of a witness is the questioning of a23\nwitness by a party other than the party who called the witness to24\ngive evidence.25\n(3) The re-examination of a witness is the questioning of a witness26\nby the party who called the witness to give evidence, being27\nquestioning (other than further examination in chief with the28\nleave of the court) conducted after the cross-examination of the29\nwitness by another party.30\n(4) If a party recalls a witness who has already given evidence, the31\nquestioning of the witness by that party before the witness is32\n\nEvidence Bill 2025\nPart 1 Preliminary\nDivision 2 Interpretation\ns. 6\npage 16\nquestioned by another party is taken to be part of the1\nexamination in chief and not a re-examination of the witness.2\nCompare:3\nEvidence Act 1995 (Commonwealth) Dictionary Part 2 cl. 24\n6. References to documents5\n(1) A document is any record of information and includes the6\nfollowing —7\n(a) anything on which there is writing;8\n(b) anything on which there are marks, figures, symbols or9\nperforations having a meaning for persons qualified to10\ninterpret them;11\n(c) anything from which sounds, images or writings can be12\nreproduced with or without the aid of anything else;13\n(d) a map, plan, drawing or photograph.14\n(2) A document also includes the following —15\n(a) any part of the document;16\n(b) any copy, reproduction or duplicate of the document or17\nof any part of the document;18\n(c) any part of a copy, reproduction or duplicate of a19\ndocument.20\n(3) A public document is a document that —21\n(a) forms part of the records of the Commonwealth, a State22\nor a Territory; or23\n(b) forms part of the records of the government of a foreign24\ncountry; or25\n(c) forms part of the records of a person or body holding26\noffice or exercising a function under or because of the27\nCommonwealth Constitution, an Australian law or a law28\nof a foreign country; or29","sortOrder":2},{"sectionNumber":"retrieval-0004","sectionType":"document_chunk","heading":"Document excerpt 4","content":"Evidence Bill 2025\nPreliminary Part 1\nInterpretation Division 2\ns. 7\npage 17\n(d) is being kept by or on behalf of the Commonwealth, a1\nState or a Territory, a government of a foreign country2\nor a person or body referred to in paragraph (c).3\n(4) A public document includes the records of the proceedings of,4\nand papers presented to —5\n(a) an Australian Parliament, a House of an Australian6\nParliament, a committee of a House of an Australian7\nParliament or a committee of an Australian Parliament;8\nand9\n(b) a legislature of a foreign country, including a House or10\ncommittee (however described) of a legislature of a11\nforeign country.12\nCompare:13\nEvidence Act 1995 (Commonwealth) Dictionary Part 1 and Part 2 cl. 814\n7. Representations made in documents15\nFor the purposes of this Act, a representation contained in a16\ndocument is taken to have been made by a person if —17\n(a) the document was written, made or otherwise produced18\nby the person; or19\n(b) the representation was recognised or acknowledged by20\nthe person as the person’s representation by signing,21\ninitialling or otherwise marking the document.22\nCompare:23\nEvidence Act 1995 (Commonwealth) Dictionary Part 2 cl. 624\n8. References to availability of documents and things25\nFor the purposes of this Act, a document or thing is taken not to26\nbe available to a party if and only if —27\n(a) it cannot be found after reasonable inquiry and search by28\nthe party; or29\n\nEvidence Bill 2025\nPart 1 Preliminary\nDivision 2 Interpretation\ns. 9\npage 18\n(b) it was destroyed by the party, or by a person on behalf1\nof the party, otherwise than in bad faith, or was2\ndestroyed by another person; or3\n(c) it would be impractical to produce the document or4\nthing during the course of the proceeding; or5\n(d) production of the document or thing during the course of6\nthe proceeding could render a person liable to conviction7\nfor an offence; or8\n(e) it is not in the possession or under the control of the9\nparty and —10\n(i) it cannot be obtained by any judicial procedure11\nof the court; or12\n(ii) it is in the possession or under the control of13\nanother party to the proceeding concerned who14\nknows or might reasonably be expected to know15\nthat evidence of the contents of the document, or16\nevidence of the thing, is likely to be relevant in17\nthe proceeding; or18\n(iii) it was in the possession or under the control of19\nanother party to the proceeding concerned at a20\ntime when that party knew or might reasonably21\nbe expected to have known that evidence of the22\ncontents of the document, or evidence of the23\nthing, was likely to be relevant in the proceeding.24\nCompare:25\nEvidence Act 1995 (Commonwealth) Dictionary Part 2 cl. 526\n9. References to availability to give evidence27\n(1) For the purposes of this Act, a person is taken not to be28\navailable to give evidence about a fact if —29\n(a) the person is dead; or30\n(b) the person is, for any reason other than the application31\nof section 26, not competent to give the evidence; or32\n\nEvidence Bill 2025\nPreliminary Part 1\nInterpretation Division 2\ns. 10\npage 19\n(c) the person is mentally or physically unable to give the1\nevidence and it is not reasonably practicable to2\novercome that inability; or3\n(d) the person objects to giving the evidence under4\nsection 28 and that objection is upheld; or5\n(e) it would be unlawful for the person to give the evidence;6\nor7\n(f) a provision of this Act prohibits the evidence being8\ngiven; or9\n(g) all reasonable steps have been taken, by the party10\nseeking to prove the person is not available, to find the11\nperson or secure the person’s attendance, without12\nsuccess; or13\n(h) all reasonable steps have been taken, by the party14\nseeking to prove the person is not available, to compel15\nthe person to give the evidence, without success.16\n(2) In all other cases, the person is taken to be available to give17\nevidence about the fact.18\n(3) In deciding whether a person is not available to give evidence19\nunder subsection (1)(b) or (c), a court may inform itself as it20\nthinks fit.21\nCompare:22\nEvidence Act 1995 (Commonwealth) Dictionary Part 2 cl. 423\n10. References to laws24\n(1) A reference in this Act to a law of the State is a reference to a25\nwritten law or an unwritten law of, or in force in, the State.26\n(2) A reference in this Act to a law of the Commonwealth, another27\nState, a Territory or a foreign country is a reference to a law28\n(whether in the nature of a written law or an unwritten law) of,29\nor in force in, that place.30\n\nEvidence Bill 2025\nPart 1 Preliminary\nDivision 2 Interpretation\ns. 11\npage 20\n(3) A reference in this Act to an Australian law is a reference to an1\nAustralian law (whether in the nature of a written law or an2\nunwritten law) of, or in force in, Australia.3\nCompare:4\nEvidence Act 1995 (Commonwealth) Dictionary Part 2 cl. 95\n11. References to criminal proceedings6\n(1) A reference in this Act to a criminal proceeding for a particular7\noffence is a reference to a criminal proceeding in which a8\nperson stands charged with that offence —9\n(a) whether or not the person is charged with that offence10\nalone or together with another offence (as an alternative11\nor additional count); and12\n(b) whether or not the person is liable on the charge to be13\nfound guilty of any other offence.14\n(2) If a provision of this Act applies to a criminal proceeding for a15\nparticular offence it also applies to any related proceeding,16\nunless the contrary intention appears.17\nCompare:18\nEvidence Act 1906 s. 36A and Schedule 7 Part A cl. 119\n12. References to civil penalties20\nFor the purposes of this Act, a person is taken to be liable to a21\ncivil penalty if, in an Australian or overseas proceeding (other22\nthan a criminal proceeding), the person would be liable to a23\npenalty arising under an Australian law or a law of a foreign24\ncountry.25\nCompare:26\nEvidence Act 1995 (Commonwealth) Dictionary Part 2 cl. 327\n13. References to offspring and parents28\n(1) A person of any age is the offspring of another person if the29\nother person is the person’s parent.30\n\nEvidence Bill 2025\nPreliminary Part 1\nApplication of Act Division 3\ns. 14\npage 21\n(2) A parent, in relation to a child, includes a person who acts as a1\nparent to the child and with whom the child lives as if the child2\nwere a member of the person’s family.3\nCompare:4\nEvidence Act 1995 (Commonwealth) Dictionary Part 2 cl. 105\nDivision 3 — Application of Act6\n14. Application of Act7\nThis Act applies to all proceedings in a court.8\nCompare:9\nEvidence Act 1906 s. 410\nEvidence Act 1995 (Commonwealth) s. 411\n15. Extended application of certain provisions12\n(1) A provision of this Act applies to a proceeding before a13\nWA tribunal or a person acting judicially, whether or not the14\ntribunal or person acting judicially is a court, if this Act15\nexpressly provides that the provision extends to a proceeding16\nbefore a WA tribunal or a person acting judicially.17\n(2) If a provision of this Act extends to a proceeding before a WA18\ntribunal or a person acting judicially, a reference in the19\nprovision to a court includes a reference to a WA tribunal, or a20\nperson acting judicially, as the case requires.21\nExamples for this section:22\n1. Section 208, which permits evidence to be taken by video link or23\naudio link, extends to a proceeding before a WA tribunal.24\n2. Sections 328, 332 to 340 and 347, which facilitate proof of certain25\nmatters in proceedings, extend to a proceeding before a person26\nacting judicially.27\nCompare:28\nEvidence Act 1995 (Commonwealth) s. 529\n\nEvidence Bill 2025\nPart 1 Preliminary\nDivision 3 Application of Act\ns. 16\npage 22\n16. Electronic processes facilitation1\nThe Courts and Tribunals (Electronic Processes Facilitation)2\nAct 2013 Part 2 applies to this Act.3\nCompare:4\nEvidence Act 1906 s. 5A5\n17. Act binds Crown6\nThis Act binds the Crown in right of Western Australia and, so7\nfar as the legislative power of the Parliament permits, the Crown8\nin all its other capacities.9\n18. Operation of other Acts10\nThis Act does not affect the operation of the provisions of any11\nother Act.12\nCompare:13\nEvidence Act 1995 (New South Wales) s. 814\n19. Application of common law and equity15\n(1) This Act does not affect the operation of a principle or rule of16\ncommon law or equity in relation to evidence in a proceeding to17\nwhich this Act applies, except so far as this Act provides18\notherwise expressly or by necessary implication.19\n(2) Without limiting subsection (1), this Act does not affect the20\noperation of a principle or rule of common law or equity so far21\nas it relates to any of the following —22\n(a) admission or use of evidence of reasons for a decision of23\na member of a jury, or of the deliberations of a member24\nof a jury in relation to the decision, in a proceeding by25\nway of appeal from a judgment, decree, order or26\nsentence of a court;27\n(b) bail;28\n\nEvidence Bill 2025\nPreliminary Part 1\nApplication of Act Division 3\ns. 20\npage 23\n(c) any requirement for admission of evidence in support of1\nan alibi.2\nCompare:3\nEvidence Act 1995 (New South Wales) s. 94\nEvidence Act 1995 (Commonwealth) s. 95\n20. Parliamentary privilege preserved6\n(1) This Act does not affect the law relating to the privileges of any7\nAustralian Parliament or any House of any Australian8\nParliament.9\n(2) In particular, section 25(3) does not affect, and is in addition to,10\nthe law relating to those privileges.11\nCompare:12\nEvidence Act 1995 (Commonwealth) s. 1013\n21. General powers of court14\n(1) The power of a court to control the conduct of a proceeding is15\nnot affected by this Act, except so far as this Act provides16\notherwise expressly or by necessary implication.17\n(2) In particular, the powers of a court with respect of abuse of18\nprocess in a proceeding are not affected.19\nCompare:20\nEvidence Act 1995 (Commonwealth) s. 1121\n\nEvidence Bill 2025\nPart 2 Adducing evidence\nDivision 1 Witnesses\ns. 22\npage 24\nPart 2 — Adducing evidence1\nDivision 1 — Witnesses2\nSubdivision 1 — Competence and compellability of witnesses3\n22. Competence and compellability4\nExcept as otherwise provided by this Act —5\n(a) every person is competent to give evidence; and6\n(b) a person who is competent to give evidence about a fact7\nis compellable to give that evidence.8\nCompare:9\nEvidence Act 1995 (Commonwealth) s. 1210\n23. Competence: lack of capacity11\n(1) A person is not competent to give evidence about a fact if —12\n(a) for any reason (including a disability), the person does13\nnot have capacity —14\n(i) to understand a question about the fact; or15\n(ii) to give an answer that can be understood to a16\nquestion about the fact;17\nand18\n(b) that incapacity cannot be overcome.19\n(2) A person who, because of subsection (1), is not competent to20\ngive evidence about a fact may be competent to give evidence21\nabout other facts.22\n(3) A person who is competent to give evidence about a fact is not23\ncompetent to give sworn evidence about the fact if the person24\ndoes not have the capacity to understand that, in giving25\nevidence, the person is under an obligation to give truthful26\nevidence.27\n\nEvidence Bill 2025\nAdducing evidence Part 2\nWitnesses Division 1\ns. 24\npage 25\n(4) A person who is not competent to give sworn evidence about a1\nfact may be competent to give unsworn evidence about the fact.2\n(5) A person who, because of subsection (3), is not competent to3\ngive sworn evidence is competent to give unsworn evidence if4\nthe court has told the person —5\n(a) that it is important to tell the truth; and6\n(b) that the person may be asked questions that the person7\ndoes not know, or cannot remember, the answer to, and8\nthat the person should tell the court if this occurs; and9\n(c) that the person may be asked questions that suggest10\ncertain statements are true or untrue and that the person11\nshould agree with the statements that the person believes12\nare true and should feel no pressure to agree with13\nstatements that the person believes are untrue.14\n(6) It is presumed, unless the contrary is proved, that a person is not15\nincompetent because of this section.16\n(7) Evidence (either sworn or unsworn) that has been given by a17\nwitness does not become inadmissible merely because, before18\nthe witness finishes giving evidence, the witness dies or ceases19\nto be competent to give the evidence.20\n(8) For the purpose of determining a question arising under this21\nsection, the court may inform itself as it thinks fit, including by22\nobtaining information from a person who has relevant23\nspecialised knowledge based on the person’s training, study or24\nexperience.25\nCompare:26\nEvidence Act 1995 (Commonwealth) s. 1327\n24. Compellability: reduced capacity28\nA person is not compellable to give evidence on a particular29\nmatter if the court is satisfied that —30\n(a) substantial cost or delay would be incurred in ensuring31\nthat the person has the capacity to understand a question32\n\nEvidence Bill 2025\nPart 2 Adducing evidence\nDivision 1 Witnesses\ns. 25\npage 26\nabout the matter or to give an answer that can be1\nunderstood to a question about the matter; and2\n(b) adequate evidence on that matter has been given, or will3\nbe able to be given, from 1 or more other persons or4\nsources.5\nCompare:6\nEvidence Act 1995 (Commonwealth) s. 147\n25. Compellability: foreign sovereign and others8\n(1) In this section —9\njoint sitting means —10\n(a) in relation to the Parliament of the Commonwealth — a11\njoint sitting of the members of the Senate and of the12\nHouse of Representatives convened by the13\nGovernor-General under the Commonwealth14\nConstitution section 57 or convened under any Act of15\nthe Commonwealth; or16\n(b) in relation to a bicameral legislature of a State — a joint17\nsitting of both Houses of the legislature convened under18\na law of the State.19\n(2) The following persons are not compellable to give evidence —20\n(a) a foreign sovereign;21\n(b) the Head of State of a foreign country.22\n(3) A member of a House of an Australian Parliament is not23\ncompellable to give evidence if the member would, if compelled24\nto give evidence, be prevented from attending —25\n(a) a sitting of that House or a joint sitting of that26\nParliament; or27\n\nEvidence Bill 2025\nAdducing evidence Part 2\nWitnesses Division 1\ns. 26\npage 27\n(b) a meeting of a committee of that House or that1\nParliament, being a committee of which the person is a2\nmember.3\nCompare:4\nEvidence Act 1995 (Commonwealth) s. 155\n26. Competence and compellability: judges and jurors6\n(1) A person who is a judge or juror in a proceeding is not7\ncompetent to give evidence in that proceeding.8\n(2) However, a juror is competent to give evidence in the9\nproceeding about matters affecting the conduct of the10\nproceeding.11\n(3) A person who is or was a judge in an Australian or overseas12\nproceeding is not compellable to give evidence about that13\nproceeding unless the court gives leave.14\nCompare:15\nEvidence Act 1995 (Commonwealth) s. 1616\n27. Competence and compellability: accused and co-accused in17\ncriminal proceeding18\n(1) An accused is not competent to give evidence as a witness for19\nthe prosecution in a criminal proceeding.20\n(2) A co-accused is not compellable to give evidence for or against21\nan accused in a criminal proceeding, unless the co-accused is22\nbeing tried separately from the accused.23\n(3) If a witness is a co-accused who is being tried jointly with the24\naccused in a criminal proceeding, the court must satisfy itself (if25\nthere is a jury, in the jury’s absence) that the witness is aware of26\nthe effect of subsection (2).27\nCompare:28\nEvidence Act 1995 (Commonwealth) s. 1729\n\nEvidence Bill 2025\nPart 2 Adducing evidence\nDivision 1 Witnesses\ns. 28\npage 28\n28. Compellability: spouses and others in criminal proceeding1\n(1) In a criminal proceeding, a person who is the spouse, former2\nspouse, de facto partner, former de facto partner, parent or3\noffspring of an accused may object to being required —4\n(a) to give evidence as a witness for the prosecution; or5\n(b) to give evidence of a communication between the person6\nand the accused as a witness for the prosecution.7\n(2) The objection must be made before the person gives the8\nevidence or as soon as practicable after the person becomes9\naware of the right to object, whichever is the later.10\n(3) If it appears to the court that a person may have a right to make11\nan objection under this section, the court must satisfy itself that12\nthe person is aware of the effect of this section as it may apply13\nto the person.14\n(4) If there is a jury, the court must hear and determine any15\nobjection under this section in the absence of the jury.16\n(5) A person who makes an objection under this section to giving17\nevidence or giving evidence of a communication must not be18\nrequired to give the evidence if the court finds that —19\n(a) there is a likelihood that harm would or might be caused20\n(whether directly or indirectly) to the person, or to the21\nrelationship between the person and the accused, if the22\nperson gives the evidence; and23\n(b) the nature and extent of that harm outweighs the24\ndesirability of having the evidence given.25\n(6) Without limiting the matters that may be taken into account by26\nthe court for the purposes of subsection (5), it must take into27\naccount the following —28\n(a) the nature and gravity of the offence for which the29\naccused is being prosecuted;30","sortOrder":3},{"sectionNumber":"retrieval-0005","sectionType":"document_chunk","heading":"Document excerpt 5","content":"Evidence Bill 2025\nAdducing evidence Part 2\nWitnesses Division 1\ns. 29\npage 29\n(b) the substance and importance of any evidence that the1\nperson might give and the weight that is likely to be2\nattached to it;3\n(c) whether any other evidence concerning the matters to4\nwhich the evidence of the person would relate is5\nreasonably available to the prosecutor;6\n(d) the nature of the relationship between the accused and7\nthe person;8\n(e) whether, in giving the evidence, the person would have9\nto disclose a matter that was received by the person in10\nconfidence from the accused.11\n(7) If an objection under this section has been determined, the12\nprosecutor must not comment on —13\n(a) the objection; or14\n(b) the decision of the court in relation to the objection; or15\n(c) the failure of the person to give evidence.16\nCompare:17\nEvidence Act 1995 (Commonwealth) s. 1818\n29. Compellability: witnesses in public revenue cases19\n(1) This section applies to the following proceedings —20\n(a) a proceeding for a contravention of a provision of the21\nDuties Act 2008;22\n(b) a proceeding for a contravention of a provision of any23\nAct relating to the public revenue;24\n(c) any proceeding brought by or on behalf of, or against,25\nthe State under a provision of an Act referred to in26\nparagraph (a) or (b).27\n(2) A court may require any person to give evidence as a witness in28\na proceeding to which this section applies if the court is satisfied29\nthat it is in the public interest that the person gives that30\nevidence.31\n\nEvidence Bill 2025\nPart 2 Adducing evidence\nDivision 1 Witnesses\ns. 30\npage 30\n(3) Subsection (2) extends to an accused in a criminal proceeding to1\nwhich this section applies, who is taken to be competent to give2\nevidence for the prosecution in the proceeding.3\n(4) A person who is required by a court to give evidence under this4\nsection is compellable to give that evidence (despite any other5\nprovision of this Subdivision).6\n(5) This section does not apply to a proceeding before the7\nMagistrates Court or the Children’s Court when constituted8\nsolely by 1 or more justices of the peace.9\nNote for this section:10\nSection 191 makes provision for the issue of an immunity certificate to11\na person who is required to give evidence under this section that12\nincriminates the person.13\nCompare:14\nEvidence Act 1906 s. 1215\n30. Comment on decision not to give evidence in criminal16\nproceeding17\n(1) The judge or any party (other than the prosecutor) may18\ncomment on a decision of the accused to not give evidence in a19\ncriminal proceeding for an indictable offence.20\n(2) However, the comment must not suggest that the accused did21\nnot give evidence because the accused had, or believed that they22\nhad, committed the offence concerned.23\n(3) The judge or any party (other than the prosecutor) may24\ncomment on a decision to not give evidence in a criminal25\nproceeding for an indictable offence by a person who is —26\n(a) the spouse, former spouse, de facto partner or former de27\nfacto partner of the accused; or28\n(b) a parent or the offspring of the accused.29\n(4) However, a comment of a kind referred to in subsection (3)30\nmust not suggest that the spouse, former spouse, de facto31\n\nEvidence Bill 2025\nAdducing evidence Part 2\nWitnesses Division 1\ns. 31\npage 31\npartner, former de facto partner, parent or offspring decided not1\nto give evidence because —2\n(a) the accused had committed the offence concerned; or3\n(b) the spouse, former spouse, de facto partner, former de4\nfacto partner, parent or offspring believed that the5\naccused had committed the offence concerned.6\n(5) If 2 or more persons are being tried jointly for an indictable7\noffence and comment is made in the proceeding by any of those8\npersons on a decision of any of those persons, or of the spouse,9\nformer spouse, de facto partner, former de facto partner, parent10\nor offspring of any of those persons, to not give evidence, the11\njudge may comment on that comment, in addition to12\ncommenting on the decision to not give evidence.13\nCompare:14\nEvidence Act 1995 (Commonwealth) s. 2015\nSubdivision 2 — Oaths and affirmations16\n31. Sworn evidence of witnesses to be on oath or affirmation17\n(1) A witness in a proceeding must either take an oath or make an18\naffirmation before giving evidence.19\n(2) Subsection (1) does not apply to a person who gives unsworn20\nevidence because the person is not competent to give sworn21\nevidence.22\n(3) A person who is called merely to produce a document or thing23\nto the court need not take an oath or make an affirmation before24\ndoing so.25\n(4) The witness must take the oath, or make the affirmation, in the26\nfollowing form or in a similar form —27\nI [insert the opening words of an oath or affirmation in28\naccordance with the Oaths, Affidavits and Statutory29\nDeclarations Act 2005 section 4 or 5] that the evidence I will30\n\nEvidence Bill 2025\nPart 2 Adducing evidence\nDivision 1 Witnesses\ns. 32\npage 32\ngive in this case will be the truth, the whole truth and nothing1\nbut the truth.2\nCompare:3\nEvidence Act 1906 s. 974\nEvidence Act 1995 (Commonwealth) s. 21 and Schedule5\n32. Interpreters to act on oath or affirmation6\n(1) A person must either take an oath or make an affirmation before7\nacting as an interpreter in a proceeding.8\n(2) The person must take the oath, or make the affirmation, in the9\nfollowing form or in a similar form —10\nI [insert the opening words of an oath or affirmation in11\naccordance with the Oaths, Affidavits and Statutory12\nDeclarations Act 2005 section 4 or 5] that I will well and13\ntruly translate any evidence that I am asked to translate in this14\ncase.15\nCompare:16\nEvidence Act 1906 s. 10217\nEvidence Act 1995 (Commonwealth) s. 22 and Schedule18\n33. Choice of oath or affirmation19\n(1) The court must inform a person who is required to take an oath20\nor affirmation under this Act that the person may choose21\nbetween taking an oath or making an affirmation.22\n(2) The court may direct the person to make an affirmation if the23\nperson refuses to choose whether to take an oath or make an24\naffirmation.25\nCompare:26\nEvidence Act 1995 (Commonwealth) s. 2327\n\nEvidence Bill 2025\nAdducing evidence Part 2\nWitnesses Division 1\ns. 34\npage 33\n34. Application of Oaths, Affidavits and Statutory Declarations1\nAct 20052\n(1) This Act does not affect the operation of the Oaths, Affidavits3\nand Statutory Declarations Act 2005 and, in particular, Part 2 of4\nthat Act.5\nExample for this subsection:6\nThe Oaths, Affidavits and Statutory Declarations Act 2005 section 5(2)7\nprovides for circumstances in which a person may be required to make8\nan affirmation instead of taking an oath.9\n(2) The Oaths, Affidavits and Statutory Declarations Act 200510\nsection 6 applies to any person, other than a witness who is11\nrequired to take an oath or make an affirmation under this Act,12\nin the same way as it applies to a witness.13\nCompare:14\nEvidence Act 1906 s. 10515\nSubdivision 3 — General rules about giving evidence16\n35. Court’s control over questioning of witnesses17\nA court may make any orders it considers just in relation to the18\nfollowing —19\n(a) the way in which witnesses are to be questioned;20\n(b) the production and use of documents and things in21\nconnection with the questioning of witnesses;22\n(c) the order in which parties may question a witness;23\n(d) the presence and behaviour of any person in connection24\nwith the questioning of witnesses.25\nCompare:26\nEvidence Act 1995 (Commonwealth) s. 2627\n\nEvidence Bill 2025\nPart 2 Adducing evidence\nDivision 1 Witnesses\ns. 36\npage 34\n36. Parties may question witnesses1\nA party may question any witness, except as provided by this2\nAct.3\nCompare:4\nEvidence Act 1995 (Commonwealth) s. 275\n37. Order of examination in chief, cross-examination and6\nre-examination7\nUnless the court otherwise directs —8\n(a) cross-examination of a witness must not take place9\nbefore the examination in chief of the witness; and10\n(b) re-examination of a witness must not take place before11\nall other parties who wish to do so have cross-examined12\nthe witness.13\nCompare:14\nEvidence Act 1995 (Commonwealth) s. 2815\n38. Manner and form of questioning witnesses and their16\nresponses17\n(1) A party may question a witness in any way the party thinks fit,18\nexcept as provided by this Part or as directed by the court.19\n(2) A court may, on its own initiative or on the application of the20\nparty who called the witness, direct that the witness give21\nevidence wholly or partly in narrative form.22\n(3) A direction under subsection (2) may include directions about23\nthe way in which evidence must be given in that form.24\nCompare:25\nEvidence Act 1995 (Commonwealth) s. 2926\n\nEvidence Bill 2025\nAdducing evidence Part 2\nWitnesses Division 1\ns. 39\npage 35\n39. Interpreters1\nA witness may give evidence about a fact through an interpreter2\nunless the witness can understand and speak the English3\nlanguage sufficiently to enable the witness to understand, and to4\ngive an adequate reply to, questions that may be put about the5\nfact.6\nCompare:7\nEvidence Act 1995 (Commonwealth) s. 308\n40. Witnesses who cannot hear adequately or speak adequately9\n(1) A witness who cannot hear adequately may be questioned in10\nany appropriate way.11\n(2) A witness who cannot speak adequately may give evidence by12\nany appropriate means.13\n(3) The court may give directions concerning either or both of the14\nfollowing —15\n(a) the way in which a witness may be questioned under16\nsubsection (1);17\n(b) the means by which a witness may give evidence under18\nsubsection (2).19\n(4) This section does not affect the right of a witness to whom this20\nsection applies to give evidence about a fact through an21\ninterpreter under section 39.22\nCompare:23\nEvidence Act 1995 (Commonwealth) s. 3124\n41. Attempts to revive memory in court25\n(1) A witness must not, in the course of giving evidence, use a26\ndocument to try to revive the witness’s memory about a fact or27\nopinion unless the court gives leave.28\n\nEvidence Bill 2025\nPart 2 Adducing evidence\nDivision 1 Witnesses\ns. 42\npage 36\n(2) Without limiting the matters that the court may take into1\naccount in deciding whether to give leave, it must take into2\naccount —3\n(a) whether the witness will be able to recall the fact or4\nopinion adequately without using the document; and5\n(b) whether so much of the document as the witness6\nproposes to use is, or is a copy of, a document that —7\n(i) was written or made by the witness when the8\nevents recorded in it were fresh in the witness’s9\nmemory; or10\n(ii) was, at that time, found by the witness to be11\naccurate.12\n(3) If a witness has, while giving evidence, used a document to try13\nto revive the witness’s memory about a fact or opinion, the14\nwitness may, with the leave of the court, read aloud, as part of15\nthe witness’s evidence, the part of the document that relates to16\nthat fact or opinion.17\n(4) The court must, on the request of a party, give any directions the18\ncourt thinks fit to ensure that the part of the document that19\nrelates to the proceeding is produced to that party.20\nCompare:21\nEvidence Act 1995 (Commonwealth) s. 3222\n42. Evidence given by police officers23\n(1) Despite section 41, in any criminal proceeding a police officer24\nmay give evidence in chief for the prosecution by reading or25\nbeing led through a written statement previously made by the26\npolice officer.27\n(2) The evidence cannot be given unless —28\n(a) the statement was made by the police officer —29\n(i) at the time of or soon after the occurrence of the30\nevents to which it refers; or31\n\nEvidence Bill 2025\nAdducing evidence Part 2\nWitnesses Division 1\ns. 43\npage 37\n(ii) wholly or substantially on the basis of notes that1\nwere made by the police officer, or found by the2\npolice officer to be accurate, at the time of or3\nsoon after the occurrence of the events;4\nand5\n(b) the police officer signed the statement when it was6\nmade; and7\n(c) a copy of the statement was given to the accused or to8\nthe accused’s legal counsel a reasonable time before the9\nhearing of the evidence for the prosecution.10\n(3) This section extends to the giving of evidence in chief by a11\nperson who was formerly a police officer if the person was a12\npolice officer when the statement was made.13\nCompare:14\nEvidence Act 1995 (Commonwealth) s. 3315\n43. Attempts to revive memory out of court16\n(1) A court may, on the request of a party, give such directions as17\nare appropriate to ensure that specified documents and things18\nused by a witness otherwise than while giving evidence to try to19\nrevive the witness’s memory are produced to the party for the20\npurposes of the proceeding.21\n(2) The court may refuse to admit the evidence given by the witness22\nso far as it concerns a fact as to which the witness tried to revive23\nthe witness’s memory if, without reasonable excuse, the24\ndirections have not been complied with.25\nCompare:26\nEvidence Act 1995 (Commonwealth) s. 3427\n44. Effect of calling for production of documents28\n(1) A party cannot be required to tender a document only because29\nthe party, whether under this Act or otherwise —30\n(a) called for the document to be produced to the party; or31\n\nEvidence Bill 2025\nPart 2 Adducing evidence\nDivision 1 Witnesses\ns. 45\npage 38\n(b) inspected the document when it was produced.1\n(2) The party who produces a document called for is not entitled to2\ntender it only because the party to whom it was produced, or3\nwho inspected it, fails to tender it.4\nCompare:5\nEvidence Act 1995 (Commonwealth) s. 356\n45. Person may be examined without subpoena or other process7\n(1) A court may order a person to give evidence in a proceeding8\nand to produce documents or things even if a subpoena or other9\nprocess requiring the person to attend for that purpose has not10\nbeen duly served on the person if the person —11\n(a) is present at the hearing of the proceeding; and12\n(b) is compellable to give evidence in the proceeding.13\n(2) A court may order a person who is giving evidence in a14\nproceeding to produce documents or things even if a subpoena15\nor other process requiring the person to produce the document16\nor things has not been duly served on the person.17\n(3) A person ordered to give evidence or to produce documents or18\nthings is subject to the same penalties and liabilities as if the19\nperson had been duly served with a subpoena or other process.20\n(4) A party who inspects a document or thing produced to the court21\nbecause of subsection (1) or (2) need not use the document or22\nthing in evidence.23\n(5) A court that requires a person to give evidence or produce a24\ndocument by order under subsection (1) or (2) must ensure the25\nperson is given any information about the person’s rights with26\nrespect to the order that the person would have been given if the27\nrequirement had been made by subpoena or other process.28\n\nEvidence Bill 2025\nAdducing evidence Part 2\nWitnesses Division 1\ns. 46\npage 39\n(6) A person may object to a requirement to give evidence or1\nproduce a document under subsection (1) or (2) on the same2\ngrounds as the person could have objected if the requirement3\nhad been made by subpoena or other process.4\nCompare:5\nEvidence Act 1906 s. 156\nEvidence Act 1995 (Commonwealth) s. 367\nSubdivision 4 — Examination in chief and re-examination8\n46. Leading questions not to be asked9\n(1) A leading question must not be put to a witness in examination10\nin chief or in re-examination unless —11\n(a) the court gives leave; or12\n(b) the question relates to a matter introductory to the13\nwitness’s evidence; or14\n(c) no objection is made to the question and (leaving aside15\nthe party conducting the examination in chief or16\nre-examination) each other party to the proceeding is17\nrepresented by legal counsel or the prosecutor; or18\n(d) the question relates to a matter that is not in dispute; or19\n(e) if the witness has specialised knowledge based on the20\nwitness’s training, study or experience — the question is21\nasked for the purpose of obtaining the witness’s opinion22\nabout a hypothetical statement of facts, being facts in23\nrespect of which evidence has been, or is intended to be,24\ngiven.25\n(2) Unless the court otherwise directs, subsection (1) does not apply26\nin a civil proceeding to a question that relates to an27\ninvestigation, inspection or report that the witness made in the28\ncourse of carrying out public or official duties.29\n\nEvidence Bill 2025\nPart 2 Adducing evidence\nDivision 1 Witnesses\ns. 47\npage 40\n(3) Subsection (1) does not prevent a court from exercising power1\nunder rules of court to allow a written statement or report to be2\ntendered or treated as evidence in chief of its maker.3\nCompare:4\nEvidence Act 1995 (Commonwealth) s. 375\n47. Unfavourable witnesses6\n(1) A party who called a witness may, with the leave of the court,7\nquestion the witness, as though the party were cross-examining8\nthe witness, about —9\n(a) evidence given by the witness that is unfavourable to the10\nparty; or11\n(b) a matter of which the witness may reasonably be12\nsupposed to have knowledge and about which it appears13\nto the court the witness is not, in examination in chief,14\nmaking a genuine attempt to give evidence; or15\n(c) whether the witness has, at any time, made a prior16\ninconsistent statement.17\n(2) Questioning a witness under this section is taken to be18\ncross-examination for the purposes of this Act (other than for19\nthe purposes of re-examination of the witness).20\n(3) The party questioning the witness under this section may, with21\nthe leave of the court, question the witness about matters22\nrelevant only to the witness’s credibility.23\n(4) Questioning under this section must take place before the other24\nparties cross-examine the witness unless the court otherwise25\ndirects.26\n(5) If the court so directs, the order in which the parties question the27\nwitness must be as the court directs.28","sortOrder":4},{"sectionNumber":"retrieval-0006","sectionType":"document_chunk","heading":"Document excerpt 6","content":"Evidence Bill 2025\nAdducing evidence Part 2\nWitnesses Division 1\ns. 48\npage 41\n(6) Without limiting the matters that the court may take into1\naccount in determining whether to give leave or a direction2\nunder this section, it must take into account —3\n(a) whether the party gave notice at the earliest opportunity4\nof the party’s intention to seek leave; and5\n(b) the matters on which, and the extent to which, the6\nwitness has been, or is likely to be, questioned by7\nanother party.8\n(7) A party is subject to the same liability to be cross-examined9\nunder this section as any other witness if —10\n(a) a proceeding is being conducted in the name of the party11\nby or on behalf of an insurer or other person; and12\n(b) the party is a witness in the proceeding.13\nCompare:14\nEvidence Act 1995 (Commonwealth) s. 3815\n48. Limits on re-examination16\nOn re-examination —17\n(a) a witness may be questioned about matters arising out of18\nevidence given by the witness in cross-examination; and19\n(b) other questions must not be put to the witness unless the20\ncourt gives leave.21\nCompare:22\nEvidence Act 1995 (Commonwealth) s. 3923\nSubdivision 5 — Cross-examination24\n49. Witness called in error not to be cross-examined25\nA party must not cross-examine a witness who has been called26\nin error by another party and has not been questioned by that27\n\nEvidence Bill 2025\nPart 2 Adducing evidence\nDivision 1 Witnesses\ns. 50\npage 42\nother party about a matter relevant to a question to be1\ndetermined in the proceeding.2\nCompare:3\nEvidence Act 1995 (Commonwealth) s. 404\n50. Improper questions5\n(1) A court must disallow a question (a disallowable question) put6\nto a witness in cross-examination, or inform the witness that it7\nneed not be answered, if the court is of the opinion that the8\nquestion —9\n(a) is misleading or confusing; or10\n(b) is unduly annoying, harassing, intimidating, offensive,11\noppressive, humiliating or repetitive; or12\n(c) is put to the witness in a manner or tone that is belittling,13\ninsulting or otherwise inappropriate; or14\n(d) has no basis other than a stereotype (for example, a15\nstereotype based on sex, gender, sexual orientation, race,16\nculture, ethnicity, religious or political conviction, age17\nor disability).18\n(2) Without limiting the matters that the court may take into19\naccount for the purposes of subsection (1), it must take into20\naccount —21\n(a) any relevant condition or characteristic of the witness of22\nwhich the court is, or is made, aware, including age,23\neducation, ethnic and cultural background, sex, gender,24\nlanguage background and skills, level of maturity and25\nunderstanding and personality; and26\n(b) any disability of which the court is, or is made, aware27\nand which the witness has or appears to have; and28\n(c) the context in which the question is put, including —29\n(i) the nature of the proceeding; and30\n(ii) in a criminal proceeding — the nature of the31\noffence to which the proceeding relates; and32\n\nEvidence Bill 2025\nAdducing evidence Part 2\nWitnesses Division 1\ns. 51\npage 43\n(iii) the relationship (if any) between the witness and1\nany other party to the proceeding.2\n(3) A question is not a disallowable question merely because —3\n(a) the question challenges the truthfulness of the witness or4\nthe consistency or accuracy of any statement made by5\nthe witness; or6\n(b) the question requires the witness to discuss a subject that7\ncould be considered distasteful to, or private by, the8\nwitness.9\n(4) A party may object to a question put to a witness on the ground10\nthat it is a disallowable question.11\n(5) However, the duty imposed on the court by this section applies12\nwhether or not an objection is made to a particular question.13\n(6) A failure by the court to disallow a question under this section,14\nor to inform the witness that it need not be answered, does not15\naffect the admissibility in evidence of any answer given by the16\nwitness in response to the question.17\nCompare:18\nEvidence Act 1906 s. 2619\nEvidence Act 1995 (Commonwealth) s. 4120\n51. Leading questions may be asked21\n(1) A party may put a leading question to a witness in22\ncross-examination unless the court disallows the question or23\ndirects the witness not to answer it under subsection (2) or (3).24\n(2) The court must disallow a leading question, or direct the witness25\nnot to answer it, if the court is satisfied that the facts concerned26\nwould be better ascertained if leading questions were not used.27\n(3) The court may disallow a leading question or direct the witness28\nnot to answer it if subsection (2) does not apply.29\n\nEvidence Bill 2025\nPart 2 Adducing evidence\nDivision 1 Witnesses\ns. 52\npage 44\n(4) Without limiting the matters that the court may take into1\naccount in deciding whether to disallow a question or direct the2\nwitness not to answer it under subsection (3), the court must3\ntake into account the extent to which —4\n(a) evidence that has been given by the witness in5\nexamination in chief is unfavourable to the party who6\ncalled the witness; and7\n(b) the witness has an interest consistent with an interest of8\nthe cross-examiner; and9\n(c) the witness is sympathetic to the party conducting the10\ncross-examination, either generally or about a particular11\nmatter; and12\n(d) the age or any disability of the witness may affect the13\nwitness’s answers.14\n(5) This section does not limit the court’s power to control leading15\nquestions.16\nCompare:17\nEvidence Act 1995 (Commonwealth) s. 4218\n52. Prior inconsistent statements of witnesses19\n(1) A witness may be cross-examined about a prior inconsistent20\nstatement alleged to have been made by the witness whether or21\nnot —22\n(a) complete particulars of the statement have been given to23\nthe witness; or24\n(b) a document containing a record of the statement has25\nbeen shown to the witness.26\n(2) If, in cross-examination, a witness does not admit that the27\nwitness has made a prior inconsistent statement, the28\ncross-examiner must not adduce evidence of the statement29\n\nEvidence Bill 2025\nAdducing evidence Part 2\nWitnesses Division 1\ns. 53\npage 45\notherwise than from the witness unless, in the1\ncross-examination, the cross-examiner —2\n(a) informed the witness of enough of the circumstances of3\nthe making of the statement to enable the witness to4\nidentify the statement; and5\n(b) drew the witness’s attention to so much of the statement6\nas is inconsistent with the witness’s evidence.7\n(3) For the purpose of adducing evidence of the statement, a party8\nmay reopen the party’s case.9\nCompare:10\nEvidence Act 1906 s. 2111\nEvidence Act 1995 (Commonwealth) s. 4312\n53. Previous representations of other persons13\n(1) Except as provided by this section, a cross-examiner must not14\nquestion a witness about a previous representation alleged to15\nhave been made by a person other than the witness.16\n(2) A cross-examiner may question a witness about the17\nrepresentation and its contents if —18\n(a) evidence of the representation has been admitted; or19\n(b) the court is satisfied that it will be admitted; or20\n(c) the representation is contained in a document and the21\ndocument was used, during examination in chief, to try22\nto revive the witness’s memory.23\n(3) If subsection (2) does not apply and the representation is24\ncontained in a document, the document may be used to question25\na witness only as follows —26\n(a) the document must be produced to the witness;27\n(b) if the document is an audio recording, or any other kind28\nof document from which sounds are reproduced — the29\nwitness must be provided with the means (for example,30\nheadphones) to listen to the contents of the document31\n\nEvidence Bill 2025\nPart 2 Adducing evidence\nDivision 1 Witnesses\ns. 54\npage 46\nwithout other persons present at the cross-examination1\nhearing those contents;2\n(c) the witness must be asked whether, having examined (or3\nheard) the contents of the document, the witness stands4\nby the evidence that the witness has given;5\n(d) neither the cross-examiner nor the witness is permitted6\nto identify the document or disclose any of its contents.7\n(4) The document that is used to question the witness may be8\nmarked for identification.9\nCompare:10\nEvidence Act 1995 (Commonwealth) s. 4411\n54. Production of documents12\n(1) This section applies if a party is cross-examining or has13\ncross-examined a witness about —14\n(a) a prior inconsistent statement alleged to have been made15\nby the witness that is recorded in a document; or16\n(b) a previous representation alleged to have been made by17\nanother person that is recorded in a document.18\n(2) If the court orders or if another party requires, the19\ncross-examining party must produce to the court or to that other20\nparty —21\n(a) the document; or22\n(b) any evidence of the contents of the document that is23\navailable to the party.24\n(3) The court may —25\n(a) examine a document or evidence that has been produced26\nunder subsection (2); and27\n(b) give directions as to its use; and28\n(c) admit it even if it has not been tendered by a party.29\n\nEvidence Bill 2025\nAdducing evidence Part 2\nWitnesses Division 1\ns. 55\npage 47\n(4) Subsection (3)(c) does not permit the court to admit a document1\nor evidence that is not admissible because of Part 3, 4 or 5.2\n(5) The mere production of a document to a witness who is being3\ncross-examined does not give rise to a requirement that the4\ncross-examiner tender the document.5\nCompare:6\nEvidence Act 1995 (Commonwealth) s. 457\n55. Leave to recall witnesses8\n(1) A reference in this section to a matter raised by evidence9\nadduced by another party includes a reference to an inference10\ndrawn from, or that the party intends to draw from, that11\nevidence.12\n(2) The court may give leave to a party to recall a witness to give13\nevidence about a matter raised by evidence adduced by another14\nparty, being a matter on which the witness was not15\ncross-examined, if the evidence concerned has been admitted16\nand —17\n(a) it contradicts evidence about the matter given by the18\nwitness in examination in chief; or19\n(b) the witness could have given evidence about the matter20\nin examination in chief.21\nCompare:22\nEvidence Act 1995 (Commonwealth) s. 4623\n56. Cross-examination of witness by unrepresented party24\n(1) This section applies —25\n(a) in a criminal proceeding — if an accused who is not26\nrepresented by legal counsel wishes to cross-examine a27\nwitness; or28\n\nEvidence Bill 2025\nPart 2 Adducing evidence\nDivision 1 Witnesses\ns. 56\npage 48\n(b) in a civil proceeding in which it is alleged that a witness1\nis the victim of sexual abuse or sexual harassment — if2\na party who is not represented by legal counsel wishes to3\ncross-examine the witness.4\n(2) The court may, by order —5\n(a) direct that the witness’s evidence on cross-examination6\nbe given using a video link separation procedure that7\nseparates the witness from the cross-examiner; or8\n(b) if it is not possible to make an order under paragraph (a),9\ndirect that a screening procedure be used while the10\nwitness gives evidence on cross-examination so the11\nwitness cannot see the cross-examiner.12\n(3) In addition to, or instead of, making an order under13\nsubsection (2)(a) or (b), the court may make an order that —14\n(a) forbids the unrepresented party from putting questions15\ndirectly to the witness; and16\n(b) requires the unrepresented party to instead put the17\nquestions to the judge or another person approved by the18\ncourt.19\n(4) The judge or approved person must repeat each question20\naccurately to the witness (other than a question that is21\ndisallowed).22\n(5) The court must have regard to the following matters in deciding23\nwhether to make an order under this section —24\n(a) the nature of the charge or claim to which the25\nproceeding relates;26\n(b) the nature of the relationship (if any) between the27\nwitness and any party (including the unrepresented28\nparty);29\n(c) the nature of the relationship (if any) between the30\nparties;31\n\nEvidence Bill 2025\nAdducing evidence Part 2\nWitnesses Division 1\ns. 57\npage 49\n(d) the wishes of the witness;1\n(e) the availability of any necessary facilities or equipment.2\n(6) An order under this section —3\n(a) may include any directions the court thinks fit relating to4\nthe video link separation procedure or screening5\nprocedure; and6\n(b) may be varied or revoked at any time.7\n(7) If a court makes an order under this section in a proceeding8\nbefore a jury, the judge must instruct the jury that —9\n(a) the procedure used for the cross-examination is a routine10\npractice of the court; and11\n(b) they should not draw an inference as to the guilt of an12\naccused or the culpability of a party from the use of the13\nprocedure.14\n(8) This section applies despite the Criminal Procedure Act 200415\nsection 88.16\n(9) This section does not affect the operation of Part 7.17\n(10) Sections 280 and 281 apply to the use of a video link separation18\nprocedure or screening procedure under this section in the same19\nway as they apply to their use under Part 7 Division 7.20\nNote for this section:21\nPart 7 Division 10 restricts access to and use of recordings of evidence22\ngiven by witnesses using video link separation procedures or23\nscreening procedures.24\nCompare:25\nEvidence Act 1906 s. 25A26\n57. No direct cross-examination of certain witnesses by27\nunrepresented accused28\n(1) In a criminal proceeding, an accused who is not represented by29\nlegal counsel is not entitled to directly cross-examine —30\n(a) a child; or31\n\nEvidence Bill 2025\nPart 2 Adducing evidence\nDivision 1 Witnesses\ns. 57\npage 50\n(b) if the proceeding is for a sexual offence — the1\ncomplainant; or2\n(c) if the proceeding is for a criminal or identified3\norganisation offence —4\n(i) the complainant; or5\n(ii) any witness for the prosecution;6\nor7\n(d) any other witness of a class prescribed by the8\nregulations for the purposes of this section.9\n(2) Instead, the accused must put any questions to the witness by10\nstating the question to the judge or another person approved by11\nthe court.12\n(3) The judge or approved person must repeat each question13\naccurately to the witness (other than a question that is14\ndisallowed).15\n(4) This section does not apply to the cross-examination of a16\nwitness by an accused if —17\n(a) the witness is not a child; and18\n(b) the witness consents to being directly cross-examined by19\nthe accused.20\n(5) If the proceeding is before a jury, the judge must instruct the21\njury that —22\n(a) the procedure used for the cross-examination is a routine23\npractice of the court; and24\n(b) they should not draw an inference as to the accused’s25\nguilt from the use of the procedure.26\n(6) This section does not affect the operation of Part 7.27\nCompare:28\nEvidence Act 1906 s. 106G29\n\nEvidence Bill 2025\nAdducing evidence Part 2\nDocuments Division 2\ns. 58\npage 51\nDivision 2 — Documents1\n58. Terms used2\nIn this Division —3\ncopy, of a document in question, includes a document that is not4\nan exact copy of the document in question but that is identical to5\nthe document in question in all relevant respects;6\ndocument in question means a document as to the contents of7\nwhich it is sought to adduce evidence.8\nCompare:9\nEvidence Act 1995 (Commonwealth) s. 4710\n59. Proof of contents of documents11\n(1) A party may adduce evidence of the contents of a document in12\nquestion by tendering the document in question or by any of the13\nfollowing methods —14\n(a) adducing evidence of an admission made by another15\nparty to the proceeding as to the contents of the16\ndocument in question;17\n(b) tendering a document that —18\n(i) is or purports to be a copy or accurate19\nreproduction of the document in question; and20\n(ii) has been produced, or purports to have been21\nproduced, by a device that reproduces the22\ncontents of documents or has been made by any23\nother process or in any other way;24\n(c) if the document in question is an article or thing by25\nwhich words are recorded in a way that is capable of26\nbeing reproduced as sound, or in which words are27\nrecorded in a code (including shorthand writing) —28\ntendering a document that is or purports to be a29\ntranscript of the words;30\n\nEvidence Bill 2025\nPart 2 Adducing evidence\nDivision 2 Documents\ns. 59\npage 52\n(d) if the document in question is an article or thing on or in1\nwhich information is stored in a way that it cannot be2\nused by the court unless a device is used to retrieve,3\nproduce or collate it — tendering a document that was4\nor purports to have been produced by use of the device;5\n(e) tendering a document that —6\n(i) forms part of the records of or kept by a business7\n(whether or not the business is still in existence);8\nand9\n(ii) is or purports to be a copy of, or an extract from10\nor a summary of, the document in question, or is11\nor purports to be a copy of the extract or12\nsummary;13\n(f) if the document in question is a public document —14\ntendering a document that is or purports to be a copy of15\nthe document in question and that is or purports to have16\nbeen printed or published —17\n(i) by the Government Printer or by the government18\nor official printer of the Commonwealth, another19\nState or a Territory; or20\n(ii) by authority of the Government or administration21\nof the State, the Commonwealth, another State, a22\nTerritory or a foreign country; or23\n(iii) by authority of an Australian Parliament, a24\nHouse of an Australian Parliament, a committee25\nof a House of an Australian Parliament or a26\ncommittee of an Australian Parliament;27\n(g) tendering a document that otherwise accurately28\nreproduces the contents of the document in question.29\n(2) Subsection (1) applies to a document in question whether the30\ndocument in question is available to the party or not.31","sortOrder":5},{"sectionNumber":"retrieval-0007","sectionType":"document_chunk","heading":"Document excerpt 7","content":"Evidence Bill 2025\nAdducing evidence Part 2\nDocuments Division 2\ns. 60\npage 53\n(3) If the party adduces evidence of the contents of a document1\nunder subsection (1)(a), the evidence may only be used —2\n(a) in respect of the party’s case against the other party who3\nmade the admission concerned; or4\n(b) in respect of the other party’s case against the party who5\nadduced the evidence in that way.6\n(4) A party may adduce evidence of the contents of a document in7\nquestion that is not available to the party, or the existence and8\ncontents of which are not in issue in the proceeding, by —9\n(a) tendering a document that is a copy of, or an extract10\nfrom or summary of, the document in question; or11\n(b) adducing from a witness evidence of the contents of the12\ndocument in question.13\nCompare:14\nEvidence Act 1906 s. 73A15\nEvidence Act 1995 (Commonwealth) s. 4816\n60. Documents in foreign countries17\nSection 59(1)(b), (c), (d), (e) or (f) does not apply to a document18\nthat is in a foreign country unless —19\n(a) the party who adduces evidence of the contents of the20\ndocument in question has, not less than 28 days (or any21\nother period prescribed by the regulations or by rules of22\ncourt for the purposes of this section) before the day on23\nwhich the evidence is adduced, served on each other24\nparty a copy of the document proposed to be tendered;25\nor26\n(b) the court directs that it applies.27\nCompare:28\nEvidence Act 1995 (Commonwealth) s. 4929\n\nEvidence Bill 2025\nPart 2 Adducing evidence\nDivision 3 Other ways of adducing evidence\ns. 61\npage 54\n61. Original document rule abolished1\nThe principles and rules of common law that relate to the means2\nof proving the contents of documents are abolished.3\nCompare:4\nEvidence Act 1995 (Commonwealth) s. 515\n62. Copies of dutiable instruments6\n(1) In this section —7\nduties Act means the Stamp Act 1921 or the Duties Act 2008;8\nstamped means stamped or duty endorsed under a duties Act.9\n(2) If a document (the original document) is chargeable with duty10\nor required to be stamped, a copy of the original document is11\nnot admissible in a civil proceeding unless the court is satisfied12\nthat —13\n(a) the copy shows or establishes, or it is otherwise14\nestablished, that the original document was stamped as15\nrequired by the duties Act concerned; or16\n(b) the provisions of the duties Act concerned that enable17\nthe admission, or use, in a civil proceeding of a18\ndocument that is not stamped as required by that Act are19\ncomplied with as if the copy were the original20\ndocument.21\n(3) This section extends to a civil proceeding before a person acting22\njudicially.23\nCompare:24\nEvidence Act 1906 s. 73U25\nDivision 3 — Other ways of adducing evidence26\n63. Adducing of other evidence not affected27\nThis Act (other than this Division) does not affect the operation28\nof any Australian law or rule of practice so far as it permits29\n\nEvidence Bill 2025\nAdducing evidence Part 2\nOther ways of adducing evidence Division 3\ns. 64\npage 55\nevidence to be adduced in a way other than by witnesses giving1\nevidence or documents being tendered in evidence.2\nCompare:3\nEvidence Act 1995 (Commonwealth) s. 524\n64. Demonstrations, experiments and inspections5\n(1) A court may, on application, order that a demonstration,6\nexperiment or inspection be held in or outside the courtroom.7\n(2) A court must not make an order unless the court is satisfied8\nthat —9\n(a) the parties will be given a reasonable opportunity to be10\npresent; and11\n(b) the judge and, if there is a jury, the jury will be present.12\n(3) Without limiting the matters that the court may take into13\naccount in deciding whether to make an order, the court must14\ntake into account the following —15\n(a) whether the parties will be present;16\n(b) whether the demonstration, experiment or inspection17\nwill, in the court’s opinion, assist the court in resolving18\nissues of fact or understanding the evidence;19\n(c) the danger that the demonstration, experiment or20\ninspection might —21\n(i) be unfairly prejudicial; or22\n(ii) be misleading or confusing; or23\n(iii) cause or result in undue waste of time;24\n(d) in the case of a demonstration — the extent to which the25\ndemonstration will properly reproduce the conduct or26\nevent to be demonstrated;27\n(e) in the case of an inspection — the extent to which the28\nplace or thing to be inspected has materially altered.29\n\nEvidence Bill 2025\nPart 2 Adducing evidence\nDivision 3 Other ways of adducing evidence\ns. 65\npage 56\n(4) The court (including, if there is a jury, the jury) must not1\nconduct an experiment in the course of its deliberations.2\n(5) This section does not apply in relation to the inspection of an3\nexhibit by the court or, if there is a jury, by the jury.4\nCompare:5\nEvidence Act 1995 (Commonwealth) s. 536\n65. Demonstrations, experiments and inspections to be evidence7\nA court (including, if there is a jury, the jury) may draw any8\nreasonable inference from what it sees, hears or otherwise9\nnotices during a demonstration, experiment or inspection.10\nCompare:11\nEvidence Act 1995 (Commonwealth) s. 5412\n66. Charts, summaries and explanatory documents13\n(1) Evidence may be given in the form of a chart, summary or other14\nexplanatory document if it appears to the court that the15\ndocument would be likely to aid comprehension of other16\nevidence that has been given or is to be given.17\n(2) This section does not affect the operation of section 67.18\nCompare:19\nEvidence Act 1906 s. 27A20\n67. Court may require voluminous or complex evidence to be21\ngiven in another form22\n(1) If a court is satisfied that any oral or documentary evidence that23\na party proposes to adduce is so complex or voluminous that it24\nwould be difficult to assess or comprehend, the court may direct25\nthe party to adduce the evidence wholly or partly in another26\nform, including in the form of a chart, summary or other27\nexplanatory document.28\n\nEvidence Bill 2025\nAdducing evidence Part 2\nOther ways of adducing evidence Division 3\ns. 67\npage 57\n(2) The court may make a direction under this section on its own1\ninitiative or on the application of a party.2\n(3) The direction may include directions about the form in which3\nevidence must be given.4\n(4) The direction must also contain directions to ensure that each5\nother party —6\n(a) is served with —7\n(i) copies of the evidence in the form in which the8\nevidence must be given; and9\n(ii) the name and address of the person who prepared10\nthe evidence in that form;11\nand12\n(b) is given a reasonable opportunity to examine or copy the13\nevidence.14\n(5) The opinion rule does not apply to evidence adduced in15\naccordance with a direction under this section.16\nCompare:17\nEvidence Act 1906 s. 27B18\nEvidence Act 1995 (Commonwealth) s. 5019\n\nEvidence Bill 2025\nPart 3 Admissibility of evidence\nDivision 1 Relevance\ns. 68\npage 58\nPart 3 — Admissibility of evidence1\nDivision 1 — Relevance2\n68. Relevant evidence3\n(1) The evidence that is relevant in a proceeding is evidence that, if4\nit were accepted, could rationally affect (directly or indirectly)5\nthe assessment of the probability of the existence of a fact in6\nissue in the proceeding.7\n(2) In particular, evidence cannot be considered irrelevant only8\nbecause it relates only to —9\n(a) the credibility of a witness; or10\n(b) the admissibility of other evidence; or11\n(c) a failure to adduce evidence.12\nCompare:13\nEvidence Act 1995 (Commonwealth) s. 5514\n69. Relevant evidence to be admissible15\n(1) Except as otherwise provided by this Act, evidence that is16\nrelevant in a proceeding is admissible in the proceeding.17\n(2) Evidence that is not relevant in the proceeding is not admissible.18\nCompare:19\nEvidence Act 1995 (Commonwealth) s. 5620\n70. Provisional relevance21\n(1) If the determination of the question whether evidence adduced22\nby a party is relevant depends on the court making another23\nfinding (including a finding that the evidence is what the party24\nclaims it to be), the court may find that the evidence is25\nrelevant —26\n(a) if it is reasonably open to make that finding; or27\n\nEvidence Bill 2025\nAdmissibility of evidence Part 3\nHearsay Division 2\ns. 71\npage 59\n(b) subject to further evidence being admitted at a later1\nstage of the proceeding that will make it reasonably2\nopen to make that finding.3\n(2) Without limiting subsection (1), if the relevance of evidence of4\nan act done by a person depends on the court making a finding5\nthat the person and 1 or more other persons had, or were acting6\nin furtherance of, a common purpose (whether to effect an7\nunlawful conspiracy or otherwise), the court may use the8\nevidence itself in determining whether the common purpose9\nexisted.10\nCompare:11\nEvidence Act 1995 (Commonwealth) s. 5712\n71. Inferences as to relevance13\n(1) If a question arises as to the relevance of a document or thing,14\nthe court may examine it and may draw any reasonable15\ninference from it, including an inference as to its authenticity or16\nidentity.17\n(2) Subsection (1) does not limit the matters from which inferences18\nmay properly be drawn.19\nCompare:20\nEvidence Act 1995 (Commonwealth) s. 5821\nDivision 2 — Hearsay22\nSubdivision 1 — Hearsay rule23\n72. Hearsay rule: exclusion of hearsay evidence24\n(1) Evidence of a previous representation made by a person is not25\nadmissible to prove the existence of a fact that it can reasonably26\nbe supposed that the person intended to assert by the27\nrepresentation (an asserted fact).28\n\nEvidence Bill 2025\nPart 3 Admissibility of evidence\nDivision 2 Hearsay\ns. 73\npage 60\n(2) For the purposes of determining under subsection (1) whether it1\ncan reasonably be supposed that the person intended to assert a2\nparticular fact by the representation, the court may have regard3\nto the circumstances in which the representation was made.4\nNote for this subsection:5\nThis subsection relates to the decision of the Supreme Court of New6\nSouth Wales in R. v Hannes (2000) 158 FLR 359.7\n(3) Subsection (1) does not apply to evidence of a representation8\ncontained in a certificate or other document given or made9\nunder regulations made under an Act (other than this Act) to the10\nextent to which the regulations under that Act provide that the11\ncertificate or other document has evidentiary effect.12\nExamples for this section:13\n1. D is the accused in a sexual offence trial. W has made a statement to14\nthe police that X told W that X had seen D leave a nightclub with the15\ncomplainant shortly before the sexual offence is alleged to have16\noccurred. Unless an exception to the hearsay rule applies, evidence of17\nwhat X told W cannot be given at the trial.18\n2. P had told W that the handbrake on W’s car did not work. Unless an19\nexception to the hearsay rule applies, evidence of that statement20\ncannot be given by P, W or anyone else to prove that the handbrake21\nwas defective.22\n3. W had bought an electronic device and written down its serial number23\non a document. Unless an exception to the hearsay rule applies, the24\ndocument is inadmissible to prove that an electronic device later found25\nin D’s possession was the electronic device bought by W.26\nCompare:27\nEvidence Act 1995 (Commonwealth) s. 5928\n73. Exception: evidence relevant for non-hearsay purpose29\n(1) The hearsay rule does not apply to evidence of a previous30\nrepresentation that is admitted because it is relevant for a31\npurpose other than proof of an asserted fact.32\n\nEvidence Bill 2025\nAdmissibility of evidence Part 3\nHearsay Division 2\ns. 74\npage 61\n(2) This section applies whether or not the person who made the1\nrepresentation had personal knowledge of the asserted fact (as2\ndefined in section 75(2)).3\nNote for this subsection:4\nThis subsection relates to the decision of the High Court of Australia in5\nLee v The Queen (1998) 195 CLR 594.6\n(3) However, this section does not apply in a criminal proceeding to7\nevidence of an admission.8\nCompare:9\nEvidence Act 1995 (Commonwealth) s. 6010\n74. Exceptions to hearsay rule dependent on competency11\n(1) This Division does not enable use of a previous representation12\nto prove the existence of an asserted fact if, when the13\nrepresentation was made, the person who made it was not14\ncompetent to give either sworn or unsworn evidence about the15\nfact.16\n(2) This section does not apply to a contemporaneous17\nrepresentation made by a person about the person’s health,18\nfeelings, sensations, intention, knowledge or state of mind.19\n(3) For the purposes of this section, it is presumed, unless the20\ncontrary is proved, that when the representation was made the21\nperson who made it was competent to give evidence about the22\nasserted fact.23\nCompare:24\nEvidence Act 1995 (Commonwealth) s. 6125\nSubdivision 2 — First-hand hearsay26\n75. Restriction to first-hand hearsay27\n(1) A reference in this Subdivision (other than in subsection (2)) to28\na previous representation is a reference to a previous29\nrepresentation that was made by a person who had personal30\nknowledge of an asserted fact.31\n\nEvidence Bill 2025\nPart 3 Admissibility of evidence\nDivision 2 Hearsay\ns. 76\npage 62\n(2) A person has personal knowledge of the asserted fact if the1\nperson’s knowledge of the fact was, or might reasonably be2\nsupposed to have been, based on something that the person saw,3\nheard or otherwise perceived, other than a previous4\nrepresentation made by another person about the fact.5\n(3) For the purposes of section 80, a person has personal6\nknowledge of the asserted fact if it is a fact about the person’s7\nhealth, feelings, sensations, intention, knowledge or state of8\nmind at the time the representation referred to in that section9\nwas made.10\nCompare:11\nEvidence Act 1995 (Commonwealth) s. 6212\n76. Exception: civil proceeding if maker not available13\n(1) This section applies to a civil proceeding if a person who made14\na previous representation is not available to give evidence about15\nan asserted fact.16\n(2) The hearsay rule does not apply to —17\n(a) evidence of the representation that is given by a person18\nwho saw, heard or otherwise perceived the19\nrepresentation being made; or20\n(b) a document so far as it contains the representation, or21\nanother representation to which it is reasonably22\nnecessary to refer in order to understand the23\nrepresentation.24\nCompare:25\nEvidence Act 1995 (Commonwealth) s. 6326\n77. Exception: civil proceeding if maker available27\n(1) This section applies to a civil proceeding if a person who made28\na previous representation is available to give evidence about an29\nasserted fact.30\n\nEvidence Bill 2025\nAdmissibility of evidence Part 3\nHearsay Division 2\ns. 78\npage 63\n(2) The hearsay rule does not apply to the following if it would1\ncause undue expense or undue delay, or would not be2\nreasonably practicable, to call the person who made the3\nrepresentation to give evidence —4\n(a) evidence of the representation that is given by a person5\nwho saw, heard or otherwise perceived the6\nrepresentation being made;7\n(b) a document so far as it contains the representation, or8\nanother representation to which it is reasonably9\nnecessary to refer in order to understand the10\nrepresentation.11\n(3) If the person who made the representation has been or is to be12\ncalled to give evidence, the hearsay rule does not apply to13\nevidence of the representation that is given by —14\n(a) that person; or15\n(b) a person who saw, heard or otherwise perceived the16\nrepresentation being made.17\n(4) A document containing a representation to which subsection (3)18\napplies must not be tendered before the conclusion of the19\nexamination in chief of the person who made the representation20\nunless the court gives leave.21\nCompare:22\nEvidence Act 1995 (Commonwealth) s. 6423\n78. Exception: criminal proceeding if maker not available24\n(1) This section applies to a criminal proceeding if a person who25\nmade a previous representation is not available to give evidence26\nabout an asserted fact.27\n(2) The hearsay rule does not apply to evidence of a previous28\nrepresentation that is given by a person who saw, heard or29\n\nEvidence Bill 2025\nPart 3 Admissibility of evidence\nDivision 2 Hearsay\ns. 78\npage 64\notherwise perceived the representation being made if the1\nrepresentation —2\n(a) was made under a duty to make that representation or to3\nmake representations of that kind; or4\n(b) was made when or shortly after the asserted fact5\noccurred and in circumstances that make it unlikely that6\nthe representation is a fabrication; or7\n(c) was made in circumstances that make it highly probable8\nthat the representation is reliable; or9\n(d) was —10\n(i) against the interests of the person who made it at11\nthe time it was made; and12\n(ii) made in circumstances that make it likely that the13\nrepresentation is reliable.14\n(3) The hearsay rule does not apply to evidence of a previous15\nrepresentation made in the course of giving evidence in an16\nAustralian or overseas proceeding if, in that proceeding, the17\naccused in the proceeding to which this section is being18\napplied —19\n(a) cross-examined the person who made the representation20\nabout it; or21\n(b) had a reasonable opportunity to cross-examine the22\nperson who made the representation about it.23\n(4) If there is more than 1 accused in the criminal proceeding,24\nevidence of a previous representation that is admitted into25\nevidence in the criminal proceeding because of subsection (3)26\ncannot be used against an accused who did not cross-examine,27\nand did not have a reasonable opportunity to cross-examine, the28\nperson about the representation.29\n(5) For the purposes of subsections (3) and (4), an accused is taken30\nto have had a reasonable opportunity to cross-examine a person31\nif the accused was not present at a time when the32","sortOrder":6},{"sectionNumber":"retrieval-0008","sectionType":"document_chunk","heading":"Document excerpt 8","content":"Evidence Bill 2025\nAdmissibility of evidence Part 3\nHearsay Division 2\ns. 78\npage 65\ncross-examination of a person might have been conducted,1\nbut —2\n(a) could reasonably have been present at that time; and3\n(b) if present, could have cross-examined the person.4\n(6) Evidence of the making of a representation to which5\nsubsection (3) applies may be adduced by producing a6\ntranscript, or a recording, of the representation that is7\nauthenticated by —8\n(a) the person to whom, or the court or other body to which,9\nthe representation was made; or10\n(b) if applicable, the registrar or other proper officer of the11\ncourt or other body to which the representation was12\nmade; or13\n(c) the person or body responsible for producing the14\ntranscript or recording.15\n(7) Without limiting subsection (2)(d), a representation is taken for16\nthe purposes of that paragraph to be against the interests of the17\nperson who made it if it tends —18\n(a) to damage the person’s reputation; or19\n(b) to show that the person has committed an offence for20\nwhich the person has not been convicted; or21\n(c) to show that the person is liable in an action for22\ndamages.23\n(8) The hearsay rule does not apply to —24\n(a) evidence of a previous representation adduced by an25\naccused if the evidence is given by a person who saw,26\nheard or otherwise perceived the representation being27\nmade; or28\n(b) a document tendered as evidence by an accused so far as29\nit contains a previous representation, or another30\nrepresentation to which it is reasonably necessary to31\nrefer in order to understand the representation.32\n\nEvidence Bill 2025\nPart 3 Admissibility of evidence\nDivision 2 Hearsay\ns. 79\npage 66\n(9) If evidence of a previous representation about a matter has been1\nadduced by an accused and has been admitted, the hearsay rule2\ndoes not apply to evidence of another representation about the3\nmatter that —4\n(a) is adduced by another party; and5\n(b) is given by a person who saw, heard or otherwise6\nperceived the other representation being made.7\nCompare:8\nEvidence Act 1995 (Commonwealth) s. 659\n79. Exception: criminal proceeding if maker available10\n(1) This section applies to a criminal proceeding if a person who11\nmade a previous representation is available to give evidence12\nabout an asserted fact.13\n(2) The hearsay rule does not apply to evidence of the14\nrepresentation that is given by the person who made the15\nrepresentation, or by a person who saw, heard or otherwise16\nperceived the representation being made, if —17\n(a) the person who made the representation has been or is to18\nbe called to give evidence; and19\n(b) when the representation was made, the occurrence of the20\nasserted fact was fresh in the memory of the person who21\nmade the representation.22\n(3) In determining whether the occurrence of the asserted fact was23\nfresh in the memory of a person, the court may take into account24\nall matters that it considers are relevant to the question,25\nincluding —26\n(a) the nature of the event concerned; and27\n(b) the age and health of the person; and28\n\nEvidence Bill 2025\nAdmissibility of evidence Part 3\nHearsay Division 2\ns. 80\npage 67\n(c) the period of time between the occurrence of the1\nasserted fact and the making of the representation.2\nNote for this subsection:3\nThis subsection relates to the decision of the High Court of Australia in4\nGraham v The Queen (1998) 195 CLR 606.5\n(4) If a representation was made for the purpose of indicating the6\nevidence that the person who made it would be able to give in7\nan Australian or overseas proceeding, subsection (2) does not8\napply to evidence adduced by the prosecutor of the9\nrepresentation unless the representation concerns the identity of10\na person, place or thing.11\n(5) A document containing a representation to which subsection (2)12\napplies must not be tendered before the conclusion of the13\nexamination in chief of the person who made the representation14\nunless the court gives leave.15\nCompare:16\nEvidence Act 1995 (Commonwealth) s. 6617\n80. Exception: particular contemporaneous statements about18\nperson19\nThe hearsay rule does not apply to evidence of a previous20\nrepresentation made by a person if the representation was a21\ncontemporaneous representation about the person’s health,22\nfeelings, sensations, intention, knowledge or state of mind.23\nCompare:24\nEvidence Act 1995 (Commonwealth) s. 66A25\n81. Notice to be given26\n(1) An exception to the hearsay rule that is specified in27\nsection 76(2), 77(2) or 78(2), (3) or (8) does not apply to28\nevidence adduced by a party unless that party has given29\nreasonable notice in writing to each other party of the party’s30\nintention to adduce the evidence.31\n\nEvidence Bill 2025\nPart 3 Admissibility of evidence\nDivision 2 Hearsay\ns. 82\npage 68\n(2) A notice given under subsection (1) must be given in1\naccordance with any regulations or rules of court made for the2\npurposes of this section.3\n(3) The notice must state —4\n(a) the particular provisions of this Subdivision on which5\nthe party intends to rely in arguing that the hearsay rule6\ndoes not apply to the evidence; and7\n(b) if section 77(2) is a provision on which the party intends8\nto rely — the grounds, specified in that provision, on9\nwhich the party intends to rely.10\n(4) Despite subsection (1), if notice has not been given, the court11\nmay, on the application of a party, direct that 1 or more of the12\nexceptions to the hearsay rule referred to in subsection (1)13\napplies despite the party’s failure to give notice.14\n(5) The direction may provide that, in relation to specified15\nevidence, the exception or exceptions concerned apply with the16\nmodifications the court specifies.17\n(6) Subsection (5) does not limit the court’s power to impose18\nconditions on the direction.19\nCompare:20\nEvidence Act 1995 (Commonwealth) s. 6721\n82. Objections to tender of hearsay evidence in civil proceeding22\nif maker available23\n(1) In a civil proceeding, a party may, not later than 21 days after24\nnotice under section 81(1) has been given, object to the tender25\nof the evidence, or of a specified part of the evidence, if the26\nnotice discloses that it is not intended to call the person who27\nmade the previous representation concerned because —28\n(a) it would cause undue expense or undue delay; or29\n(b) it would not be reasonably practicable.30\n\nEvidence Bill 2025\nAdmissibility of evidence Part 3\nHearsay Division 2\ns. 83\npage 69\n(2) The objection must be made by giving to each other party a1\nwritten notice setting out the grounds on which the objection is2\nmade.3\n(3) The court may, on the application of a party, determine the4\nobjection at or before the hearing.5\n(4) If the objection is unreasonable, the court may order that, in any6\nevent, the party objecting must bear the costs (ascertained on a7\nsolicitor and client basis) incurred by another party —8\n(a) in relation to the objection; and9\n(b) in calling the person who made the representation to10\ngive evidence.11\nCompare:12\nEvidence Act 1995 (Commonwealth) s. 6813\nSubdivision 3 — Other exceptions to hearsay rule14\n83. Exception: business records15\n(1) This section applies to a document that contains a previous16\nrepresentation made or recorded in the document in the course17\nof, or for the purposes of, a business and that either —18\n(a) is or forms part of the records belonging to or kept by a19\nperson, body or organisation in the course of, or for the20\npurposes of, the business; or21\n(b) at any time was or formed part of a record referred to in22\nparagraph (a).23\n(2) The hearsay rule does not apply to the document (so far as it24\ncontains the representation) if the representation was made —25\n(a) by a person who had or might reasonably be supposed to26\nhave had personal knowledge of the asserted fact; or27\n(b) on the basis of information directly or indirectly28\nsupplied by a person who had or might reasonably be29\nsupposed to have had personal knowledge of the30\nasserted fact.31\n\nEvidence Bill 2025\nPart 3 Admissibility of evidence\nDivision 2 Hearsay\ns. 84\npage 70\n(3) Subsection (2) does not apply if the representation —1\n(a) was prepared or obtained for the purpose of conducting,2\nor for or in contemplation of or in connection with, an3\nAustralian or overseas proceeding; or4\n(b) was made in connection with an investigation relating or5\nleading to a criminal proceeding.6\n(4) If the occurrence of an event of a particular kind is in question7\nand, in the course of a business, a system has been followed of8\nmaking and keeping a record of the occurrence of all events of9\nthat kind, the hearsay rule does not apply to evidence that tends10\nto prove that there is no record kept, in accordance with that11\nsystem, of the occurrence of the event.12\n(5) For the purposes of this section, a person is taken to have had13\npersonal knowledge of a fact if the person’s knowledge of the14\nfact was, or might reasonably be supposed to have been, based15\non what the person saw, heard or otherwise perceived (other16\nthan a previous representation made by a person about the fact).17\nCompare:18\nEvidence Act 1995 (Commonwealth) s. 6919\n84. Exception: content of tags, labels and writing20\nThe hearsay rule does not apply to a tag or label attached to, or21\nwriting placed on, an object (including a document) if the tag or22\nlabel or writing may reasonably be supposed to have been23\nattached or placed —24\n(a) in the course of a business; or25\n(b) for the purpose of describing or stating the identity,26\nnature, ownership, destination, origin or weight of the27\nobject, or of the contents (if any) of the object.28\nCompare:29\nEvidence Act 1995 (Commonwealth) s. 7030\n\nEvidence Bill 2025\nAdmissibility of evidence Part 3\nHearsay Division 2\ns. 85\npage 71\n85. Exception: electronic communication1\nThe hearsay rule does not apply to a representation contained in2\na document recording an electronic communication so far as the3\nrepresentation is a representation as to —4\n(a) the identity of the person from whom or on whose5\nbehalf the communication was sent; or6\n(b) the date on which or the time at which the7\ncommunication was sent; or8\n(c) the destination of the communication or the identity of9\nthe person to whom the communication was addressed.10\nCompare:11\nEvidence Act 1995 (Commonwealth) s. 7112\n86. Exception: Aboriginal and Torres Strait Islander traditional13\nlaws and customs14\nThe hearsay rule does not apply to evidence of a representation15\nabout the existence or non-existence, or the content, of the16\ntraditional laws and customs of an Aboriginal or Torres Strait17\nIslander group.18\nCompare:19\nEvidence Act 1995 (Commonwealth) s. 7220\n87. Exception: reputation as to relationships and age21\n(1) The hearsay rule does not apply to evidence of reputation22\nconcerning —23\n(a) whether a person was, at a particular time or at any time,24\na married person; or25\n(b) whether 2 people cohabiting at a particular time were26\nmarried to each other at that time; or27\n(c) a person’s age; or28\n(d) family history or a family relationship.29\n\nEvidence Bill 2025\nPart 3 Admissibility of evidence\nDivision 2 Hearsay\ns. 88\npage 72\n(2) In a criminal proceeding, subsection (1) does not apply to1\nevidence adduced by an accused unless —2\n(a) it tends to contradict evidence of a kind referred to in3\nsubsection (1) that has been admitted; or4\n(b) the accused has given reasonable notice in writing to5\neach other party of the accused’s intention to adduce the6\nevidence.7\n(3) In a criminal proceeding, subsection (1) does not apply to8\nevidence adduced by the prosecutor unless it tends to contradict9\nevidence of a kind referred to in subsection (1) that has been10\nadmitted.11\nCompare:12\nEvidence Act 1995 (Commonwealth) s. 7313\n88. Exception: reputation of public or general rights14\n(1) The hearsay rule does not apply to evidence of reputation15\nconcerning the existence, nature or extent of a public or general16\nright.17\n(2) In a criminal proceeding, subsection (1) does not apply to18\nevidence adduced by the prosecutor unless it tends to contradict19\nevidence of a kind referred to in subsection (1) that has been20\nadmitted.21\nCompare:22\nEvidence Act 1995 (Commonwealth) s. 7423\n89. Exception: interlocutory proceedings24\nIn an interlocutory proceeding, the hearsay rule does not apply25\nto evidence if the party who adduces it also adduces evidence of26\nits source.27\nCompare:28\nEvidence Act 1995 (Commonwealth) s. 7529\n\nEvidence Bill 2025\nAdmissibility of evidence Part 3\nOpinion Division 3\ns. 90\npage 73\nDivision 3 — Opinion1\n90. Opinion rule2\n(1) Evidence of an opinion is not admissible to prove the existence3\nof a fact about the existence of which the opinion was4\nexpressed.5\n(2) Subsection (1) does not apply to evidence of an opinion6\ncontained in a certificate or other document given or made7\nunder regulations made under an Act (other than this Act) to the8\nextent to which the regulations provide that the certificate or9\nother document has evidentiary effect.10\nExamples for this section:11\n1. P sues D, P’s doctor, for the negligent performance of a surgical12\noperation. Unless an exception to the opinion rule applies, P’s13\nneighbour, W, who had the same operation, cannot give evidence of14\nW’s opinion that D had not performed the operation as well as W’s15\noperation.16\n2. P thinks electrical work that D, an electrician, has done for P is17\nunsatisfactory. Unless an exception to the opinion rule applies, P18\ncannot give evidence of P’s opinion that D does not have the19\nnecessary skills to do electrical work.20\nCompare:21\nEvidence Act 1995 (Commonwealth) s. 7622\n91. Exception: evidence relevant otherwise than as opinion23\nevidence24\nThe opinion rule does not apply to evidence of an opinion that is25\nadmitted because it is relevant for a purpose other than proof of26\nthe existence of a fact about the existence of which the opinion27\nwas expressed.28\nCompare:29\nEvidence Act 1995 (Commonwealth) s. 7730\n\nEvidence Bill 2025\nPart 3 Admissibility of evidence\nDivision 3 Opinion\ns. 92\npage 74\n92. Exception: lay opinions1\nThe opinion rule does not apply to evidence of an opinion2\nexpressed by a person if —3\n(a) the opinion is based on what the person saw, heard or4\notherwise perceived about a matter or event; and5\n(b) evidence of the opinion is necessary to obtain an6\nadequate account or understanding of the person’s7\nperception of the matter or event.8\nCompare:9\nEvidence Act 1995 (Commonwealth) s. 7810\n93. Exception: Aboriginal and Torres Strait Islander traditional11\nlaws and customs12\nThe opinion rule does not apply to evidence of an opinion13\nexpressed by a member of an Aboriginal or Torres Strait14\nIslander group about the existence or non-existence, or the15\ncontent, of the traditional laws and customs of the group.16\nCompare:17\nEvidence Act 1995 (Commonwealth) s. 78A18\n94. Exception: opinions based on specialised knowledge19\n(1) If a person has specialised knowledge based on the person’s20\ntraining, study or experience, the opinion rule does not apply to21\nevidence of an opinion of that person that is wholly or22\nsubstantially based on that knowledge.23\n(2) Without limiting subsection (1) —24\n(a) a reference in that subsection to specialised knowledge25\nincludes a reference to specialised knowledge of child26\ndevelopment and child behaviour (including specialised27\nknowledge of the impact of sexual abuse on children28\nand their development and behaviour during and29\nfollowing the abuse); and30\n\nEvidence Bill 2025\nAdmissibility of evidence Part 3\nAdmissions Division 4\ns. 95\npage 75\n(b) a reference in that subsection to an opinion of a person1\nincludes, if the person has specialised knowledge of the2\nkind referred to in paragraph (a), a reference to an3\nopinion relating to either or both of the following —4\n(i) the development and behaviour of children5\ngenerally;6\n(ii) the development and behaviour of children who7\nhave been victims of sexual abuse.8\nCompare:9\nEvidence Act 1995 (Commonwealth) s. 7910\n95. Ultimate issue and common knowledge rules abolished11\nEvidence of an opinion is not inadmissible only because it is12\nabout —13\n(a) a fact in issue or an ultimate issue; or14\n(b) a matter of common knowledge.15\nCompare:16\nEvidence Act 1995 (Commonwealth) s. 8017\nDivision 4 — Admissions18\n96. Hearsay and opinion rules: exception for admissions and19\nrelated representations20\n(1) The hearsay rule and the opinion rule do not apply to evidence21\nof an admission.22\n(2) The hearsay rule and the opinion rule do not apply to evidence23\nof a previous representation —24\n(a) that was made in relation to an admission at the time the25\nadmission was made, or shortly before or after that time;26\nand27","sortOrder":7},{"sectionNumber":"retrieval-0009","sectionType":"document_chunk","heading":"Document excerpt 9","content":"Evidence Bill 2025\nPart 3 Admissibility of evidence\nDivision 4 Admissions\ns. 97\npage 76\n(b) to which it is reasonably necessary to refer in order to1\nunderstand the admission.2\nExample for this section:3\nD admits to W, D’s friend, that D committed a sexual offence against V.4\nIn D’s trial for the sexual offence, the prosecution may lead evidence5\nfrom W —6\n(a) that D made the admission to W as proof of the truth of that7\nadmission; and8\n(b) that W formed the opinion that D was sane when D made the9\nadmission.10\nCompare:11\nEvidence Act 1995 (Commonwealth) s. 8112\n97. Exclusion of evidence of admissions that is not first-hand13\nSection 96 does not prevent the hearsay rule applying to14\nevidence of an admission unless —15\n(a) it is given by a person who saw, heard or otherwise16\nperceived the admission being made; or17\n(b) it is a document in which the admission is made.18\nCompare:19\nEvidence Act 1995 (Commonwealth) s. 8220\n98. Exclusion of evidence of admissions as against third parties21\n(1) Section 96 does not prevent the hearsay rule or the opinion rule22\napplying to evidence of an admission in respect of the case of a23\nparty (a third party) to the proceeding concerned who did not24\nmake the admission or adduce the evidence.25\n(2) The evidence may be used in respect of the case of a third party26\nif the third party consents.27\n(3) Consent cannot be given in respect of part only of the evidence.28\nCompare:29\nEvidence Act 1995 (Commonwealth) s. 8330\n\nEvidence Bill 2025\nAdmissibility of evidence Part 3\nAdmissions Division 4\ns. 99\npage 77\n99. Exclusion of admissions influenced by violence and certain1\nother conduct2\n(1) Evidence of an admission is not admissible unless the court is3\nsatisfied that the admission, and the making of the admission,4\nwere not influenced by —5\n(a) violent, oppressive, inhuman or degrading conduct,6\nwhether towards the person who made the admission or7\ntowards another person; or8\n(b) a threat of conduct of that kind.9\n(2) Subsection (1) only applies if the party against whom evidence10\nof the admission is adduced has raised in the proceeding an11\nissue about whether the admission or its making were12\ninfluenced as referred to in subsection (1).13\nCompare:14\nEvidence Act 1995 (Commonwealth) s. 8415\n100. Criminal proceedings: reliability of admissions by accused16\n(1) This section applies only in a criminal proceeding and only to17\nevidence of an admission made by an accused —18\n(a) to, or in the presence of, an investigating official who at19\nthat time was performing functions in connection with20\nthe investigation of the commission, or possible21\ncommission, of an offence; or22\n(b) as a result of an act of another person who was, and who23\nthe accused knew or reasonably believed to be, capable24\nof influencing the decision whether a prosecution of the25\naccused should be brought or should be continued.26\nNote for this subsection:27\nThis subsection relates to the decision of the High Court of Australia in28\nKelly v The Queen (2004) 218 CLR 216.29\n(2) Evidence of the admission is not admissible unless the30\ncircumstances in which the admission was made make it31\nunlikely that the truth of the admission was adversely affected.32\n\nEvidence Bill 2025\nPart 3 Admissibility of evidence\nDivision 4 Admissions\ns. 101\npage 78\n(3) Without limiting the matters that the court may take into1\naccount for the purposes of subsection (2), it must take into2\naccount —3\n(a) any relevant condition or characteristic of the person4\nwho made the admission, including age, personality,5\nrace, culture, ethnicity, religion and education and any6\ndisability that the person has or appears to have; and7\n(b) if the admission was made in response to questioning —8\n(i) the nature of the questions and the manner in9\nwhich they were put; and10\n(ii) the nature of any threat, promise or other11\ninducement made to the person questioned.12\nCompare:13\nEvidence Act 1995 (Commonwealth) s. 8514\n101. Criminal proceedings: exclusion of records of oral15\nquestioning16\n(1) This section applies only in a criminal proceeding and only if an17\noral admission was made by an accused to an investigating18\nofficial in response to a question put or a representation made19\nby the official.20\n(2) A document prepared by or on behalf of the official is not21\nadmissible to prove the contents of the question, representation22\nor response unless the accused has acknowledged that the23\ndocument is a true record of the question, representation or24\nresponse.25\n(3) The acknowledgment must be made by signing, initialling or26\notherwise marking the document.27\n(4) This section does not apply to the following documents —28\n(a) an audio recording, or a transcript of that type of29\nrecording;30\n\nEvidence Bill 2025\nAdmissibility of evidence Part 3\nAdmissions Division 4\ns. 102\npage 79\n(b) a recording of visual images and sounds, or a transcript1\nof that type of recording.2\nCompare:3\nEvidence Act 1995 (Commonwealth) s. 864\n102. Admissions made with authority5\n(1) For the purpose of determining whether a previous6\nrepresentation made by a person is also taken to be an admission7\nby a party, the court must admit the representation if it is8\nreasonably open to find that —9\n(a) when the representation was made, the person had10\nauthority to make statements on behalf of the party in11\nrelation to the matter with respect to which the12\nrepresentation was made; or13\n(b) when the representation was made, the person was an14\nemployee of the party, or had authority otherwise to act15\nfor the party, and the representation related to a matter16\nwithin the scope of the person’s employment or17\nauthority; or18\n(c) the representation was made by the person in19\nfurtherance of a common purpose (whether lawful or20\nnot) that the person had with the party or 1 or more21\npersons, including the party.22\n(2) For the purposes of this section, the hearsay rule does not apply23\nto a previous representation made by a person that tends to24\nprove —25\n(a) that the person had authority to make statements on26\nbehalf of another person in relation to a matter; or27\n(b) that the person was an employee of another person or28\nhad authority otherwise to act for another person; or29\n(c) the scope of the person’s employment or authority.30\nCompare:31\nEvidence Act 1995 (Commonwealth) s. 8732\n\nEvidence Bill 2025\nPart 3 Admissibility of evidence\nDivision 4 Admissions\ns. 103\npage 80\n103. Proof of admissions1\nFor the purpose of determining under another provision of this2\nDivision whether evidence of an admission is admissible, the3\ncourt must find that a particular person made the admission if it4\nis reasonably open to find that the person made the admission.5\nCompare:6\nEvidence Act 1995 (Commonwealth) s. 887\n104. Criminal proceedings: evidence of silence8\n(1) In this section —9\ninference includes —10\n(a) an inference of consciousness of guilt; or11\n(b) an inference relevant to a party’s credibility.12\n(2) In a criminal proceeding, an inference unfavourable to a party13\nmust not be drawn from evidence that the party or another14\nperson did not —15\n(a) answer 1 or more questions put to the party or other16\nperson by an investigating official who, at that time, was17\nperforming functions in connection with the18\ninvestigation of the commission, or possible19\ncommission, of an offence; or20\n(b) respond to a representation made to the party or other21\nperson by an investigating official who, at that time, was22\nperforming functions in connection with the23\ninvestigation of the commission, or possible24\ncommission, of an offence.25\n(3) Evidence that the party or person did not answer the question or26\nrespond to the representation is not admissible if it can only be27\nused to draw the unfavourable inference.28\n(4) Subsection (2) does not prevent use of the evidence to prove29\nthat the party or other person failed or refused to answer the30\n\nEvidence Bill 2025\nAdmissibility of evidence Part 3\nEvidence of judgments and convictions Division 5\ns. 105\npage 81\nquestion or to respond to the representation if the failure or1\nrefusal is a fact in issue in the proceeding.2\nCompare:3\nEvidence Act 1995 (Commonwealth) s. 894\n105. Criminal proceedings: discretion to exclude admissions5\nIn a criminal proceeding, the court may refuse to admit evidence6\nof an admission, or refuse to admit the evidence to prove a7\nparticular fact, if —8\n(a) the evidence is adduced by the prosecution; and9\n(b) having regard to the circumstances in which the10\nadmission was made, it would be unfair to an accused to11\nuse the evidence.12\nCompare:13\nEvidence Act 1995 (Commonwealth) s. 9014\n106. Criminal investigation rules about admissions not affected15\nThis Division does not affect the operation of the Criminal16\nInvestigation Act 2006 Part 11.17\nDivision 5 — Evidence of judgments and convictions18\n107. Exclusion of evidence of judgments and convictions19\n(1) Evidence of the decision, or of a finding of fact, in an Australian20\nor overseas proceeding is not admissible to prove the existence21\nof a fact that was in issue in that proceeding.22\n(2) Evidence that, under this Division, is not admissible to prove23\nthe existence of a fact must not be used to prove that fact even if24\nit is relevant for another purpose.25\nCompare:26\nEvidence Act 1995 (Commonwealth) s. 9127\n\nEvidence Bill 2025\nPart 3 Admissibility of evidence\nDivision 5 Evidence of judgments and convictions\ns. 108\npage 82\n108. Exceptions1\n(1) Section 107(1) does not prevent the admission or use of2\nevidence of the grant of probate, letters of administration or a3\nsimilar order of a court to prove —4\n(a) the death, or date of death, of a person; or5\n(b) the due execution of a testamentary document.6\n(2) In a criminal proceeding, section 107(1) does not prevent the7\nadmission or use of evidence of a person’s conviction of an8\noffence to prove the material facts comprising the elements of9\nthe offence of which the person was convicted.10\n(3) Subsection (2) does not apply to a conviction for an offence —11\n(a) in respect of which a review or appeal (however12\ndescribed) has been instituted but not finally13\ndetermined; or14\n(b) that has been quashed or set aside.15\n(4) In a civil proceeding, section 107(1) does not prevent the16\nadmission or use of evidence that a party, or a person through or17\nunder whom a party claims, has been convicted of an offence.18\n(5) Subsection (4) does not apply to a conviction for an offence —19\n(a) in respect of which a review or appeal (however20\ndescribed) has been instituted but not finally21\ndetermined; or22\n(b) that has been quashed or set aside; or23\n(c) in respect of which a pardon has been given.24\n(6) The hearsay rule and the opinion rule do not apply to evidence25\nof a kind referred to in this section.26\nCompare:27\nEvidence Act 1995 (Commonwealth) s. 9228\n\nEvidence Bill 2025\nAdmissibility of evidence Part 3\nTendency and coincidence Division 6\ns. 109\npage 83\n109. Savings1\nThis Division does not affect the operation of —2\n(a) a law that relates to the admissibility or effect of3\nevidence of a conviction tendered in a proceeding4\n(including a criminal proceeding) for defamation; or5\n(b) a judgment in rem; or6\n(c) the law relating to res judicata or issue estoppel.7\nCompare:8\nEvidence Act 1995 (Commonwealth) s. 939\nDivision 6 — Tendency and coincidence10\n110. Application of Division11\n(1) This Division does not apply to evidence that relates only to the12\ncredibility of a witness.13\n(2) This Division does not apply to any part of a proceeding that14\nrelates to bail or sentencing.15\n(3) This Division does not apply to evidence of the character,16\nreputation or conduct of a person, or a tendency that a person17\nhas or had, if that character, reputation, conduct or tendency is a18\nfact in issue.19\n(4) Any principle or rule of common law or equity that prevents or20\nrestricts the admissibility of evidence about propensity or21\nsimilar fact evidence in a proceeding is not relevant when22\napplying this Division to tendency evidence or coincidence23\nevidence about a party.24\n(5) In determining the probative value of tendency evidence or25\ncoincidence evidence for the purposes of26\nsection 113(1)(b), 114(5), 115(1)(b) or 118(2), it is not open to27\n\nEvidence Bill 2025\nPart 3 Admissibility of evidence\nDivision 6 Tendency and coincidence\ns. 111\npage 84\nthe court to have regard to the possibility that the evidence may1\nbe the result of collusion, concoction or contamination.2\nCompare:3\nEvidence Act 1995 (New South Wales) s. 944\n111. Use of evidence for other purposes5\n(1) Evidence that under this Division is not admissible to prove a6\nparticular matter must not be used to prove that matter even if it7\nis relevant for another purpose.8\n(2) Evidence that under this Division cannot be used against a party9\nto prove a particular matter must not be used against the party to10\nprove that matter even if it is relevant for another purpose.11\nCompare:12\nEvidence Act 1995 (New South Wales) s. 9513\n112. Failure to act14\nA reference in this Division to doing an act includes a reference15\nto failing to do that act.16\nCompare:17\nEvidence Act 1995 (New South Wales) s. 9618\n113. Tendency rule19\n(1) Evidence of the character, reputation or conduct of a person, or20\na tendency that a person has or had, is not admissible to prove21\nthat a person has or had a tendency (whether because of the22\nperson’s character or otherwise) to act in a particular way, or to23\nhave a particular state of mind unless —24\n(a) the party seeking to adduce the evidence gave25\nreasonable notice in writing to each other party of the26\nparty’s intention to adduce the evidence; and27\n\nEvidence Bill 2025\nAdmissibility of evidence Part 3\nTendency and coincidence Division 6\ns. 114\npage 85\n(b) the court thinks that the evidence will, either by itself or1\nhaving regard to other evidence adduced or to be2\nadduced by the party seeking to adduce the evidence,3\nhave significant probative value.4\n(2) Subsection (1)(a) does not apply if —5\n(a) the evidence is adduced in accordance with any6\ndirections made by the court under section 117(1); or7\n(b) the evidence is adduced to explain or contradict8\ntendency evidence adduced by another party.9\nNote for this section:10\nThe tendency rule is subject to specific exceptions concerning11\ncharacter of and expert opinion about accused persons (see12\nsections 129 and 130). Other provisions of this Act, or of other laws,13\nmay operate as further exceptions.14\nCompare:15\nEvidence Act 1995 (New South Wales) s. 9716\n114. Admissibility of tendency evidence in proceeding involving17\nchild sexual offence18\n(1) In this section —19\nchild sexual offence —20\n(a) means each of the following (however described and21\nregardless of when it occurred) —22\n(i) a sexual offence against, or arising under, a law23\nof this State involving a complainant who was a24\nchild at the time of the offence;25\n(ii) an offence against, or arising under, a law of this26\nState involving an unlawful sexual act with, or27\ndirected towards, a person who was a child at the28\ntime of the offence;29\n\nEvidence Bill 2025\nPart 3 Admissibility of evidence\nDivision 6 Tendency and coincidence\ns. 114\npage 86\n(iii) an offence of attempting to commit, conspiring1\nwith another person to commit, inciting another2\nperson to commit or attempting to procure3\nanother person to commit, an offence referred to4\nin subparagraph (i) or (ii);5\n(iv) an offence against, or arising under, a law of the6\nCommonwealth, another State, a Territory or a7\nforeign country that, if committed in this State,8\nwould have been an offence of a kind referred to9\nin subparagraph (i), (ii) or (iii);10\nbut11\n(b) does not include conduct of a person that has ceased to12\nbe an offence against, or arising under, a law of this13\nState since the time when the person engaged in the14\nconduct.15\n(2) This section applies to a criminal proceeding in which the16\ncommission by the accused of an act that constitutes, or may17\nconstitute, a child sexual offence is a fact in issue.18\n(3) It is presumed that the following tendency evidence about the19\naccused will have significant probative value for the purposes of20\nsections 113(1)(b) and 118(2) —21\n(a) tendency evidence about the sexual interest the accused22\nhas or had in children (even if the accused has not acted23\non the interest);24\n(b) tendency evidence about the accused acting on a sexual25\ninterest the accused has or had in children.26\n(4) Subsection (3) applies whether or not the sexual interest or act27\nto which the tendency evidence relates was directed at a28\ncomplainant in the proceeding, any other child or children29\ngenerally.30\n(5) Despite subsection (3), the court may determine that the31\ntendency evidence does not have significant probative value if it32\nis satisfied that there are sufficient grounds to do so.33","sortOrder":8},{"sectionNumber":"retrieval-0010","sectionType":"document_chunk","heading":"Document excerpt 10","content":"Evidence Bill 2025\nAdmissibility of evidence Part 3\nTendency and coincidence Division 6\ns. 114\npage 87\n(6) The following matters (whether considered individually or in1\ncombination) are not to be taken into account when determining2\nwhether there are sufficient grounds for the purposes of3\nsubsection (5) unless the court considers there are exceptional4\ncircumstances in relation to those matters (whether considered5\nindividually or in combination) to warrant taking them into6\naccount —7\n(a) the sexual interest or act to which the tendency evidence8\nrelates (the tendency sexual interest or act) is different9\nfrom the sexual interest or act alleged in the proceeding10\n(the alleged sexual interest or act);11\n(b) the circumstances in which the tendency sexual interest12\nor act occurred are different from circumstances in13\nwhich the alleged sexual interest or act occurred;14\n(c) the personal characteristics of the subject of the15\ntendency sexual interest or act (for example, the16\nsubject’s age, sex or gender) are different to those of the17\nsubject of the alleged sexual interest or act;18\n(d) the relationship between the accused and the subject of19\nthe tendency sexual interest or act is different from the20\nrelationship between the accused and the subject of the21\nalleged sexual interest or act;22\n(e) the period of time between the occurrence of the23\ntendency sexual interest or act and the occurrence of the24\nalleged sexual interest or act;25\n(f) the tendency sexual interest or act and alleged sexual26\ninterest or act do not share distinctive or unusual27\nfeatures;28\n(g) the level of generality of the tendency to which the29\ntendency evidence relates.30\nCompare:31\nEvidence Act 1995 (New South Wales) s. 97A32\n\nEvidence Bill 2025\nPart 3 Admissibility of evidence\nDivision 6 Tendency and coincidence\ns. 115\npage 88\n115. Coincidence rule1\n(1) Evidence that 2 or more events occurred is not admissible to2\nprove that a person did a particular act or had a particular state3\nof mind on the basis that, having regard to any similarities in the4\nevents or the circumstances in which they occurred, or any5\nsimilarities in both the events and the circumstances in which6\nthey occurred, it is improbable that the events occurred7\ncoincidentally unless —8\n(a) the party seeking to adduce the evidence gave9\nreasonable notice in writing to each other party of the10\nparty’s intention to adduce the evidence; and11\n(b) the court thinks that the evidence will, either by itself or12\nhaving regard to other evidence adduced or to be13\nadduced by the party seeking to adduce the evidence,14\nhave significant probative value.15\n(2) Subsection (1) includes the use of evidence from 2 or more16\nwitnesses claiming they are victims of offences committed by a17\nperson who is an accused in a criminal proceeding to prove, on18\nthe basis of similarities in the claimed acts or the circumstances19\nin which they occurred, that the accused did an act in issue in20\nthe proceeding.21\n(3) Subsection (1)(a) does not apply if —22\n(a) the evidence is adduced in accordance with any23\ndirections made by the court under section 117(2); or24\n(b) the evidence is adduced to explain or contradict25\ncoincidence evidence adduced by another party.26\nCompare:27\nEvidence Act 1995 (New South Wales) s. 9828\n\nEvidence Bill 2025\nAdmissibility of evidence Part 3\nTendency and coincidence Division 6\ns. 116\npage 89\n116. Requirements for notices1\nNotices given under section 113(1)(a) or 115(1)(a) must be2\ngiven in accordance with any regulations or rules of court made3\nfor the purposes of this section.4\nCompare:5\nEvidence Act 1995 (New South Wales) s. 996\n117. Court may dispense with notice requirements7\n(1) A court may, on the application of a party, direct that the8\ntendency rule is not to apply to particular tendency evidence9\ndespite the party’s failure to give notice under section 113(1)(a).10\n(2) A court may, on the application of a party, direct that the11\ncoincidence rule is not to apply to particular coincidence12\nevidence despite the party’s failure to give notice under13\nsection 115(1)(a).14\n(3) An application under subsection (1) or (2) may be made either15\nbefore or after the time by which the party would, apart from16\nthis section, be required to give, or to have given, the notice.17\n(4) In a civil proceeding, a party’s application may be made without18\nnotice of it having been given to 1 or more of the other parties.19\n(5) A direction under subsection (1) or (2) —20\n(a) is subject to any conditions the court thinks fit; and21\n(b) may be given either at or before the hearing.22\n(6) Without limiting the court’s power to impose conditions on the23\ndirection, those conditions may include 1 or more of the24\nfollowing —25\n(a) a condition that the party give notice of its intention to26\nadduce the evidence to a specified party, or to each other27\nparty other than a specified party;28\n\nEvidence Bill 2025\nPart 3 Admissibility of evidence\nDivision 6 Tendency and coincidence\ns. 118\npage 90\n(b) a condition that the party give that notice only in respect1\nof specified tendency evidence, or all tendency evidence2\nthat the party intends to adduce other than specified3\ntendency evidence;4\n(c) a condition that the party give that notice only in respect5\nof specified coincidence evidence, or all coincidence6\nevidence that the party intends to adduce other than7\nspecified coincidence evidence.8\nCompare:9\nEvidence Act 1995 (New South Wales) s. 10010\n118. Further restrictions on tendency evidence and coincidence11\nevidence adduced by prosecution12\n(1) This section only applies to a criminal proceeding and applies in13\naddition to sections 113 and 115.14\n(2) Tendency evidence about an accused, or coincidence evidence15\nabout an accused, that is adduced by the prosecution cannot be16\nused against the accused unless the probative value of the17\nevidence outweighs the danger of unfair prejudice to the18\naccused.19\n(3) This section does not apply to tendency evidence that the20\nprosecution adduces to explain or contradict tendency evidence21\nadduced by the accused.22\n(4) This section does not apply to coincidence evidence that the23\nprosecution adduces to explain or contradict coincidence24\nevidence adduced by the accused.25\nCompare:26\nEvidence Act 1995 (New South Wales) s. 10127\n\nEvidence Bill 2025\nAdmissibility of evidence Part 3\nCredibility Division 7\ns. 119\npage 91\nDivision 7 — Credibility1\nSubdivision 1 — Preliminary2\n119. Term used: credibility evidence3\nIn this Division —4\ncredibility evidence, in relation to a witness or other person,5\nmeans evidence relevant to the credibility of the witness or6\nperson that —7\n(a) is relevant only because it affects the assessment of the8\ncredibility of the witness or person; or9\n(b) is relevant —10\n(i) because it affects the assessment of the11\ncredibility of the witness or person; and12\n(ii) for some other purpose for which it is not13\nadmissible, or cannot be used, because of a14\nprovision of Divisions 2 to 6.15\nNote for this section:16\nThis section relates to the decision of the High Court of Australia in17\nAdam v The Queen (2001) 207 CLR 96.18\nCompare:19\nEvidence Act 1995 (Commonwealth) s. 101A20\nSubdivision 2 — Credibility of witnesses21\n120. Credibility rule22\nCredibility evidence about a witness is not admissible.23\nCompare:24\nEvidence Act 1995 (Commonwealth) s. 10225\n121. Exception: cross-examination as to credibility26\n(1) The credibility rule does not apply to evidence adduced in27\ncross-examination of a witness (including the contents of a28\ndocument tendered in cross-examination of a witness) if the29\n\nEvidence Bill 2025\nPart 3 Admissibility of evidence\nDivision 7 Credibility\ns. 122\npage 92\nevidence could substantially affect the assessment of the1\ncredibility of the witness.2\n(2) Without limiting the matters to which the court may have regard3\nfor the purposes of subsection (1), it must have regard to —4\n(a) whether the evidence tends to prove that the witness5\nmade a false representation when —6\n(i) the witness was under an obligation to tell the7\ntruth; and8\n(ii) the witness knew, or ought to have known, that9\nthe representation was false;10\nand11\n(b) the period that has elapsed since the acts or events to12\nwhich the evidence relates were done or occurred.13\nCompare:14\nEvidence Act 1995 (Commonwealth) s. 10315\n122. Further protections: cross-examination of accused16\n(1) This section applies only to credibility evidence in a criminal17\nproceeding and applies in addition to section 121.18\n(2) An accused must not be cross-examined about a matter that is19\nrelevant to the assessment of the accused’s credibility unless the20\ncourt gives leave.21\n(3) Despite subsection (2), leave is not required for22\ncross-examination by the prosecutor about whether the23\naccused —24\n(a) is biased or has a motive to be untruthful; or25\n(b) is, or was, unable to be aware of or recall matters to26\nwhich the accused’s evidence relates; or27\n(c) has made a prior inconsistent statement.28\n\nEvidence Bill 2025\nAdmissibility of evidence Part 3\nCredibility Division 7\ns. 123\npage 93\n(4) Leave must not be given for cross-examination by the1\nprosecutor under subsection (2) unless evidence adduced by the2\naccused has been admitted that —3\n(a) tends to prove that a witness called by the prosecutor has4\na tendency to be untruthful; and5\n(b) is relevant solely or mainly to the witness’s credibility.6\n(5) A reference in subsection (4) to evidence does not include a7\nreference to evidence of conduct in relation to —8\n(a) the events the subject of the prosecution; or9\n(b) the investigation of the offence for which the accused is10\nbeing prosecuted.11\n(6) Leave must not be given for cross-examination by a co-accused12\nunder subsection (2) unless —13\n(a) the evidence that the accused to be cross-examined has14\ngiven includes evidence adverse to the accused seeking15\nleave to cross-examine; and16\n(b) that evidence has been admitted.17\nCompare:18\nEvidence Act 1995 (Commonwealth) s. 10419\n123. Exception: rebutting denials by other evidence20\n(1) The credibility rule does not apply to evidence that is relevant to21\na witness’s credibility and that is adduced otherwise than from22\nthe witness if —23\n(a) the substance of the evidence was put to the witness in24\ncross-examination of the witness and the witness denied,25\nor did not admit or agree to, the substance of the26\nevidence; and27\n(b) the court gives leave to adduce the evidence.28\n(2) Leave under subsection (1)(b) is not required if the evidence29\ntends to prove that the witness —30\n(a) is biased or has a motive for being untruthful; or31\n\nEvidence Bill 2025\nPart 3 Admissibility of evidence\nDivision 7 Credibility\ns. 124\npage 94\n(b) has been convicted of an offence, including an offence1\nagainst the law of a foreign country; or2\n(c) has made a prior inconsistent statement; or3\n(d) is, or was, unable to be aware of matters to which the4\nwitness’s evidence relates; or5\n(e) has made a false representation while under an6\nobligation, imposed by or under an Australian law or a7\nlaw of a foreign country, to tell the truth and the witness8\nknew, or ought to have known, that the representation9\nwas false.10\nCompare:11\nEvidence Act 1995 (Commonwealth) s. 10612\n124. Exception: re-establishing credibility13\n(1) The credibility rule does not apply to evidence adduced in14\nre-examination of a witness.15\n(2) The credibility rule does not apply to evidence of a prior16\nconsistent statement of a witness if —17\n(a) evidence of a prior inconsistent statement of the witness18\nhas been admitted; or19\n(b) it is or will be suggested (either expressly or by20\nimplication) that evidence given by the witness has been21\nfabricated or reconstructed (whether deliberately or22\notherwise) or is the result of a suggestion.23\n(3) Subsection (2) applies only if the court gives leave to adduce the24\nevidence of the prior consistent statement.25\nCompare:26\nEvidence Act 1995 (Commonwealth) s. 10827\n\nEvidence Bill 2025\nAdmissibility of evidence Part 3\nCredibility Division 7\ns. 125\npage 95\nSubdivision 3 — Credibility of persons who are not witnesses1\n125. Admissibility of evidence of credibility of person who has2\nmade previous representation3\n(1) Credibility evidence about a person who made a representation4\nand who has not been called, and will not be called, to give5\nevidence in the proceeding is not admissible unless —6\n(a) evidence of the representation has been admitted in the7\nproceeding; and8\n(b) the credibility evidence could substantially affect the9\nassessment of the person’s credibility.10\n(2) Without limiting the matters to which the court may have regard11\nfor the purposes of subsection (1), it must have regard to —12\n(a) whether the evidence tends to prove that the person who13\nmade the representation —14\n(i) made a false representation when the person was15\nunder an obligation to tell the truth; and16\n(ii) knew, or ought to have known, that the17\nrepresentation was false;18\nand19\n(b) the period that elapsed between the doing of the acts or20\nthe occurrence of the events to which the representation21\nrelated and the making of the representation.22\nCompare:23\nEvidence Act 1995 (Commonwealth) s. 108A24\n126. Further protections: previous representations of accused25\nwho is not witness26\n(1) This section applies only to a criminal proceeding and applies in27\naddition to section 125.28\n\nEvidence Bill 2025\nPart 3 Admissibility of evidence\nDivision 7 Credibility\ns. 126\npage 96\n(2) If the person referred to in section 125 is an accused, the1\ncredibility evidence is not admissible unless the court gives2\nleave.3\n(3) Despite subsection (2), leave is not required if the evidence is4\nabout whether the accused —5\n(a) is biased or has a motive to be untruthful; or6\n(b) is, or was, unable to be aware of or recall matters to7\nwhich the accused’s previous representation relates; or8\n(c) has made a prior inconsistent statement.9\n(4) The prosecution must not be given leave under subsection (2)10\nunless evidence adduced by the accused has been admitted11\nthat —12\n(a) tends to prove that a witness called by the prosecution13\nhas a tendency to be untruthful; and14\n(b) is relevant solely or mainly to the witness’s credibility.15\n(5) A reference in subsection (4) to evidence does not include a16\nreference to evidence of conduct in relation to —17\n(a) the events the subject of the prosecution; or18\n(b) the investigation of the offence for which the accused is19\nbeing prosecuted.20\n(6) A co-accused must not be given leave under subsection (2)21\nunless the previous representation of the accused that has been22\nadmitted includes evidence adverse to the co-accused.23\nCompare:24\nEvidence Act 1995 (Commonwealth) s. 108B25\n\nEvidence Bill 2025\nAdmissibility of evidence Part 3\nCredibility Division 7\ns. 127\npage 97\nSubdivision 4 — Persons with specialised knowledge1\n127. Exception: evidence of persons with specialised knowledge2\n(1) The credibility rule does not apply to evidence given by a3\nperson concerning the credibility of another witness if —4\n(a) the person has specialised knowledge based on the5\nperson’s training, study or experience; and6\n(b) the evidence is evidence of an opinion of the person7\nthat —8\n(i) is wholly or substantially based on that9\nknowledge; and10\n(ii) could substantially affect the assessment of the11\ncredibility of a witness;12\nand13\n(c) the court gives leave to adduce the evidence.14\n(2) Without limiting subsection (1) —15\n(a) a reference in that subsection to specialised knowledge16\nincludes a reference to specialised knowledge of child17\ndevelopment and child behaviour (including specialised18\nknowledge of the impact of sexual abuse on children19\nand their behaviour during and following the abuse); and20\n(b) a reference in that subsection to an opinion of a person21\nincludes, if the person has specialised knowledge of the22\nkind referred to in paragraph (a), a reference to an23\nopinion relating to either or both of the following —24\n(i) the development and behaviour of children25\ngenerally;26\n(ii) the development and behaviour of children who27\nhave been victims of sexual abuse.28\nCompare:29\nEvidence Act 1995 (Commonwealth) s. 108C30\n\nEvidence Bill 2025\nPart 3 Admissibility of evidence\nDivision 8 Character\ns. 128\npage 98\nDivision 8 — Character1\n128. Application of Division2\nThis Division applies only in a criminal proceeding.3\nCompare:4\nEvidence Act 1995 (Commonwealth) s. 1095\n129. Evidence about character of accused6\n(1) The hearsay rule, the opinion rule, the tendency rule and the7\ncredibility rule do not apply to evidence adduced by an accused8\nto prove (directly or by implication) that the accused is, either9\ngenerally or in a particular respect, a person of good character.10\n(2) If evidence adduced to prove (directly or by implication) that an11\naccused is generally a person of good character has been12\nadmitted, the hearsay rule, the opinion rule, the tendency rule13\nand the credibility rule do not apply to evidence adduced to14\nprove (directly or by implication) that the accused is not15\ngenerally a person of good character.16\n(3) If evidence adduced to prove (directly or by implication) that an17\naccused is a person of good character in a particular respect has18\nbeen admitted, the hearsay rule, the opinion rule, the tendency19\nrule and the credibility rule do not apply to evidence adduced to20\nprove (directly or by implication) that the accused is not a21\nperson of good character in that respect.22\nCompare:23\nEvidence Act 1995 (Commonwealth) s. 11024\n130. Evidence about character of co-accused25\n(1) The hearsay rule and the tendency rule do not apply to evidence26\nof an accused’s character if —27\n(a) the evidence is evidence of an opinion about the accused28\nadduced by a co-accused; and29","sortOrder":9},{"sectionNumber":"retrieval-0011","sectionType":"document_chunk","heading":"Document excerpt 11","content":"Evidence Bill 2025\nAdmissibility of evidence Part 3\nIdentification evidence Division 9\ns. 131\npage 99\n(b) the person whose opinion it is has specialised1\nknowledge based on the person’s training, study or2\nexperience; and3\n(c) the opinion is wholly or substantially based on that4\nknowledge.5\n(2) If the evidence has been admitted, the hearsay rule, the opinion6\nrule and the tendency rule do not apply to evidence adduced to7\nprove that the admitted evidence should not be accepted.8\nCompare:9\nEvidence Act 1995 (Commonwealth) s. 11110\n131. Leave required to cross-examine about character of accused11\nAn accused must not be cross-examined about matters arising12\nout of evidence of a kind referred to in this Division unless the13\ncourt gives leave.14\nCompare:15\nEvidence Act 1995 (Commonwealth) s. 11216\nDivision 9 — Identification evidence17\n132. Application of Division18\nThis Division applies only in a criminal proceeding.19\nCompare:20\nEvidence Act 1995 (Commonwealth) s. 11321\n133. Terms used22\nIn this Division —23\nidentification evidence means evidence that is an assertion, or a24\nreport (whether oral or in writing) of an assertion, made by a25\nperson, being an assertion —26\n(a) to the effect that an accused was, or resembles (visually,27\naurally or otherwise), a person who —28\n\nEvidence Bill 2025\nPart 3 Admissibility of evidence\nDivision 9 Identification evidence\ns. 134\npage 100\n(i) was present at or near a place where the offence1\nfor which the accused is being prosecuted was2\ncommitted at or about the time at which the3\noffence was committed; or4\n(ii) was present at or near a place where an act5\nconnected to that offence was done at or about6\nthe time at which the act was done;7\nand8\n(b) that is based wholly or partly on what the person making9\nthe assertion saw, heard or otherwise perceived at that10\nplace and time;11\nidentification record means an image or any other document12\nthat includes, or could be used to produce, images or sounds that13\ncould be used to identify a person;14\npolice-assisted identification evidence means identification15\nevidence relating to an identification made wholly or partly by a16\nperson who made the identification using identification records17\nprovided by police.18\nCompare:19\nEvidence Act 1995 (Commonwealth) s. 115 and Dictionary Part 120\n134. Exclusion of certain police-assisted identification evidence21\n(1) Police-assisted identification evidence adduced by the22\nprosecutor is not admissible if the identification records used23\nsuggest that they are identification records of persons in24\ncustody.25\n(2) If police-assisted identification evidence adduced by the26\nprosecutor is admitted into evidence, the judge must give the27\nfollowing direction to the jury —28\n(a) if the identification record of the accused was made after29\nthe accused was taken into custody — a direction30\ninforming the jury that the identification record was31\nmade after the accused was taken into that custody;32\n\nEvidence Bill 2025\nAdmissibility of evidence Part 3\nIdentification evidence Division 9\ns. 135\npage 101\n(b) otherwise — a direction warning the jury that they must1\nnot assume that the accused has a criminal record or has2\npreviously been charged with an offence solely because3\nthe identification was made using identification records4\nprovided by police.5\n(3) The judge must give a direction under subsection (2) unless6\nsatisfied that there is good reason for not giving that direction.7\n(4) The judge must state the reason for refusing to give a direction8\nunder subsection (2) if the direction is requested by the accused.9\n(5) This section does not render inadmissible police-assisted10\nidentification evidence adduced by the prosecutor that11\ncontradicts or qualifies police-assisted identification evidence12\nadduced by the accused.13\nCompare:14\nEvidence Act 1995 (Commonwealth) s. 11515\n135. Directions to jury16\n(1) If identification evidence has been admitted, the judge must17\ninform the jury —18\n(a) that there is a special need for caution before accepting19\nidentification evidence; and20\n(b) of the reasons for that need for caution, both generally21\nand in the circumstances of the case.22\n(2) It is not necessary that a particular form of words be used in23\ninforming the jury.24\nCompare:25\nEvidence Act 1995 (Commonwealth) s. 11626\n\nEvidence Bill 2025\nPart 3 Admissibility of evidence\nDivision 10 Evidence of family violence\ns. 136\npage 102\nDivision 10 — Evidence of family violence1\nSubdivision 1 — Preliminary2\n136. Terms used3\nIn this Division —4\nfamily member has the meaning given in the Restraining5\nOrders Act 1997 section 4(3);6\nhelp-seeking behaviour —7\n(a) means any action undertaken by a victim of family8\nviolence to address, or attempt to address, any aspect of9\nthe family violence; and10\n(b) includes reporting the family violence to the police,11\nobtaining a restraining order, finding accommodation in12\na refuge, separating from an abusive person, or seeking13\ncounselling or external support;14\nsafety option, in relation to an accused who is (or may be) a15\nvictim of family violence, means an act that may have stopped16\nthe violence, other than an act that constitutes (or allegedly17\nconstitutes) an offence with which the accused is charged.18\nCompare:19\nEvidence Act 1906 s. 3720\n137. What may constitute evidence of family violence21\n(1) For the purposes of this Division, evidence of family violence,22\nin relation to a person, includes (but is not limited to) evidence23\nof any of the following —24\n(a) the history of the relationship between the person and a25\nfamily member, including violence by the family26\nmember towards the person, or by the person towards27\nthe family member, or by the family member of the28\nperson in relation to any other family member;29\n\nEvidence Bill 2025\nAdmissibility of evidence Part 3\nEvidence of family violence Division 10\ns. 137\npage 103\n(b) the cumulative effect of family violence, including the1\npsychological effect, on the person or a family member2\naffected by that violence;3\n(c) social, cultural or economic factors that impact on the4\nperson or a family member who has been affected by5\nfamily violence;6\n(d) responses by family, community or agencies to family7\nviolence, including further violence that may be used by8\na family member to prevent, or in retaliation to,9\nhelp-seeking behaviour or use of safety options by the10\nperson;11\n(e) ways in which social, cultural, economic or personal12\nfactors have affected any help-seeking behaviour13\nundertaken by the person, or the safety options14\nrealistically available to the person, in response to15\nfamily violence;16\n(f) ways in which violence by the family member towards17\nthe person, or the lack of safety options, were18\nexacerbated by inequities experienced by the person,19\nincluding inequities associated with (but not limited to)20\nrace, poverty, sex, gender, disability or age;21\n(g) the general nature and dynamics of relationships22\naffected by family violence, including the possible23\nconsequences of separation from a person who commits24\nfamily violence;25\n(h) the psychological effect of family violence on people26\nwho are or have been in a relationship affected by27\nfamily violence;28\n(i) social or economic factors that impact on people who29\nare or have been in a relationship affected by family30\nviolence.31\n\nEvidence Bill 2025\nPart 3 Admissibility of evidence\nDivision 10 Evidence of family violence\ns. 138\npage 104\n(2) Subsection (1) does not affect the operation of the Restraining1\nOrders Act 1997 section 5A(2).2\nCompare:3\nEvidence Act 1906 s. 384\nSubdivision 2 — Admissibility of evidence of family violence5\n138. Expert evidence of family violence6\n(1) In this section —7\nexpert, on the subject of family violence, means a person who8\nhas specialised knowledge, based on training, study or9\nexperience, on the subject of family violence (including any10\nmatter that may constitute evidence of family violence).11\n(2) This section applies to any proceeding in which evidence of12\nfamily violence is relevant to a fact in issue.13\n(3) The evidence of an expert on the subject of family violence is14\nadmissible in relation to any matter that may constitute evidence15\nof family violence.16\n(4) Evidence given by the expert may include —17\n(a) evidence about the nature and effects of family violence18\non any person; and19\n(b) evidence about the effect of family violence on a20\nparticular person who has been the subject of family21\nviolence.22\n(5) This section does not affect the operation of section 94 or 127.23\nCompare:24\nEvidence Act 1906 s. 3925\n\nEvidence Bill 2025\nAdmissibility of evidence Part 3\nEvidence of family violence Division 10\ns. 139\npage 105\n139. Evidence of family violence: general provision1\nEvidence of family violence is admissible if family violence is2\nrelevant to a fact in issue.3\nCompare:4\nEvidence Act 1906 s. 39A5\n140. Evidence of family violence: self-defence6\nWithout limiting any other evidence that may be adduced, in a7\ncriminal proceeding in which self-defence in response to family8\nviolence is an issue, evidence of family violence may be9\nrelevant to determining whether —10\n(a) a person has a belief that an act was necessary to defend11\nthe person or another person from a harmful act,12\nincluding a harmful act that was not imminent; or13\n(b) a person’s act was a reasonable response by the person14\nin the circumstances as the person believed them to be;15\nor16\n(c) there are reasonable grounds for a particular belief held17\nby a person.18\nCompare:19\nEvidence Act 1906 s. 39B20\nSubdivision 3 — Directions relating to family violence in criminal21\nproceedings22\n141. Request for direction on family violence: self-defence23\n(1) In a criminal proceeding before a jury in which self-defence in24\nresponse to family violence is an issue, the legal counsel acting25\nfor the accused (or, if the accused is unrepresented, the accused)26\nmay request at any time that the judge direct the jury on family27\nviolence in accordance with —28\n(a) section 143; and29\n(b) all or specified parts of section 144.30\n\nEvidence Bill 2025\nPart 3 Admissibility of evidence\nDivision 10 Evidence of family violence\ns. 142\npage 106\n(2) The judge must give a requested direction on family violence,1\nincluding all or specified parts of section 144 if requested,2\nunless satisfied there is good reason for not doing so.3\n(3) If a direction on family violence is not requested, the judge may4\ngive the direction if the judge considers that it is in the interests5\nof justice to do so.6\n(4) The judge —7\n(a) must give the direction as soon as practicable after the8\nrequest is made; and9\n(b) may give the direction before any evidence is adduced10\nin the proceeding.11\n(5) The judge may repeat a direction at any time during the12\nproceeding.13\nCompare:14\nEvidence Act 1906 s. 39C15\n142. Request for direction on family violence: general16\n(1) In a criminal proceeding before a jury in which family violence17\nis an issue, the prosecutor or the legal counsel acting for the18\naccused (or, if the accused is unrepresented, the accused) may19\nrequest at any time that the judge direct the jury on family20\nviolence in accordance with all or specified parts of section 144.21\n(2) The judge must give a requested direction on family violence,22\nincluding all or specified parts of section 144 if requested,23\nunless satisfied there is good reason for not doing so.24\n(3) If a direction on family violence is not requested, the judge may25\ngive the direction if the judge considers that it is in the interests26\nof justice to do so.27\n(4) The judge —28\n(a) must give the direction as soon as practicable after the29\nrequest is made; and30\n\nEvidence Bill 2025\nAdmissibility of evidence Part 3\nEvidence of family violence Division 10\ns. 143\npage 107\n(b) may give the direction before any evidence is adduced1\nin the proceeding.2\n(5) The judge may repeat a direction at any time during the3\nproceeding.4\nCompare:5\nEvidence Act 1906 s. 39D6\n143. Content of direction on family violence: self-defence7\nIn a direction under section 141, the judge must inform the jury8\nthat —9\n(a) self-defence is, or is likely to be, an issue in the trial;10\nand11\n(b) as a matter of law, evidence of family violence may be12\nrelevant to determining whether the accused acted in13\nself-defence; and14\n(c) evidence in the trial is likely to include evidence of15\nfamily violence committed by the victim against the16\naccused or another person whom the accused was17\ndefending.18\nCompare:19\nEvidence Act 1906 s. 39E20\n144. Content of direction on family violence: general21\n(1) In a direction under section 141 or 142, the judge may inform22\nthe jury of all or any of the following matters —23\n(a) that family violence —24\n(i) is not limited to physical abuse and may, for25\nexample, include sexual abuse, psychological26\nabuse or financial abuse; and27\n(ii) may amount to violence against a person even28\nthough it is immediately directed at another29\nperson; and30\n(iii) may consist of a single act; and31\n\nEvidence Bill 2025\nPart 3 Admissibility of evidence\nDivision 10 Evidence of family violence\ns. 144\npage 108\n(iv) may consist of separate acts that form part of a1\npattern of behaviour that can amount to abuse2\neven though some or all of those acts may, when3\nviewed in isolation, appear to be minor or trivial;4\n(b) if relevant, that experience shows that —5\n(i) people may react differently to family violence6\nand there is no typical, proper or normal7\nresponse to family violence; and8\n(ii) it is not uncommon for a person who has been9\nsubjected to family violence to stay with an10\nabusive partner after the onset of family11\nviolence, or to leave and then return to the12\npartner; and13\n(iii) it is not uncommon for a person who has been14\nsubjected to family violence not to report family15\nviolence to police or seek assistance to stop16\nfamily violence; and17\n(iv) decisions made by a person subjected to family18\nviolence about how to address, respond to or19\navoid family violence may be influenced by a20\nvariety of factors; and21\n(v) it is not uncommon for a decision to leave an22\nabusive partner, or to seek assistance, to increase23\napprehension about, or the actual risk of, harm;24\n(c) in the case of self-defence, that, as a matter of law,25\nevidence that the accused assaulted the victim on a26\nprevious occasion does not mean that the accused could27\nnot have been acting in self-defence in relation to the28\noffence charged.29\n(2) The judge may also indicate that behaviour, or patterns of30\nbehaviour, that may constitute family violence may include (but31\nare not limited to) the following —32\n(a) placing or keeping a person in a dependent or33\nsubordinate relationship;34\n\nEvidence Bill 2025\nAdmissibility of evidence Part 3\nEvidence of family violence Division 10\ns. 144\npage 109\n(b) isolating a person from family, friends or other sources1\nof support;2\n(c) controlling, regulating or monitoring a person’s3\nday-to-day activities;4\n(d) depriving or restricting a person’s freedom of movement5\nor action;6\n(e) restricting a person’s ability to resist violence;7\n(f) frightening, humiliating, degrading or punishing a8\nperson, including punishing a person for resisting9\nviolence;10\n(g) compelling a person to engage in unlawful or harmful11\nconduct.12\n(3) If the judge makes a direction that relates to13\nsubsection (1)(b)(iv), the judge may also indicate that decisions14\nmade by a person subjected to family violence about how to15\naddress, respond to or avoid family violence may be influenced16\nby matters such as the following —17\n(a) the family violence itself;18\n(b) social, cultural, economic or personal factors or19\ninequities experienced by the person, including20\ninequities associated with (but not limited to) race,21\npoverty, sex, gender, disability or age;22\n(c) responses by family, community or agencies to the23\nfamily violence or to any help-seeking behaviour or use24\nof safety options by the person;25\n(d) the provision of, or failure in the provision of, safety26\noptions that might realistically have provided ongoing27\nsafety to the person, and the person’s perceptions of how28\neffective those safety options might have been to29\nprevent further harm;30\n(e) further violence, or the threat of further violence, used31\nby a family member to prevent, or in retaliation to, any32\n\nEvidence Bill 2025\nPart 3 Admissibility of evidence\nDivision 10 Evidence of family violence\ns. 145\npage 110\nhelp-seeking behaviour or use of safety options by the1\nperson.2\nCompare:3\nEvidence Act 1906 s. 39F4\n145. Application to criminal proceeding without jury5\nIn a criminal proceeding in which there is no jury, the court’s6\nreasoning with respect to any matter for which a direction on7\nfamily violence makes provision must, to the extent that the8\ncourt thinks fit, be consistent with how a jury would have been9\ndirected in the particular case.10\nCompare:11\nEvidence Act 1906 s. 39G12\n146. Other directions may be given13\nThis Subdivision does not affect any other power of a judge to14\ngive a warning to, or to inform, the jury, including in relation to15\nevidence given by an expert witness.16\nNote for this section:17\nPart 8 Division 3 contains further provisions about warnings and18\ninformation that must or may be given to a jury.19\nCompare:20\nEvidence Act 1906 s. 39C(6) and 39D(6)21\nSubdivision 4 — Application to civil proceedings22\n147. Court may take into account family violence direction23\nmatters24\n(1) In this section —25\nfamily violence direction matter means a matter mentioned in26\nsection 144 that may be included in a direction on family27\nviolence in a criminal proceeding in which family violence is an28\nissue.29","sortOrder":10},{"sectionNumber":"retrieval-0012","sectionType":"document_chunk","heading":"Document excerpt 12","content":"Evidence Bill 2025\nAdmissibility of evidence Part 3\nEvidence of family violence Division 10\ns. 147\npage 111\n(2) In a civil proceeding in which family violence is an issue, the1\ncourt may treat any of the family violence direction matters that2\nare relevant to the proceeding as matters for which proof is not3\nrequired.4\n(3) This section does not prevent evidence being adduced of a5\nfamily violence direction matter.6\n\nEvidence Bill 2025\nPart 4 Privileges\nDivision 1 Client legal privilege\ns. 148\npage 112\nPart 4 — Privileges1\nDivision 1 — Client legal privilege2\n148. Terms used3\n(1) In this Division —4\nclient includes the following —5\n(a) a person or body who engages a legal representative to6\nprovide legal services or who employs a legal7\nrepresentative (including under a contract of service);8\n(b) an employee or agent of a client;9\n(c) an employer of a legal representative if the employer10\nis —11\n(i) the Commonwealth or a State or Territory; or12\n(ii) a body established by a law of the13\nCommonwealth or a State or Territory;14\n(d) if, under a law of a State or Territory relating to persons15\nwho lack capacity, a manager, committee or person16\n(however described) is for the time being acting in17\nrespect of the person, estate or property of a client — the18\nmanager, committee or person acting;19\n(e) if a client has died — a personal representative of the20\nclient;21\n(f) a successor to the rights and obligations of a client,22\nbeing rights and obligations in respect of which a23\nconfidential communication was made;24\nconfidential communication means a communication made in25\nsuch circumstances that, when it was made, either the person26\nwho made it or the person to whom it was made was under an27\nexpress or implied obligation not to disclose its contents,28\nwhether or not the obligation arises under law;29\nconfidential document means a document prepared in such30\ncircumstances that, when it was prepared, either the person who31\n\nEvidence Bill 2025\nPrivileges Part 4\nClient legal privilege Division 1\ns. 148\npage 113\nprepared it or the person for whom it was prepared was under an1\nexpress or implied obligation not to disclose its contents,2\nwhether or not the obligation arises under law;3\nlegal representative means —4\n(a) a lawyer; or5\n(b) an Australian-registered foreign lawyer (as defined in6\nthe Legal Profession Uniform Law (WA) section 6(1));7\nor8\n(c) a natural person who, under the law of a foreign country,9\nis permitted to engage in legal practice in the foreign10\ncountry; or11\n(d) an employee or agent of a person referred to in12\nparagraph (a), (b) or (c);13\nparty includes the following —14\n(a) an employee or agent of a party;15\n(b) if, under a law of a State or Territory relating to persons16\nwho lack capacity, a manager, committee or person17\n(however described) is for the time being acting in18\nrespect of the person, estate or property of a party — the19\nmanager, committee or person acting;20\n(c) if a party has died — a personal representative of the21\nparty;22\n(d) a successor to the rights and obligations of a party, being23\nrights and obligations in respect of which a confidential24\ncommunication was made.25\n(2) A reference in this Division to the commission of an act26\nincludes a reference to a failure to act.27\nCompare:28\nEvidence Act 1995 (Commonwealth) s. 11729\n\nEvidence Bill 2025\nPart 4 Privileges\nDivision 1 Client legal privilege\ns. 149\npage 114\n149. Legal advice1\n(1) Evidence must not be adduced if, on objection by a client, the2\ncourt finds that adducing the evidence would result in disclosure3\nof —4\n(a) a confidential communication made between the client5\nand a legal representative that is privileged under this6\nsection; or7\n(b) a confidential communication made between 2 or more8\nlegal representatives acting for the client that is9\nprivileged under this section; or10\n(c) the contents of a confidential document (whether11\ndelivered or not) prepared by the client, legal12\nrepresentative or another person, being a confidential13\ndocument that is privileged under this section.14\n(2) A confidential communication, or a confidential document, is15\nprivileged under this section if it was made or prepared for the16\ndominant purpose of the legal representative, or 1 or more of the17\nlegal representatives, providing legal advice to the client.18\nCompare:19\nEvidence Act 1995 (Commonwealth) s. 11820\n150. Litigation21\n(1) Evidence must not be adduced if, on objection by a client, the22\ncourt finds that adducing the evidence would result in disclosure23\nof —24\n(a) a confidential communication between the client and25\nanother person, or between a legal representative acting26\nfor the client and another person, that is privileged under27\nthis section; or28\n(b) the contents of a confidential document (whether29\ndelivered or not), being a confidential document that is30\nprivileged under this section.31\n\nEvidence Bill 2025\nPrivileges Part 4\nClient legal privilege Division 1\ns. 151\npage 115\n(2) A confidential communication, or a confidential document, is1\nprivileged under this section if it was made or prepared for the2\ndominant purpose of the client being provided with professional3\nlegal services relating to —4\n(a) an Australian or overseas proceeding (including the5\nproceeding before the court) in which the client is or6\nmay be, or was or might have been, a party; or7\n(b) an anticipated or pending Australian or overseas8\nproceeding in which the client is or may be, or was or9\nmight have been, a party.10\nCompare:11\nEvidence Act 1995 (Commonwealth) s. 11912\n151. Unrepresented parties13\n(1) Evidence must not be adduced if, on objection by a party who is14\nnot represented in the proceeding by a legal representative, the15\ncourt finds that adducing the evidence would result in disclosure16\nof —17\n(a) a confidential communication made between the party18\nand another person that is privileged under this section;19\nor20\n(b) the contents of a confidential document (whether21\ndelivered or not) that was prepared, either by or at the22\ndirection or request of, the party, being a confidential23\ndocument that is privileged under this section.24\n(2) A confidential communication, or a confidential document, is25\nprivileged under this section if it was made or prepared for the26\ndominant purpose of preparing for or conducting the27\nproceeding.28\nCompare:29\nEvidence Act 1995 (Commonwealth) s. 12030\n\nEvidence Bill 2025\nPart 4 Privileges\nDivision 1 Client legal privilege\ns. 152\npage 116\n152. Loss of client legal privilege: generally1\n(1) This Division does not prevent the adducing of evidence2\nrelevant to a question concerning the intentions, or competence3\nin law, of a client or party who has died.4\n(2) This Division does not prevent the adducing of evidence if,5\nwere the evidence not adduced, the court would be prevented, or6\nit could reasonably be expected that the court would be7\nprevented, from enforcing an order of an Australian court.8\n(3) This Division does not prevent the adducing of evidence of a9\ncommunication or document that affects a right of a person.10\nCompare:11\nEvidence Act 1995 (Commonwealth) s. 12112\n153. Loss of client legal privilege: consent and related matters13\n(1) This Division does not prevent the adducing of evidence given14\nwith the consent of the client or party concerned.15\n(2) This Division does not prevent the adducing of evidence if the16\nclient or party concerned has acted in a way that is inconsistent17\nwith the client or party objecting to the adducing of the evidence18\nbecause it would result in a disclosure of a kind referred to in19\nsection 149(1), 150(1) or 151(1).20\n(3) Without limiting subsection (2), a client or party is taken to21\nhave acted in a way that is inconsistent with objecting to the22\nadducing of the evidence if —23\n(a) the client or party knowingly and voluntarily disclosed24\nthe substance of the evidence to another person; or25\n(b) the substance of the evidence has been disclosed with26\nthe express or implied consent of the client or party.27\n(4) The reference in subsection (3)(a) to a knowing and voluntary28\ndisclosure does not include a reference to a disclosure by a29\nperson who was, at the time of the disclosure, an employee or30\nagent of the client or party or of a legal representative of the31\n\nEvidence Bill 2025\nPrivileges Part 4\nClient legal privilege Division 1\ns. 153\npage 117\nclient or party unless the employee or agent was authorised by1\nthe client, party or legal representative to make the disclosure.2\n(5) A client or party is not taken to have acted in a manner3\ninconsistent with the client or party objecting to the adducing of4\nthe evidence merely because —5\n(a) the substance of the evidence has been disclosed —6\n(i) in the course of making a confidential7\ncommunication or preparing a confidential8\ndocument; or9\n(ii) as a result of duress or deception; or10\n(iii) under compulsion of law; or11\n(iv) if the client or party is a body established by, or a12\nperson holding an office under, an Australian13\nlaw — to the Minister, or the Minister of the14\nCommonwealth, the State or Territory,15\nadministering the law, or part of the law, under16\nwhich the body is established or the office is17\nheld;18\nor19\n(b) of a disclosure by a client to another person if the20\ndisclosure concerns a matter in relation to which the21\nsame legal representative is providing, or is to provide,22\nprofessional legal services to both the client and the23\nother person; or24\n(c) of a disclosure to a person with whom the client or party25\nhad, at the time of the disclosure, a common interest26\nrelating to the proceeding or an anticipated or pending27\nproceeding in an Australian court or a foreign court.28\n(6) This Division does not prevent the adducing of evidence of a29\ndocument that a witness has used to try to revive the witness’s30\n\nEvidence Bill 2025\nPart 4 Privileges\nDivision 1 Client legal privilege\ns. 154\npage 118\nmemory about a fact or opinion or has used as mentioned in1\nsection 41 or 42.2\nCompare:3\nEvidence Act 1995 (Commonwealth) s. 1224\n154. Loss of client legal privilege: accused5\nIn a criminal proceeding, this Division does not prevent an6\naccused from adducing evidence unless it is evidence of —7\n(a) a confidential communication made between a8\nco-accused and a legal representative acting for the9\nco-accused in connection with the prosecution of that10\nco-accused; or11\n(b) the contents of a confidential document prepared by a12\nco-accused or by a legal representative acting for the13\nco-accused in connection with the prosecution of that14\nco-accused.15\nCompare:16\nEvidence Act 1995 (Commonwealth) s. 12317\n155. Loss of client legal privilege: joint clients18\n(1) This section only applies to a civil proceeding in connection19\nwith which 2 or more parties have, before the commencement of20\nthe proceeding, jointly retained a legal representative in relation21\nto the same matter.22\n(2) This Division does not prevent 1 of those parties from adducing23\nevidence of —24\n(a) a communication made by any of them to the legal25\nrepresentative in connection with that matter; or26\n(b) the contents of a confidential document prepared by or27\nat the direction or request of any of them in connection28\nwith that matter.29\nCompare:30\nEvidence Act 1995 (Commonwealth) s. 12431\n\nEvidence Bill 2025\nPrivileges Part 4\nClient legal privilege Division 1\ns. 156\npage 119\n156. Loss of client legal privilege: misconduct1\n(1) In this section —2\npower means a power conferred by or under an Australian law.3\n(2) This Division does not prevent the adducing of evidence of a4\ncommunication, or the contents of a document, made or5\nprepared by a client or legal representative (or both), or a party6\nwho is not represented in a proceeding by a legal representative,7\nif —8\n(a) the communication or document was made or prepared9\nin furtherance of the commission of a fraud or an10\noffence or the commission of an act that renders a11\nperson liable to a civil penalty; or12\n(b) the client or legal representative (or both), or the party,13\nknew or ought reasonably to have known that the14\ncommunication or document was made or prepared in15\nfurtherance of a deliberate abuse of power.16\n(3) If the commission of the fraud, offence or act, or the abuse of17\npower, is a fact in issue, the court may find that a18\ncommunication was made or a document was prepared in19\nfurtherance of the fraud, offence or act or the abuse of power20\nif there are reasonable grounds for finding that —21\n(a) the fraud, offence or act, or the abuse of power, was22\ncommitted; and23\n(b) the communication was made or the document was24\nprepared in furtherance of the commission of the fraud,25\noffence or act or the abuse of power.26\nCompare:27\nEvidence Act 1995 (Commonwealth) s. 12528\n157. Loss of client legal privilege: related communications and29\ndocuments30\nIf, because of the application of section 152, 153, 154, 15531\nor 156, this Division does not prevent the adducing of evidence32\n\nEvidence Bill 2025\nPart 4 Privileges\nDivision 2 Professional confidential relationship privilege\ns. 158\npage 120\nof a communication or the contents of a document, those1\nsections do not prevent the adducing of evidence of another2\ncommunication or document if it is reasonably necessary to3\nenable a proper understanding of the communication or4\ndocument.5\nExample for this section:6\nA legal representative advises a client to understate the client’s income7\nfor the previous year to evade taxation because of potential tax liability8\n“as set out in my previous letter to you dated 11 August 2019”. In a9\nproceeding against the taxpayer for tax evasion, evidence of the10\ncontents of the letter dated 11 August 2019 may be admissible (even if11\nthat letter would otherwise be privileged) to enable a proper12\nunderstanding of the second letter.13\nCompare:14\nEvidence Act 1995 (Commonwealth) s. 12615\nDivision 2 — Professional confidential relationship privilege16\n158. Terms used17\n(1) In this Division —18\nconfidant —19\n(a) means a person to whom a communication is made in20\nconfidence; and21\n(b) includes a journalist (as defined in section 179);22\nprotected confidence means a communication made by a person23\nin confidence to a confidant —24\n(a) in the course of a relationship in which the confidant25\nwas acting in a professional capacity; and26\n(b) when the confidant was under an express or implied27\nobligation not to disclose its contents, whether or not the28\nobligation arises under law or can be inferred from the29\nnature of the relationship between the person and the30\nconfidant;31\nprotected confider means a person who made a protected32\nconfidence;33\n\nEvidence Bill 2025\nPrivileges Part 4\nProfessional confidential relationship privilege Division 2\ns. 159\npage 121\nprotected identity information means information about, or1\nenabling a person to ascertain, the identity of a protected2\nconfider.3\n(2) For the purposes of this Division, if a person makes a4\ncommunication in confidence to a minister of religion acting in5\nthe minister’s capacity as a minister of religion and in6\naccordance with the tenets of the minister’s faith or religion, the7\ncommunication is made in the course of a relationship in which8\nthe minister is acting in a professional capacity.9\n(3) For the purposes of this Division, a communication may be10\nmade in confidence even if it is made in the presence of a third11\nparty if the third party’s presence is necessary to facilitate12\ncommunication.13\nCompare:14\nEvidence Act 1906 s. 20A15\n159. Exclusion of evidence of protected confidences16\n(1) A court may direct that evidence not be adduced in a proceeding17\nif the court finds that adducing it would disclose —18\n(a) a protected confidence; or19\n(b) the contents of a document recording a protected20\nconfidence; or21\n(c) protected identity information.22\n(2) The court may give a direction under subsection (1) —23\n(a) on its own initiative; or24\n(b) on the application of the protected confider or confidant25\nconcerned (whether or not either is a party).26\n(3) The court must give a direction under subsection (1) if satisfied27\nthat —28\n(a) it is likely that harm would or might be caused (whether29\ndirectly or indirectly) to a protected confider if the30\nevidence is adduced; and31","sortOrder":11},{"sectionNumber":"retrieval-0013","sectionType":"document_chunk","heading":"Document excerpt 13","content":"Evidence Bill 2025\nPart 4 Privileges\nDivision 2 Professional confidential relationship privilege\ns. 159\npage 122\n(b) the nature and extent of the harm outweighs the1\ndesirability of the evidence being given.2\n(4) Without limiting the matters that the court may take into3\naccount for the purposes of this section, the court must take into4\naccount the following matters —5\n(a) the probative value of the evidence in the proceeding;6\n(b) the importance of the evidence in the proceeding;7\n(c) the nature and gravity of the relevant offence, cause of8\naction or defence and the nature of the subject matter of9\nthe proceeding;10\n(d) the availability of any other evidence concerning the11\nmatters to which the protected confidence or protected12\nidentity information relates;13\n(e) the likely effect of adducing evidence of the protected14\nconfidence or protected identity information, including15\nthe likelihood of harm, and the nature and extent of16\nharm that would be caused to the protected confider;17\n(f) the means (including any ancillary orders that may be18\nmade under section 162) available to the court to limit19\nthe harm or extent of the harm that is likely to be caused20\nif evidence of the protected confidence or the protected21\nidentity information is disclosed;22\n(g) if the proceeding is a criminal proceeding — whether23\nthe party seeking to adduce evidence of the protected24\nconfidence or protected identity information is an25\naccused or the prosecutor;26\n(h) whether the substance of the protected confidence or the27\nprotected identity information has already been28\ndisclosed by the protected confider or any other person;29\n(i) the public interest in preserving the confidentiality of30\nprotected confidences;31\n(j) the public interest in preserving the confidentiality of32\nprotected identity information.33\n\nEvidence Bill 2025\nPrivileges Part 4\nProfessional confidential relationship privilege Division 2\ns. 160\npage 123\n(5) The court must state the reason for giving or refusing to give a1\ndirection under this section.2\nCompare:3\nEvidence Act 1906 s. 20C4\n160. Loss of professional confidential relationship privilege:5\nconsent6\nThis Division does not prevent the adducing of evidence given7\nwith the consent of the protected confider concerned.8\nCompare:9\nEvidence Act 1906 s. 20D10\n161. Loss of professional confidential relationship privilege:11\nmisconduct12\n(1) This Division does not prevent the adducing of evidence of a13\ncommunication made or the contents of a document prepared in14\nthe furtherance of the commission of a fraud or an offence or15\nthe commission of an act that renders a person liable to a civil16\npenalty.17\n(2) If the commission of the fraud, offence or act is a fact in issue,18\nthe court may find that the communication was made, or the19\ndocument was prepared, in furtherance of the commission of the20\nfraud, offence or act if there are reasonable grounds for finding21\nthat —22\n(a) the fraud, offence or act was committed; and23\n(b) the communication was made or the document was24\nprepared in furtherance of the commission of the fraud,25\noffence or act.26\nCompare:27\nEvidence Act 1995 (New South Wales) s. 126D28\n\nEvidence Bill 2025\nPart 4 Privileges\nDivision 3 Counselling communications relating to sexual offences\ns. 162\npage 124\n162. Ancillary orders1\nWithout limiting any action that the court may take to limit the2\npossible harm, or extent of the harm, likely to be caused by the3\ndisclosure of evidence of a protected confidence or protected4\nidentity information, the court may —5\n(a) order that all or part of the evidence be heard in private;6\nand7\n(b) make any order relating to the suppression of8\npublication of all or part of the evidence given before9\nthe court that, in its opinion, is necessary to protect the10\nsafety and welfare of the protected confider and is in the11\ninterests of justice.12\nCompare:13\nEvidence Act 1906 s. 20F14\n163. Relationship between this Division and other privileges15\n(1) This Division does not apply to a protected communication.16\n(2) However, a court may direct that evidence not be adduced under17\nthis Division whether or not the evidence is privileged under18\nanother section of this Part or would be privileged except for a19\nlimitation or restriction imposed by that section.20\nCompare:21\nEvidence Act 1906 s. 20B(3) and (6)22\nDivision 3 — Counselling communications relating to sexual23\noffences24\n164. Terms used25\n(1) In this Division —26\ncounselling communication has the meaning given in27\nsection 165(2);28\ncounsels has the meaning given in section 165(4);29\n\nEvidence Bill 2025\nPrivileges Part 4\nCounselling communications relating to sexual offences Division 3\ns. 165\npage 125\ndiscloses, in relation to a protected communication, has the1\nmeaning given in section 166(2);2\nprotected person, in relation to a protected communication,3\nmeans —4\n(a) the sexual offence complainant; or5\n(b) any person who made the protected communication; or6\n(c) an interpreter through whom the protected7\ncommunication was made;8\nrequire disclosure, of a protected communication, has the9\nmeaning given in section 166(3);10\nsupporting affidavit has the meaning given in section 167(1)(b);11\nsupport person, for a complainant, means a parent, carer or12\nother supportive person who is present when a person counsels13\nthe complainant to facilitate communication between the14\ncomplainant and the counsellor or to further the counselling15\nprocess in some other way.16\n(2) In this Division, a reference to a document recording a protected17\ncommunication includes a reference to a document recording18\nany report, observation, opinion, advice, recommendation or19\nother matter that relates to a protected communication made by20\na protected person.21\nCompare:22\nEvidence Act 1906 s. 19A and 19B23\n165. Counselling communications that are protected24\ncommunications25\n(1) A counselling communication that is made by, to or about a26\nsexual offence complainant is a protected communication.27\n(2) Each of the following is a counselling communication —28\n(a) a communication made in confidence by a sexual29\noffence complainant to another person (the counsellor)30\nwho is counselling the complainant in relation to any31\nharm the complainant may have suffered;32\n\nEvidence Bill 2025\nPart 4 Privileges\nDivision 3 Counselling communications relating to sexual offences\ns. 165\npage 126\n(b) a communication made in confidence to or about a1\nsexual offence complainant by the counsellor in the2\ncourse of the counselling process;3\n(c) a communication made in confidence about a sexual4\noffence complainant by a support person in the course of5\nthe counselling process;6\n(d) a communication made in confidence by or to the7\ncounsellor to or by another person who is counselling, or8\nhas at any time counselled, a sexual offence9\ncomplainant.10\n(3) For the purposes of subsection (2), a communication can be11\nregarded as being made in confidence even if it is made in the12\npresence or with the assistance of a support person or an13\ninterpreter.14\n(4) A person counsels another person if —15\n(a) the person has undertaken training or study or has16\nexperience that is relevant to the process of counselling17\npersons who have suffered harm; and18\n(b) the person does any of the following, whether or not for19\nfee or reward —20\n(i) listens to and gives verbal or other support or21\nencouragement to the other person;22\n(ii) advises, gives therapy to or treats the other23\nperson.24\n(5) This section extends to a counselling communication —25\n(a) whether it was made before or after the commission, or26\nalleged commission, of a sexual offence; and27\n(b) whether or not it was made in connection with a sexual28\noffence or an alleged sexual offence or any condition29\narising from a sexual offence or alleged sexual offence;30\nand31\n\nEvidence Bill 2025\nPrivileges Part 4\nCounselling communications relating to sexual offences Division 3\ns. 166\npage 127\n(c) whether it was made before, on or after the day on1\nwhich this section comes into operation.2\n(6) This section extends to a communication made through an3\ninterpreter.4\nCompare:5\nEvidence Act 1906 s. 19A6\n166. Protected communications not to be disclosed7\n(1) A person cannot disclose or require disclosure of a protected8\ncommunication in or in connection with any criminal9\nproceeding unless the court gives leave.10\n(2) A person discloses a protected communication if the person11\ndiscloses, or adduces or produces anything that would12\ndisclose —13\n(a) the protected communication; or14\n(b) the contents of a document recording the protected15\ncommunication.16\n(3) To require disclosure of a protected communication includes17\nthe following —18\n(a) to require (whether by the issue of a subpoena or any19\nother process or procedure) the production of a20\ndocument recording the protected communication;21\n(b) to seek an order of the court that will, if made, result in22\nthe disclosure of the protected communication or the23\nproduction of a document recording the protected24\ncommunication.25\n(4) If a subpoena that purports to require disclosure of a protected26\ncommunication is issued without the leave of the court, the27\nsubpoena is of no effect.28\n\nEvidence Bill 2025\nPart 4 Privileges\nDivision 3 Counselling communications relating to sexual offences\ns. 167\npage 128\n(5) Evidence that cannot be disclosed or required to be disclosed1\nunder this section without the leave of the court is not2\nadmissible in a criminal proceeding unless that leave is given.3\nCompare:4\nEvidence Act 1906 s. 19A, 19C and 19K5\n167. Application for leave6\n(1) An application for leave of the court to disclose or require7\ndisclosure of a protected communication —8\n(a) must be made to the court in writing; and9\n(b) must be accompanied by an affidavit (a supporting10\naffidavit).11\n(2) The application must be made to the court at least 28 days12\nbefore the date set for the start of a trial in the proceeding,13\nunless the applicant satisfies the court that exceptional14\ncircumstances justify the application being made at a later date.15\n(3) The supporting affidavit must state why the applicant has a16\nlegitimate forensic purpose for disclosing or requiring17\ndisclosure of the protected communication.18\n(4) If an application is duly made and the court considers that the19\nsupporting affidavit establishes that, in the absence of evidence20\nto the contrary, the applicant has a legitimate forensic purpose21\nfor disclosing or requiring disclosure of the protected22\ncommunication, the court must fix a day and time for hearing23\nthe application.24\n(5) The court must hear the application before the start of the trial25\nin the proceeding, if practicable.26\n(6) The court must give notice of when the application will be27\nheard, together with copies of the application and the supporting28\naffidavit, to the following —29\n(a) the applicant and each other party to the criminal30\nproceeding;31\n\nEvidence Bill 2025\nPrivileges Part 4\nCounselling communications relating to sexual offences Division 3\ns. 168\npage 129\n(b) each protected person identified in the application or the1\nsupporting affidavit;2\n(c) any other person identified in the application or the3\nsupporting affidavit as a person to whom the protected4\ncommunication was made.5\n(7) The notice must also inform each protected person, or person to6\nwhom the protected communication was made, who is identified7\nin the application or supporting affidavit, of the person’s right to8\nappear, or be represented by legal counsel, at the hearing.9\n(8) If the court does not consider that the supporting affidavit10\nestablishes that, in the absence of evidence to the contrary, the11\napplicant has a legitimate forensic purpose for disclosing or12\nrequiring disclosure of the protected communication, the court13\nmust —14\n(a) refuse leave to disclose or require disclosure of the15\nprotected communication, without proceeding to a16\nhearing of the application; and17\n(b) notify the applicant that leave has been refused.18\nCompare:19\nEvidence Act 1906 s. 19C20\n168. Hearing of application21\n(1) A hearing of an application for leave to disclose or require the22\ndisclosure of a protected communication must be held in the23\nabsence of the jury (if any).24\n(2) The following persons are entitled to appear, or be represented25\nby legal counsel, at the hearing —26\n(a) each protected person identified in the application or the27\nsupporting affidavit;28\n(b) any other person identified in the application or the29\nsupporting affidavit as a person to whom the protected30\ncommunication was made.31\n\nEvidence Bill 2025\nPart 4 Privileges\nDivision 3 Counselling communications relating to sexual offences\ns. 169\npage 130\n(3) The court may, if it thinks it necessary to enable it to determine1\nthe application, conduct a preliminary examination of the2\nevidence that is the subject of the application.3\n(4) For the purpose of a preliminary examination, the court may4\nrequire a protected person —5\n(a) to provide written answers to questions; or6\n(b) to appear for oral examination.7\n(5) A preliminary examination must be conducted in the absence of8\nthe parties.9\nCompare:10\nEvidence Act 1906 s. 19D and 19F11\n169. Test to be applied by court12\nA court may, after hearing an application for leave, give leave to13\ndisclose or require disclosure of a protected communication if14\nand only if it is satisfied that —15\n(a) the applicant has a legitimate forensic purpose for16\ndisclosing or requiring disclosure of the protected17\ncommunication; and18\n(b) other evidence to the same effect as the protected19\ncommunication or the document recording the protected20\ncommunication is not available; and21\n(c) it is in the public interest to give leave to disclose or22\nrequire disclosure of the protected communication.23\nCompare:24\nEvidence Act 1906 s. 19E(1) and 19G(1)25\n170. Establishing legitimate forensic purpose26\n(1) In order to establish a legitimate forensic purpose for disclosing27\nor requiring the disclosure of a protected communication, it is28\n\nEvidence Bill 2025\nPrivileges Part 4\nCounselling communications relating to sexual offences Division 3\ns. 170\npage 131\nnot sufficient for an applicant for leave to assert, without1\nproving, 1 or more of the following —2\n(a) that the protected communication discloses a prior3\ninconsistent statement of the sexual offence4\ncomplainant;5\n(b) that the protected communication relates to the6\ncredibility of the sexual offence complainant or another7\nwitness in the criminal proceeding;8\n(c) that the protected communication relates to the9\nreliability of the testimony of the sexual offence10\ncomplainant merely because the complainant has11\nreceived or is receiving counselling.12\n(2) It is also not sufficient for the applicant to prove 1 or more of13\nthe following —14\n(a) that the protected communication exists;15\n(b) that the protected communication relates to activity that16\nis the subject of the criminal proceeding;17\n(c) that the protected communication was made close in18\ntime to the activity that is the subject of the criminal19\nproceeding;20\n(d) that the protected communication reveals allegations of21\nthe commission of a sexual offence against the sexual22\noffence complainant by a person other than the23\napplicant.24\n(3) Subsections (1) and (2) do not limit —25\n(a) the matters that the court can consider in deciding26\nwhether the applicant has a legitimate forensic purpose27\nfor disclosing or requiring disclosure of a protected28\ncommunication; or29\n(b) the grounds on which the court can decide that the30\napplicant does not have a legitimate forensic purpose for31\n\nEvidence Bill 2025\nPart 4 Privileges\nDivision 3 Counselling communications relating to sexual offences\ns. 171\npage 132\ndisclosing or requiring disclosure of a protected1\ncommunication.2\nCompare:3\nEvidence Act 1906 s. 19E(2) and (3)4\n171. Public interest test5\nFor the purpose of determining whether it is in the public6\ninterest to give leave to disclose or require disclosure of a7\nprotected communication, the court must have regard to the8\nfollowing —9\n(a) the extent to which disclosing or requiring the disclosure10\nof the protected communication is necessary to allow the11\napplicant for leave to make a full defence;12\n(b) whether the evidence of the protected communication or13\nthe contents of the document recording the protected14\ncommunication will have substantial probative value;15\n(c) the likelihood that disclosing or requiring the disclosure16\nof the protected communication will affect the outcome17\nof the proceeding;18\n(d) the public interest in ensuring that sexual offence19\ncomplainants receive effective counselling, and the20\nextent to which failure to preserve the confidentiality of21\nprotected communications may dissuade complainants22\nfrom seeking counselling or diminish the effectiveness23\nof counselling;24\n(e) the public interest in ensuring that adequate records are25\nkept of counselling communications;26\n(f) the likelihood that disclosing or requiring the disclosure27\nof the protected communication will cause harm to the28\nsexual offence complainant, and the nature and extent of29\nthat harm;30\n(g) any other matter that the court considers relevant.31\nCompare:32\nEvidence Act 1906 s. 19G(2)33","sortOrder":12},{"sectionNumber":"retrieval-0014","sectionType":"document_chunk","heading":"Document excerpt 14","content":"Evidence Bill 2025\nPrivileges Part 4\nCounselling communications relating to sexual offences Division 3\ns. 172\npage 133\n172. Effect of consent1\n(1) This Division does not prevent a protected communication from2\nbeing disclosed or being required to be disclosed in, or in3\nconnection with, any criminal proceeding if the sexual offence4\ncomplainant by, to or about whom the protected communication5\nis made has consented to the disclosure.6\n(2) Consent is not effective for the purposes of this section7\nunless —8\n(a) it is given in writing; and9\n(b) it is given expressly for the purposes of this Division.10\n(3) This section does not apply if the complainant is a child.11\nCompare:12\nEvidence Act 1906 s. 19H13\n173. Loss of privilege: misconduct14\n(1) This Division does not prevent the production or adducing of15\nevidence of a communication made, or the production of a16\ndocument prepared, in the furtherance of the commission of a17\nfraud or an offence or the commission of an act that renders a18\nperson liable to a civil penalty.19\n(2) If the commission of the fraud, offence or act is a fact in issue,20\nthe court may find that the communication was made, or the21\ndocument was prepared, in furtherance of the commission of the22\nfraud, offence or act if there are reasonable grounds for finding23\nthat —24\n(a) the fraud, offence or act was committed; and25\n(b) the communication was made or the document was26\nprepared in furtherance of the commission of the fraud,27\noffence or act.28\nCompare:29\nEvidence Act 1906 s. 19I30\n\nEvidence Bill 2025\nPart 4 Privileges\nDivision 3 Counselling communications relating to sexual offences\ns. 174\npage 134\n174. Ancillary orders1\nWithout limiting any action that the court may take to limit the2\npossible harm, or extent of the harm, likely to be caused by the3\ndisclosure of evidence of, or the contents of a document4\nrecording, a protected communication, the court may —5\n(a) order that all or part of the evidence be heard or6\ndocument produced in private; and7\n(b) make any order relating to the production, inspection,8\ncopying or reproduction of the document that, in its9\nopinion, is necessary to protect the safety and welfare of10\nany protected person and is in the interests of justice;11\nand12\n(c) make any order relating to the suppression of13\npublication of all or part of the evidence given before14\nthe court that, in its opinion, is necessary to protect the15\nsafety and welfare of any protected person and is in the16\ninterests of justice; and17\n(d) make any order relating to disclosure of information that18\nwould tend to identify any protected person that, in its19\nopinion, is necessary to protect the safety and welfare of20\nany protected person and is in the interests of justice.21\nCompare:22\nEvidence Act 1906 s. 19J23\n175. Application of other laws24\n(1) A provision of this Division does not affect the operation of any25\nrule of law in relation to evidence in a criminal proceeding26\nexcept to the extent that it expressly or necessarily has that27\neffect.28\n(2) Without limiting subsection (1), this Division does not affect the29\noperation of a rule of law so far as it relates to the inspection of30\na document required to be produced in, or in connection with, a31\ncriminal proceeding.32\n\nEvidence Bill 2025\nPrivileges Part 4\nJournalist privilege Division 4\ns. 176\npage 135\n(3) This Division does not affect the operation of the Children and1\nCommunity Services Act 2004 sections 124F and 240.2\nCompare:3\nEvidence Act 1906 s. 19L4\n176. Application to civil proceedings5\nIf evidence of a protected communication is found to be6\nprivileged in a criminal proceeding under this Division, the7\nevidence must not be adduced in a civil proceeding in which8\nsubstantially the same acts are in issue as the acts that were in9\nissue in relation to the criminal proceeding.10\nCompare:11\nEvidence Act 1995 (New South Wales) s. 126H12\n177. Regulations13\nThe regulations may make provision for the following —14\n(a) the forms to be used for an application for leave to15\ndisclose or require disclosure of a protected16\ncommunication and supporting affidavit;17\n(b) the manner in which a protected communication must be18\ndescribed in an application for leave or supporting19\naffidavit;20\n(c) other matters to be included in an application for leave21\nor supporting affidavit;22\n(d) the procedure relating to an application for leave.23\nCompare:24\nEvidence Act 1906 s. 19M25\nDivision 4 — Journalist privilege26\n178. Application of Division27\n(1) This Division extends to a proceeding before a person acting28\njudicially.29\n\nEvidence Bill 2025\nPart 4 Privileges\nDivision 4 Journalist privilege\ns. 179\npage 136\n(2) This Division does not affect any power a person acting1\njudicially has under any written law to take any action if it is in2\nthe interests of justice to do so.3\nNote for this section:4\nSection 15 provides that if a provision of this Act expressly extends to5\na proceeding before a person acting judicially, a reference in the6\nprovision to a court includes a reference to a person acting judicially.7\nCompare:8\nEvidence Act 1906 s. 20G and 20H9\n179. Terms used10\nIn this Division —11\nexclusion order has the meaning given in section 181(1);12\ninformant means a person who gives information to a journalist13\nin the normal course of the journalist’s work in the expectation14\nthat the information may be published in a news medium;15\njournalist means a person engaged in the profession or16\noccupation of journalism in connection with the publication of17\ninformation in a news medium;18\njournalist privilege means the privilege conferred by19\nsection 180(1);20\nmisconduct, by a journalist or an informant, means any of the21\nfollowing conduct by the journalist or informant —22\n(a) the commission of a fraud or an offence or the23\ncommission of an act that renders a person liable to a24\ncivil penalty;25\n(b) deceit, dishonesty, inappropriate partiality or a breach of26\ntrust;27\n(c) acting corruptly, or corruptly failing to act, in any28\ncapacity;29\n(d) corruptly taking advantage of their position to obtain a30\nbenefit for themselves or another person or to cause a31\ndetriment to another person;32\n\nEvidence Bill 2025\nPrivileges Part 4\nJournalist privilege Division 4\ns. 180\npage 137\n(e) conduct that adversely affects, or could adversely affect,1\ndirectly or indirectly, the honest or impartial2\nperformance of the functions of any person in any3\ncapacity;4\n(f) misusing information or material that the journalist or5\ninformant acquired in any capacity, whether the misuse6\nis to obtain a benefit for themselves or another person or7\nto cause a detriment to another person;8\n(g) conduct providing reasonable grounds for terminating9\nthe employment of the journalist or informant;10\n(h) conduct providing reasonable grounds for disciplining11\nthe journalist or informant for unsatisfactory12\nprofessional conduct or professional misconduct, or for13\nthe breach of a professional standard that applies to the14\nprofession of the journalist or informant, whether or not15\nthe journalist or informant is a member of the body that16\nprescribed the standard;17\nnews medium means any medium for the dissemination to the18\npublic or a section of the public of news and observations on19\nnews.20\nCompare:21\nEvidence Act 1906 s. 20G and 20K22\nEvidence Act 1995 (Commonwealth) s. 126J23\n180. Journalist privilege relating to identity of informant24\n(1) If a journalist has promised an informant not to disclose the25\ninformant’s identity, neither the journalist nor the journalist’s26\nemployer is compellable to answer any question or produce any27\ndocument that would disclose the identity of the informant or28\nenable that identity to be ascertained.29\n(2) This section does not apply if the court, on application of a30\nparty, makes an exclusion order in relation to the evidence.31\nCompare:32\nEvidence Act 1995 (Commonwealth) s. 126K33\n\nEvidence Bill 2025\nPart 4 Privileges\nDivision 4 Journalist privilege\ns. 181\npage 138\n181. Exclusion of journalist privilege: public interest test1\n(1) A court may make an order (an exclusion order) that journalist2\nprivilege does not apply to any evidence.3\n(2) A court may make an exclusion order if it is satisfied that,4\nhaving regard to the issues to be determined in that proceeding,5\nthe public interest in the disclosure of evidence of the identity of6\nthe informant (identifying evidence) outweighs —7\n(a) any likely adverse effect of the disclosure on the8\ninformant or any other person; and9\n(b) the public interest in the communication of facts and10\nopinion to the public by the news media and,11\naccordingly, in the ability of the news media to access12\nsources of facts.13\n(3) Without limiting the matters to which the court may have regard14\nfor the purposes of this section, it must have regard to the15\nfollowing —16\n(a) the probative value of the identifying evidence in the17\nproceeding;18\n(b) the importance of the identifying evidence in the19\nproceeding;20\n(c) the nature and gravity of the relevant offence, cause of21\naction or defence and the nature of the subject matter of22\nthe proceeding;23\n(d) the availability of any other evidence concerning the24\nmatters to which the identifying evidence relates;25\n(e) the likely effect of giving the identifying evidence,26\nincluding the likelihood of harm, and the nature and27\nextent of harm that would be caused to the informant or28\nany other person;29\n(f) the means (including any ancillary orders that may be30\nmade under section 184) available to the court to limit31\nthe harm or extent of the harm that is likely to be caused32\nif the identifying evidence is given;33\n\nEvidence Bill 2025\nPrivileges Part 4\nJournalist privilege Division 4\ns. 182\npage 139\n(g) the likely effect of giving the identifying evidence in1\nrelation to —2\n(i) a prosecution that has commenced but has not3\nbeen finalised; or4\n(ii) an investigation, of which the court is aware, into5\nwhether or not an offence has been committed;6\n(h) whether the substance of the identifying evidence has7\nalready been disclosed by the informant or any other8\nperson;9\n(i) the risk to national security or to the security of the10\nState;11\n(j) whether or not there was misconduct by the informant or12\nthe journalist in relation to obtaining, using, giving or13\nreceiving information.14\n(4) The court may make the exclusion order subject to any15\nconditions the court thinks fit.16\nCompare:17\nEvidence Act 1906 s. 20J18\nEvidence Act 1995 (Commonwealth) s. 126K19\n182. Special consideration: misconduct20\n(1) The court may make, but is not required to make, an exclusion21\norder if the court finds that there was misconduct by an22\ninformant or a journalist in relation to obtaining, using, giving23\nor receiving information.24\n(2) The court must have regard to the following when deciding25\nwhether or not to make an exclusion order in a case involving26\nmisconduct —27\n(a) that generally an exclusion order should be made in the28\ncircumstances referred to in subsection (3);29\n(b) the public interest in making or refusing to make the30\norder.31\n\nEvidence Bill 2025\nPart 4 Privileges\nDivision 4 Journalist privilege\ns. 182\npage 140\n(3) The following are the circumstances in which generally an1\nexclusion order should be made —2\n(a) the misconduct involved the commission of an offence3\nunder The Criminal Code section 81 or a breach of a4\npublic sector standard, code of ethics or code of5\nconduct, as those terms are defined in the Public Sector6\nManagement Act 1994 section 3(1), and the offence or7\nbreach involved the disclosure of information that —8\n(i) was public interest information as defined in the9\nPublic Interest Disclosure Act 2003 section 3(1);10\nand11\n(ii) could have been, but was not, disclosed in12\naccordance with the Public Interest Disclosure13\nAct 2003;14\n(b) the information given to the journalist could have been15\nprovided, in a way that did not constitute misconduct, to16\nanother person to deal with the concern;17\n(c) the information given to the journalist could have been18\nobtained by the journalist under the Freedom of19\nInformation Act 1992 or by other lawful means;20\n(d) the misconduct involved a breach of privacy that was21\nnot warranted in the circumstances, having regard to the22\nvalue to be attached to —23\n(i) the privacy of information regarding private24\ncitizens generally; or25\n(ii) the privacy of information regarding matters that26\nmay be commercial in confidence; or27\n(iii) the principle of Cabinet confidentiality; or28\n(iv) the principle of public interest immunity;29\n(e) the communication made to the journalist, if published,30\nwould give rise to a risk to national security or to the31\nsecurity of the State.32\n\nEvidence Bill 2025\nPrivileges Part 4\nJournalist privilege Division 4\ns. 183\npage 141\n(4) If misconduct by a journalist or an informant is a fact in issue,1\nthe court may find that there was misconduct by the journalist or2\ninformant in relation to obtaining, using, giving or receiving3\ninformation if there are reasonable grounds for making that4\nfinding.5\n(5) This section does not limit —6\n(a) the circumstances in which the court may make an7\nexclusion order; or8\n(b) the matters to which the court may have regard in9\ndeciding whether to make an exclusion order.10\nCompare:11\nEvidence Act 1906 s. 20K12\n183. Application of journalist privilege to preliminary13\nproceedings14\n(1) In this section —15\ndisclosure requirement —16\n(a) means a court process or court order that requires the17\ndisclosure of information or a document; and18\n(b) includes the following —19\n(i) a summons or subpoena to produce documents or20\ngive evidence;21\n(ii) pre-trial discovery;22\n(iii) non-party discovery;23\n(iv) interrogatories;24\n(v) a notice to produce;25\n(vi) a request to produce a document under Part 826\nDivision 4.27\n(2) If, in response to a disclosure requirement, a person claims that28\nthe person is not compellable to answer a question or produce a29\ndocument because of journalist privilege, a party who seeks30\n\nEvidence Bill 2025\nPart 4 Privileges\nDivision 5 Self-incrimination\ns. 184\npage 142\ndisclosure of information or a document under the disclosure1\nrequirement may apply to the court for an exclusion order.2\nCompare:3\nEvidence Act 1995 (Commonwealth) s. 131A4\n184. Ancillary orders5\nWithout limiting any action that the court may take to limit the6\npossible harm, or extent of the harm, likely to be caused by the7\ndisclosure of evidence identifying an informant, the court8\nmay —9\n(a) order that all or part of the evidence be heard in private;10\nand11\n(b) make any order relating to the suppression of12\npublication of all or part of the evidence given before13\nthe court that, in its opinion, is necessary to protect the14\nsafety and welfare of the informant and is in the interests15\nof justice.16\nCompare:17\nEvidence Act 1906 s. 20M18\nDivision 5 — Self-incrimination19\n185. Terms used20\nIn this Division —21\ndisclosure certificate has the meaning given in section 188(7);22\ndisclosure order —23\n(a) means an order made by a court in a civil proceeding24\nthat requires a person to disclose information as part of,25\nor in connection with, a freezing or search order made26\nunder the rules of the Supreme Court; but27\n(b) does not include an order made by a court under the28\nCriminal Property Confiscation Act 2000 or the29\nProceeds of Crime Act 2002 (Commonwealth);30\n\nEvidence Bill 2025\nPrivileges Part 4\nSelf-incrimination Division 5\ns. 186\npage 143\nevidence certificate has the meaning given in section 186(7);1\nincriminate, a person, means tend to prove that the person —2\n(a) has committed an offence against or arising under an3\nAustralian law or a law of a foreign country; or4\n(b) is liable to a civil penalty.5\n186. Privilege in respect of self-incrimination in other6\nproceedings7\n(1) A witness may object to giving particular evidence, or evidence8\non a particular matter, on the ground that the evidence may9\nincriminate the witness.10\n(2) A witness is taken to have objected to giving evidence under11\nthis section if the witness expresses an unwillingness to give12\nevidence on the ground that the evidence might incriminate the13\nwitness.14\n(3) A witness may object to giving evidence under this section15\nwhether or not the witness is compellable to give that evidence.16\n(4) The court must determine whether or not there are reasonable17\ngrounds for the objection.18\n(5) If the court determines that there are reasonable grounds for the19\nobjection, the court —20\n(a) must not require the witness to give the evidence, except21\nunder subsection (6); and22\n(b) must inform the witness —23\n(i) that the witness is not required to give the24\nevidence unless the court requires it under25\nsubsection (6); and26\n(ii) that the court will give the witness an evidence27\ncertificate if the witness gives the evidence28\n(either with or without being required to do so);29\nand30\n(iii) of the effect of the evidence certificate.31","sortOrder":13},{"sectionNumber":"retrieval-0015","sectionType":"document_chunk","heading":"Document excerpt 15","content":"Evidence Bill 2025\nPart 4 Privileges\nDivision 5 Self-incrimination\ns. 187\npage 144\n(6) The court may require the witness to give the evidence if the1\ncourt is satisfied that —2\n(a) the evidence does not tend to prove that the witness has3\ncommitted an offence against or arising under, or is4\nliable to a civil penalty under, a law of a foreign5\ncountry; and6\n(b) the interests of justice require that the witness give the7\nevidence.8\n(7) The court must cause a witness who objects to giving evidence9\nunder this section to be given a certificate (an evidence10\ncertificate) in respect of evidence if —11\n(a) the court determines that there are reasonable grounds12\nfor the objection and the witness gives the evidence13\n(whether or not after being required to do so under14\nsubsection (6)); or15\n(b) the court overrules the objection but, after the evidence16\nhas been given, finds that there were reasonable grounds17\nfor the objection.18\n(8) In a criminal proceeding, this section does not apply in relation19\nto the giving of evidence by an accused, being evidence that the20\naccused —21\n(a) did an act the doing of which is a fact in issue; or22\n(b) had a state of mind the existence of which is a fact in23\nissue.24\nCompare:25\nEvidence Act 1995 (Commonwealth) s. 12826\n187. Effect of evidence certificate27\n(1) In any proceeding in a court or before a person acting judicially28\n(whether or not a court), the following evidence cannot be used29\nagainst a person —30\n(a) evidence given by the person in respect of which an31\nevidence certificate has been given;32\n\nEvidence Bill 2025\nPrivileges Part 4\nSelf-incrimination Division 5\ns. 187\npage 145\n(b) evidence of any information, document or thing1\nobtained as a direct or indirect consequence of the2\nperson having given evidence in respect of which an3\nevidence certificate has been given.4\n(2) Subsection (1) —5\n(a) does not apply to a criminal proceeding in respect of the6\nfalsity of the evidence; and7\n(b) has effect despite any challenge, review, quashing or8\ncalling into question on any ground of the decision to9\ngive, or the validity of, the certificate concerned.10\n(3) If an accused in a criminal proceeding is given an evidence11\ncertificate, subsection (1) does not apply in a proceeding that is12\na retrial of the accused for the same offence or a trial of the13\naccused for an offence arising out of the same facts that gave14\nrise to that offence.15\n(4) If a person has been given a certificate under a corresponding16\nprovision in respect of evidence given in a proceeding to which17\nthe corresponding provision applies, the certificate has the same18\neffect as an evidence certificate given under section 186.19\n(5) Each of the following is a corresponding provision for the20\npurposes of subsection (4) —21\n(a) a provision of a law of a State or Territory that is22\nsubstantially to the same effect as section 186;23\n(b) a provision of a law of a State or Territory prescribed by24\nthe regulations to be a corresponding provision for the25\npurposes of subsection (4).26\nNote for this section:27\nSubsections (2)(b) and (3) relate to the decision of the High Court of28\nAustralia in Cornwell v The Queen (2007) 231 CLR 260.29\nCompare:30\nEvidence Act 1995 (Commonwealth) s. 12831\n\nEvidence Bill 2025\nPart 4 Privileges\nDivision 5 Self-incrimination\ns. 188\npage 146\n188. Privilege in respect of self-incrimination: disclosure orders1\n(1) A person to whom a disclosure order is directed (a relevant2\nperson) may object to complying with the disclosure order on3\nthe ground that some or all of the information required to be4\ndisclosed may incriminate the person.5\n(2) A relevant person who wishes to object to the disclosure of6\ninformation under this section must —7\n(a) disclose any information required to be disclosed to8\nwhich no objection is made; and9\n(b) prepare an affidavit (a privilege affidavit) containing the10\ninformation required to be disclosed to which the11\nobjection is made and deliver it to the court in a sealed12\nenvelope; and13\n(c) file and serve on each other party a separate affidavit14\nsetting out the basis of the objection.15\n(3) The sealed envelope containing the privilege affidavit must not16\nbe opened except as directed by the court.17\n(4) The court must determine whether or not there are reasonable18\ngrounds for the objection.19\n(5) If the court finds that there are reasonable grounds for the20\nobjection, the court must not require the information contained21\nin the privilege affidavit to be disclosed and must return it to the22\nrelevant person.23\n(6) Despite subsection (5), the court may make an order requiring24\nthe whole or any part of the privilege affidavit to be filed and25\nserved on the parties, but only if the court is satisfied that —26\n(a) the information to be disclosed does not tend to prove27\nthat the relevant person has committed an offence28\nagainst or arising under, or is liable to a civil penalty29\nunder, a law of a foreign country; and30\n(b) the interests of justice require the information to be31\ndisclosed.32\n\nEvidence Bill 2025\nPrivileges Part 4\nSelf-incrimination Division 5\ns. 189\npage 147\n(7) The court must cause the relevant person to be given a1\ncertificate (a disclosure certificate) in respect of any2\ninformation disclosed in the privilege affidavit (including by3\norder under subsection (6)) that may tend to prove that the4\nrelevant person has committed an offence against or arising5\nunder, or is liable to a civil penalty under, an Australian law.6\nCompare:7\nEvidence Act 1995 (Commonwealth) s. 128A8\n189. Effect of disclosure certificate9\n(1) In any proceeding in a court or before a person acting judicially10\n(whether or not a court), the following evidence cannot be used11\nagainst a person —12\n(a) evidence of information disclosed by the person in13\nrespect of which a disclosure certificate has been given;14\n(b) evidence of any information, document or thing15\nobtained as a direct or indirect consequence of the16\nperson having disclosed that information.17\n(2) Subsection (1) —18\n(a) does not apply to a criminal proceeding in respect of the19\nfalsity of the evidence; and20\n(b) has effect despite any challenge, review, quashing or21\ncalling into question on any ground of the decision to22\ngive, or the validity of, the certificate concerned.23\n(3) Subsection (1) does not prevent the use against the person of24\nany information disclosed by a document that —25\n(a) is an annexure or exhibit to a privilege affidavit26\nprepared by the person in response to a disclosure order;27\nand28\n(b) was in existence before the order was made.29\n(4) If a person has been given a certificate under a corresponding30\nprovision in respect of information of a kind referred to in31\n\nEvidence Bill 2025\nPart 4 Privileges\nDivision 5 Self-incrimination\ns. 190\npage 148\nsubsection (1), the certificate has the same effect as a disclosure1\ncertificate given under section 188.2\n(5) Each of the following is a corresponding provision for the3\npurposes of subsection (4) —4\n(a) a provision of a law of a State or Territory that is5\nsubstantially to the same effect as section 188;6\n(b) a provision of a law of a State or Territory prescribed by7\nthe regulations to be a corresponding provision for the8\npurposes of subsection (4).9\nCompare:10\nEvidence Act 1995 (Commonwealth) s. 128A11\n190. Court may restrict publication of evidence12\n(1) A court that causes a person to be given an evidence certificate13\nor a disclosure certificate in respect of any evidence may make14\nan order prohibiting the publication of a report of or relating to15\nthe evidence, or any part of the evidence, or of the giving of the16\ncertificate, if the court considers that publication of the report,17\nor of the giving of the certificate, may tend to prejudice any18\nprosecution that has been or may be brought against the person.19\n(2) A person must not publish information in contravention of an20\norder under subsection (1).21\nPenalty for this subsection: a fine of $6 000.22\n(3) A person who contravenes subsection (1) —23\n(a) is taken to be in contempt of the court that gave the24\nevidence certificate or disclosure certificate; and25\n(b) is punishable accordingly.26\n(4) If a person’s act constitutes both an offence under subsection (2)27\nand a contempt of court under subsection (3), the person is not28\nliable to be punished twice.29\nCompare:30\nEvidence Act 1906 s. 11A31\n\nEvidence Bill 2025\nPrivileges Part 4\nSelf-incrimination Division 5\ns. 191\npage 149\n191. Self-incrimination: witnesses in public revenue proceedings1\n(1) A person who is required by a court under section 29 to give2\nevidence in a proceeding to which that section applies may3\nobject to giving evidence, or evidence on a particular matter, on4\nthe ground that the evidence may incriminate the person.5\n(2) If the court determines there are no reasonable grounds for the6\nobjection, the court may require the person to give the evidence.7\n(3) If the court determines there are reasonable grounds for the8\nobjection, the court may require the person to give the evidence9\nif the court is satisfied that —10\n(a) the evidence does not tend to prove that the person has11\ncommitted an offence against or arising under, or is12\nliable to a civil penalty under, a law of the13\nCommonwealth, another State, a Territory or a foreign14\ncountry; and15\n(b) it is in the public interest that the person give the16\nevidence.17\n(4) The court must, on application, cause the person to be given a18\ncertificate (an immunity certificate) in respect of any matter in19\nrelation to which the person gives evidence after being required20\nto do so by the court if, in the opinion of the court, the evidence21\nthe person was required to give incriminates the person.22\n(5) If an immunity certificate is given to the person —23\n(a) the person is not liable for any offence against or arising24\nunder, or a civil penalty under, a law of this State in25\nrespect of a matter specified in the immunity certificate;26\nand27\n(b) a prosecution for an offence against or arising under, or28\na proceeding for a civil penalty under, a law of this State29\ncannot be instituted or continued against the person for a30\nmatter specified in the immunity certificate.31\n\nEvidence Bill 2025\nPart 4 Privileges\nDivision 6 Evidence excluded in the public interest\ns. 192\npage 150\n(6) An immunity certificate does not extend —1\n(a) to an act or omission that occurs after the evidence is2\ngiven in the proceeding in which the immunity3\ncertificate is given; or4\n(b) to a criminal proceeding in respect of the falsity of5\nevidence given in the proceeding in which the immunity6\ncertificate is given.7\n(7) Sections 186 and 187 do not apply to a person who is required8\nby a court to give evidence under section 29.9\nCompare:10\nEvidence Act 1906 s. 1311\nDivision 6 — Evidence excluded in the public interest12\n192. Exclusion of evidence of reasons for judicial and other13\ndecisions14\n(1) A judge in an Australian or overseas proceeding, or an arbitrator15\nin respect of a dispute submitted to arbitration (whether to 1 or16\nmore arbitrators), and any other person to whom this subsection17\nextends, must not give evidence of the following —18\n(a) the reasons for the decision made by the judge or19\narbitrator in the proceeding or arbitration;20\n(b) the deliberations of the judge or arbitrator in relation to21\nthat decision.22\n(2) Subsection (1) extends to a person who was, in relation to a23\nproceeding or arbitration, under the direction or control of the24\njudge or arbitrator.25\n(3) Evidence that a person must not give under subsection (1) or (2)26\nalso must not be given by tendering as evidence any document27\nprepared by the person.28\n(4) This section does not prevent the admission or use, in a29\nproceeding, of published reasons for a decision.30\n\nEvidence Bill 2025\nPrivileges Part 4\nEvidence excluded in the public interest Division 6\ns. 193\npage 151\n(5) In a proceeding, evidence of the reasons for a decision made by1\na member of a jury in another Australian or overseas2\nproceeding, or of the deliberations of a member of a jury in3\nrelation to the decision, must not be given by any of the4\nmembers of that jury.5\n(6) This section does not apply in a proceeding that is —6\n(a) a prosecution for 1 or more of the following offences —7\n(i) an offence against The Criminal Code8\nChapter XVI or XVII;9\n(ii) an offence connected with an offence mentioned10\nin subparagraph (i), including an offence of11\nattempting to commit, conspiring with another12\nperson to commit, inciting another person to13\ncommit or attempting to procure another person14\nto commit an offence mentioned in15\nsubparagraph (i);16\nor17\n(b) in respect of a contempt of court; or18\n(c) by way of appeal from, or judicial review of, a19\njudgment, decree, order or sentence of a court; or20\n(d) by way of review of an arbitral award; or21\n(e) a civil proceeding in respect of an act of a judicial22\nofficer or arbitrator that was, and that was known at the23\ntime by the judicial officer or arbitrator to be, outside24\nthe scope of the matters in relation to which the judicial25\nofficer or arbitrator had authority to act.26\nCompare:27\nEvidence Act 1995 (Commonwealth) s. 12928\n193. Exclusion of evidence of matters of state29\n(1) If the public interest in admitting into evidence information or a30\ndocument that relates to matters of state is outweighed by the31\npublic interest in preserving secrecy or confidentiality in32\n\nEvidence Bill 2025\nPart 4 Privileges\nDivision 6 Evidence excluded in the public interest\ns. 193\npage 152\nrelation to the information or document, the court may direct1\nthat the information or document not be adduced as evidence.2\n(2) The court may give the direction either on its own initiative or3\non the application of any person (whether or not the person is a4\nparty).5\n(3) In deciding whether to give the direction, the court may inform6\nitself in any way it thinks fit.7\n(4) Without limiting the circumstances in which information or a8\ndocument may be taken for the purposes of subsection (1) to9\nrelate to matters of state, the information or document is taken10\nfor the purposes of that subsection to relate to matters of state if11\nadducing it as evidence would —12\n(a) prejudice the security, defence or international relations13\nof Australia; or14\n(b) damage relations between the Commonwealth and a15\nState or a Territory or between States, Territories or a16\nState and Territory; or17\n(c) prejudice the prevention, investigation or prosecution of18\nan offence; or19\n(d) prejudice the prevention or investigation of, or the20\nconduct of proceedings for recovery of civil penalties21\nbrought with respect to, other contraventions of the law;22\nor23\n(e) disclose, or enable a person to ascertain, the existence or24\nidentity of a confidential source of information relating25\nto the enforcement or administration of a law of the26\nCommonwealth, a State or a Territory; or27\n(f) prejudice the proper functioning of the government of28\nthe Commonwealth, a State or a Territory.29\n\nEvidence Bill 2025\nPrivileges Part 4\nEvidence excluded in the public interest Division 6\ns. 194\npage 153\n(5) Without limiting the matters that the court may take into1\naccount for the purposes of subsection (1), the court must take2\ninto account the following matters —3\n(a) the importance of the information or the document in the4\nproceeding;5\n(b) if the proceeding is a criminal proceeding — whether6\nthe party seeking to adduce evidence of the information7\nor document is an accused or the prosecutor;8\n(c) the nature of the offence, cause of action or defence to9\nwhich the information or document relates, and the10\nnature of the subject matter of the proceeding;11\n(d) the likely effect of adducing evidence of the information12\nor document, and the means available to limit its13\npublication;14\n(e) whether the substance of the information or document15\nhas already been published;16\n(f) if the proceeding is a criminal proceeding and the party17\nseeking to adduce evidence of the information or18\ndocument is an accused — whether the direction is to be19\nmade subject to the condition that the prosecution be20\nstayed.21\nCompare:22\nEvidence Act 1995 (Commonwealth) s. 13023\n194. Exclusion of evidence of settlement negotiations24\n(1) In this section —25\ndispute means a dispute of a kind in respect of which relief may26\nbe given in an Australian or overseas proceeding;27\npower means a power conferred by or under an Australian law.28\n(2) Evidence must not be adduced of —29\n(a) a communication that is made between persons in30\ndispute, or between 1 or more persons in dispute and a31","sortOrder":14},{"sectionNumber":"retrieval-0016","sectionType":"document_chunk","heading":"Document excerpt 16","content":"Evidence Bill 2025\nPart 4 Privileges\nDivision 6 Evidence excluded in the public interest\ns. 194\npage 154\nthird party, in connection with an attempt to negotiate a1\nsettlement of the dispute; or2\n(b) a document (whether delivered or not) that has been3\nprepared in connection with an attempt to negotiate a4\nsettlement of a dispute.5\n(3) Subsection (2) does not apply if —6\n(a) the persons in dispute consent to the evidence being7\nadduced in the proceeding concerned or, if any of those8\npersons has tendered the communication or document in9\nevidence in another Australian or overseas proceeding,10\nall the other persons consent; or11\n(b) the substance of the evidence has been disclosed with12\nthe express or implied consent of all the persons in13\ndispute; or14\n(c) the substance of the evidence has been partly disclosed15\nwith the express or implied consent of the persons in16\ndispute, and full disclosure of the evidence is reasonably17\nnecessary to enable a proper understanding of the other18\nevidence that has already been adduced; or19\n(d) the communication or document included a statement to20\nthe effect that it was not to be treated as confidential; or21\n(e) the evidence tends to contradict or to qualify evidence22\nthat has already been admitted about the course of an23\nattempt to settle the dispute; or24\n(f) the proceeding in which it is sought to adduce the25\nevidence is a proceeding to enforce an agreement26\nbetween the persons in dispute to settle the dispute, or a27\nproceeding in which the making of the agreement is in28\nissue; or29\n(g) evidence that has been adduced in the proceeding, or an30\ninference from evidence that has been adduced in the31\nproceeding, is likely to mislead the court unless32\nevidence of the communication or document is adduced33\nto contradict or to qualify that evidence; or34\n\nEvidence Bill 2025\nPrivileges Part 4\nEvidence excluded in the public interest Division 6\ns. 194\npage 155\n(h) the communication or document is relevant to1\ndetermining liability for costs; or2\n(i) making the communication, or preparing the document,3\naffects a right of a person; or4\n(j) the communication was made, or the document was5\nprepared, in furtherance of the commission of a fraud or6\nan offence or the commission of an act that renders a7\nperson liable to a civil penalty; or8\n(k) a person in dispute, or an employee or agent of a person9\nin dispute, knew or ought reasonably to have known that10\nthe communication was made, or the document was11\nprepared, in furtherance of a deliberate abuse of a12\npower.13\n(4) If the commission of a fraud, offence or act referred to in14\nsubsection (3)(j) is a fact in issue, a court may find that a15\ncommunication was made or a document was prepared in16\nfurtherance of the commission of a fraud, offence or act if there17\nare reasonable grounds for finding that —18\n(a) the fraud, offence or act was committed; and19\n(b) the communication was made or document was prepared20\nin furtherance of the commission of the fraud, offence or21\nact.22\n(5) If an abuse of power referred to in subsection (3)(k) is a fact in23\nissue, the court may find that a communication was made or a24\ndocument was prepared in furtherance of an abuse of power25\nif there are reasonable grounds for that finding.26\n(6) This section does not apply to a communication made, or a27\ndocument prepared, in connection with an attempt to negotiate28\nthe settlement of a criminal proceeding or an anticipated29\ncriminal proceeding.30\n(7) For the purposes of this section —31\n(a) a communication made by an employee or agent of a32\nperson is taken to have been made by the person; and33\n\nEvidence Bill 2025\nPart 4 Privileges\nDivision 7 General\ns. 195\npage 156\n(b) a consent given by an employee or agent of a person is1\ntaken to have been given by the person if the employee2\nor agent is authorised to consent.3\n(8) A reference in this section to doing an act includes a reference4\nto failing to do that act.5\nCompare:6\nEvidence Act 1995 (Commonwealth) s. 1317\nDivision 7 — General8\n195. Court to inform of rights to make applications and9\nobjections10\nIf it appears to the court that a witness or a party may have11\ngrounds for making an application or objection under a12\nprovision of this Part, the court must satisfy itself (if there is a13\njury, in the absence of the jury) that the witness or party is14\naware of the effect of that provision.15\nCompare:16\nEvidence Act 1995 (Commonwealth) s. 13217\n196. Court may inspect documents18\nIf a question arises under this Part in relation to a document, the19\ncourt may order that the document be produced to it and may20\ninspect the document for the purpose of determining the21\nquestion.22\nCompare:23\nEvidence Act 1995 (Commonwealth) s. 13324\n197. Inadmissibility of evidence that must not be adduced or25\ngiven26\nEvidence that, because of this Part, must not be adduced or27\ngiven in a proceeding is not admissible in the proceeding.28\nCompare:29\nEvidence Act 1995 (Commonwealth) s. 13430\n\nEvidence Bill 2025\nPrivileges Part 4\nGeneral Division 7\ns. 198\npage 157\n198. Derogation of privilege in civil proceedings1\n(1) Rules of court relating to the use of expert evidence in a civil2\nproceeding may provide for the derogation of any privilege3\nunder this Act that would otherwise attach to documents4\nprepared —5\n(a) for the purpose of pending or contemplated proceedings;6\nor7\n(b) in connection with the obtaining or giving of legal8\nadvice.9\n(2) A privilege under this Act does not apply to the extent provided10\nfor by rules of court referred to in subsection (1).11\n(3) Without limiting the generality of subsection (1) or any other12\npower to make rules of court, rules of court relating to the use of13\nexpert evidence in a civil proceeding may make provision for —14\n(a) the disclosure, by providing copies of reports or15\notherwise, of the nature and substance of expert16\nevidence to be given in a civil proceeding; and17\n(b) the exclusion of expert evidence because of18\nnon-compliance with the rules of court relating to19\ndisclosure of expert evidence or non-compliance with20\nany order for the disclosure of the nature and substance21\nof expert evidence; and22\n(c) the conferral of a discretion on the court, tribunal or23\nother person or body dealing with the proceeding in24\nrelation to the matters referred to in paragraphs (a)25\nand (b).26\n(4) This section extends to the following proceedings —27\n(a) an arbitration;28\n(b) a civil proceeding before a WA tribunal.29\nCompare:30\nEvidence Act 1906 s. 32A31\n\nEvidence Bill 2025\nPart 4 Privileges\nDivision 7 General\ns. 199\npage 158\n199. No privilege against self-incrimination for bodies corporate1\n(1) This section applies if, under a law of the State or in a2\nproceeding to which this Act applies, a body corporate is3\nrequired to —4\n(a) answer a question or give information; or5\n(b) produce a document or any other thing; or6\n(c) do any other act whatever.7\n(2) The body corporate is not entitled to refuse or fail to comply8\nwith the requirement on the ground that answering the question,9\ngiving the information, producing the document or other thing10\nor doing that other act, as the case may be, might tend to11\nincriminate the body or make the body liable to a penalty.12\nCompare:13\nEvidence Act 1995 (Commonwealth) s. 18714\n200. No confessional privilege in proceedings relating to child15\nsexual offences or sexual abuse16\n(1) In this section —17\nreligious confession means a confession made by a person to a18\nminister of religion acting in the minister’s capacity as a19\nminister of religion and in accordance with the tenets of the20\nminister’s faith or religion.21\n(2) A person is not entitled to refuse or fail to give evidence on the22\nground that giving the evidence would require the person to23\ndisclose that a religious confession was made to the person, the24\ncontents of a religious confession or information gained in25\nconnection with a religious confession in the following26\nproceedings —27\n(a) a criminal proceeding for a sexual offence if the28\ncomplainant was a child at the time of the offence;29\n(b) a civil proceeding in which it is alleged a person is the30\nvictim of sexual abuse if the person was a child at the31\ntime of the sexual abuse.32\n\nEvidence Bill 2025\nPrivileges Part 4\nGeneral Division 7\ns. 200\npage 159\n(3) This section does not affect the operation of any privilege1\nconferred by this Part.2\n\nEvidence Bill 2025\nPart 5 Exclusion of evidence\ns. 201\npage 160\nPart 5 — Exclusion of evidence1\n201. General discretion to exclude evidence2\nA court may refuse to admit evidence if its probative value is3\nsubstantially outweighed by the danger that the evidence4\nmight —5\n(a) be unfairly prejudicial to a party; or6\n(b) be misleading or confusing; or7\n(c) cause or result in undue waste of time.8\nCompare:9\nEvidence Act 1995 (Commonwealth) s. 13510\n202. General discretion to limit use of evidence11\nA court may limit the use to be made of evidence if there is a12\ndanger that a particular use of the evidence might —13\n(a) be unfairly prejudicial to a party; or14\n(b) be misleading or confusing.15\nCompare:16\nEvidence Act 1995 (Commonwealth) s. 13617\n203. Exclusion of prejudicial evidence in criminal proceeding18\nIn a criminal proceeding, the court must refuse to admit19\nevidence adduced by the prosecutor if its probative value is20\noutweighed by the danger of unfair prejudice to the accused.21\nCompare:22\nEvidence Act 1995 (Commonwealth) s. 13723\n204. Exclusion of improperly or illegally obtained evidence24\n(1) The following evidence must not be admitted unless the25\ndesirability of admitting the evidence outweighs the26\n\nEvidence Bill 2025\nExclusion of evidence Part 5\ns. 204\npage 161\nundesirability of admitting evidence that has been obtained in1\nthe way in which the evidence was obtained —2\n(a) evidence obtained improperly or in contravention of an3\nAustralian law;4\n(b) evidence obtained in consequence of an impropriety or5\nof a contravention of an Australian law.6\n(2) Without limiting subsection (1), evidence of an admission that7\nwas made during or in consequence of questioning, and8\nevidence obtained in consequence of the admission, are taken to9\nhave been obtained improperly if the person conducting the10\nquestioning —11\n(a) did, or omitted to do, an act in the course of the12\nquestioning even though the person knew or ought13\nreasonably to have known that the act or omission was14\nlikely to impair substantially the ability of the person15\nbeing questioned to respond rationally to the16\nquestioning; or17\n(b) made a false statement in the course of the questioning18\neven though the person knew or ought reasonably to19\nhave known that the statement was false and that20\nmaking the false statement was likely to cause the21\nperson who was being questioned to make an admission.22\n(3) Without limiting the matters that the court may take into23\naccount under subsection (1), it must take into account the24\nfollowing —25\n(a) the probative value of the evidence;26\n(b) the importance of the evidence in the proceeding;27\n(c) the nature of the relevant offence, cause of action or28\ndefence and the nature of the subject matter of the29\nproceeding;30\n(d) the gravity of the impropriety or contravention;31\n(e) whether the impropriety or contravention was deliberate32\nor careless;33\n\nEvidence Bill 2025\nPart 5 Exclusion of evidence\ns. 205\npage 162\n(f) whether the impropriety or contravention was contrary1\nto or inconsistent with a right of a person recognised by2\nthe International Covenant on Civil and Political Rights;3\n(g) whether any other proceeding (whether or not in a court)4\nhas been or is likely to be taken in relation to the5\nimpropriety or contravention;6\n(h) the difficulty (if any) of obtaining the evidence without7\nimpropriety or contravention of an Australian law.8\nCompare:9\nEvidence Act 1995 (Commonwealth) s. 13810\n205. Cautioning of persons11\n(1) For the purposes of section 204(1)(a), evidence of a statement12\nmade or an act done by a person during questioning is taken to13\nhave been obtained improperly if —14\n(a) the person was under arrest for an offence at the time;15\nand16\n(b) the questioning was conducted by an investigating17\nofficial who was at the time empowered, because of the18\noffice that the official held, to arrest the person; and19\n(c) before starting the questioning the investigating official20\ndid not caution the person that the person does not have21\nto say or do anything but that anything the person does22\nsay or do may be used in evidence.23\n(2) For the purposes of section 204(1)(a), evidence of a statement24\nmade or an act done by a person during questioning is taken to25\nhave been obtained improperly if —26\n(a) the questioning was conducted by an investigating27\nofficial who did not have the power to arrest the person;28\nand29\n(b) the statement was made, or the act was done, after the30\ninvestigating official formed a belief that there was31\n\nEvidence Bill 2025\nExclusion of evidence Part 5\ns. 205\npage 163\nsufficient evidence to establish that the person has1\ncommitted an offence; and2\n(c) the investigating official did not, before the statement3\nwas made or the act was done, caution the person that4\nthe person does not have to say or do anything but that5\nanything the person does say or do may be used in6\nevidence.7\n(3) The caution must be given in, or translated into, a language in8\nwhich the person is able to communicate with reasonable9\nfluency, but need not be given in writing unless the person10\ncannot hear adequately.11\n(4) Subsections (1), (2) and (3) do not apply so far as any12\nAustralian law requires the person to answer questions put by,13\nor do things required by, the investigating official.14\n(5) A reference in subsection (1) to a person who is under arrest15\nincludes a reference to a person who is in the company of an16\ninvestigating official for the purpose of being questioned, if —17\n(a) the official believes that there is sufficient evidence to18\nestablish that the person has committed an offence that19\nis to be the subject of the questioning; or20\n(b) the official would not allow the person to leave if the21\nperson wished to do so; or22\n(c) the official has given the person reasonable grounds for23\nbelieving that the person would not be allowed to leave24\nif the person wished to do so.25\n(6) A person is not treated as being under arrest only because of26\nsubsection (5) if —27\n(a) the official is performing functions in relation to persons28\nor goods entering or leaving Australia and the official29\ndoes not believe the person has committed an offence30\nagainst a law of the Commonwealth; or31\n\nEvidence Bill 2025\nPart 5 Exclusion of evidence\ns. 206\npage 164\n(b) the official is exercising a power under an Australian1\nlaw to detain and search the person or to require the2\nperson to provide information or to answer questions.3\nCompare:4\nEvidence Act 1995 (Commonwealth) s. 1395\n206. Exclusion of certain evidence relating to complainant or6\nwitness7\n(1) The following evidence must not be adduced by or on behalf of8\nan accused in a criminal proceeding for a sexual offence —9\n(a) evidence relating to the sexual reputation of the10\ncomplainant;11\n(b) evidence relating to the disposition of the complainant in12\nsexual matters.13\n(2) In a criminal proceeding for a sexual offence, evidence relating14\nto the sexual experiences of the complainant, of any kind, at any15\ntime and with any person, other than the acts or omissions that16\nconstitute the offence, must not be adduced by or on behalf of17\nan accused except with the leave of the court.18\n(3) The following evidence must not be adduced in a civil19\nproceeding in which it is alleged that a witness is the victim of20\nsexual abuse or sexual harassment —21\n(a) evidence relating to the sexual reputation of the witness;22\n(b) evidence relating to the disposition of the witness in23\nsexual matters.24\n(4) In a civil proceeding in which it is alleged that a witness is the25\nvictim of sexual abuse or sexual harassment, evidence relating26\nto the sexual experiences of the witness, of any kind, at any time27\nand with any person, other than the acts or omissions that are28\nthe subject of the alleged sexual abuse or sexual harassment,29\nmust not be adduced except with the leave of the court.30\n\nEvidence Bill 2025\nExclusion of evidence Part 5\ns. 206\npage 165\n(5) An application for leave of the court mentioned in1\nsubsection (2) or (4) must be heard in the absence of the jury (if2\nany).3\n(6) The court must not grant leave under subsection (2) or (4)4\nunless satisfied that —5\n(a) the evidence has substantial probative value; and6\n(b) the probative value of the evidence outweighs any7\ndistress, humiliation or embarrassment that may be8\ncaused to the complainant or witness as a result of the9\nadmission of the evidence.10\n(7) This section does not affect the operation of section 50.11\n(8) Evidence that, because of this section, must not be adduced or12\ngiven in a proceeding is not admissible in the proceeding.13\nCompare:14\nEvidence Act 1906 s. 36A, 36B, 36BA and 36BC15","sortOrder":15},{"sectionNumber":"retrieval-0017","sectionType":"document_chunk","heading":"Document excerpt 17","content":"Evidence Bill 2025\nPart 6 Special arrangements for taking evidence\nDivision 1 Use of video links and audio links by courts and recognised\ncourts\ns. 207\npage 166\nPart 6 — Special arrangements for taking evidence1\nDivision 1 — Use of video links and audio links by courts and2\nrecognised courts3\n207. Terms used4\nIn this Division —5\ncorresponding legislation means any provisions of an Act of6\nanother State or a Territory that substantially correspond with7\nthis Division;8\nparticipating jurisdiction means —9\n(a) another State or a Territory in which corresponding10\nlegislation is in force; or11\n(b) any jurisdiction outside the State prescribed by the12\nregulations for the purposes of this definition to be a13\nparticipating jurisdiction;14\nrecognised court means a court or tribunal of a participating15\njurisdiction —16\n(a) that is authorised by corresponding legislation to direct17\nthat evidence be taken or a submission be made by video18\nlink or audio link from this State; or19\n(b) that is prescribed by the regulations for the purposes of20\nthis definition to be a recognised court.21\nCompare:22\nEvidence Act 1906 s. 12023\n208. Court may take evidence by video link or audio link24\n(1) A court may, by order, direct that evidence be taken or a25\nsubmission be received by video link or audio link from a26\nperson at a place, whether in or outside this State, that is outside27\nthe courtroom or other place where the court is sitting.28\n\nEvidence Bill 2025\nSpecial arrangements for taking evidence Part 6\nUse of video links and audio links by courts and recognised\ncourts\nDivision 1\ns. 209\npage 167\n(2) The order may be made —1\n(a) on the application of a party to the proceeding; or2\n(b) on the court’s own initiative.3\n(3) The court must not make the order unless satisfied that the video4\nlink or audio link is available or can reasonably be made5\navailable.6\n(4) The court must not make the order if satisfied that the direction7\nis not in the interests of justice.8\n(5) For the purposes of taking evidence or receiving a submission9\nby video link or audio link from a place in this State in10\naccordance with the direction, the place is taken to be part of the11\ncourt.12\n(6) For the purposes of taking evidence or receiving a submission13\nby video link or audio link from a place in a participating14\njurisdiction, the court may exercise in that place any of its15\npowers that the court is permitted, under the law of the16\njurisdiction, to exercise in that place.17\n(7) This section extends to a proceeding before a WA tribunal.18\nCompare:19\nEvidence Act 1906 s. 12120\n209. Counsel entitled to practise21\n(1) A person who is entitled to practise as the equivalent of legal22\ncounsel in a participating jurisdiction is entitled to practise as a23\nlegal practitioner in relation to —24\n(a) the examination, cross-examination or re-examination of25\na witness in the participating jurisdiction whose26\nevidence is being given by video link or audio link27\nbefore a court; and28\n(b) the making of a submission by video link or audio link29\nfrom the participating jurisdiction in a proceeding before30\na court.31\n\nEvidence Bill 2025\nPart 6 Special arrangements for taking evidence\nDivision 1 Use of video links and audio links by courts and recognised\ncourts\ns. 210\npage 168\n(2) This section extends to a proceeding before a WA tribunal.1\nCompare:2\nEvidence Act 1906 s. 1223\n210. Recognised court may take evidence or receive submission4\nin this State5\n(1) A recognised court may, for the purposes of a proceeding before6\nit, take evidence or receive a submission by video link or audio7\nlink from a person in this State.8\n(2) For the purposes of the proceeding the recognised court may9\nexercise in this State any of its powers in relation to the taking10\nof evidence or the receipt of a submission except its powers —11\n(a) to punish for contempt; and12\n(b) to enforce or execute its orders or process.13\n(3) The laws of the participating jurisdiction (including rules of14\ncourt) that apply to the proceeding in that jurisdiction also15\napply, by force of this subsection, to the practice and procedure16\nof the recognised court in taking evidence or receiving a17\nsubmission by video link or audio link from a person in this18\nState.19\n(4) For the purposes of the court exercising its powers under20\nsubsection (2), the place in this State where the evidence is21\ngiven or the submission is made is taken to be part of the court.22\n(5) Without limiting subsection (2), the recognised court may, by23\norder —24\n(a) direct that the proceeding, or a part of the proceeding, be25\nconducted in private; or26\n(b) require a person to leave a place in this State where the27\ngiving of evidence or the making of a submission is28\ntaking place or is going to take place; or29\n\nEvidence Bill 2025\nSpecial arrangements for taking evidence Part 6\nUse of video links and audio links by courts and recognised\ncourts\nDivision 1\ns. 211\npage 169\n(c) prohibit or restrict the publication of evidence given in1\nthe proceeding or of the name of a party to, or a witness2\nin, the proceeding.3\n(6) An order made by a recognised court under subsection (5) may4\nbe enforced by the Supreme Court as if it were an order of the5\nSupreme Court.6\n(7) Without limiting subsection (6), a person who contravenes the7\norder —8\n(a) is taken to be in contempt of the Supreme Court; and9\n(b) is punishable accordingly.10\n(8) Subsection (7) does not apply if the person establishes that the11\ncontravention should be excused.12\nCompare:13\nEvidence Act 1906 s. 123, 124, 125 and 12614\n211. Privileges, protection and immunity of participants in15\nproceeding in recognised court16\n(1) A judge in a proceeding before a recognised court has, in17\nconnection with evidence being taken or a submission being18\nreceived by video link or audio link from a person in this State,19\nthe same privileges, protection and immunity as a judge of the20\nSupreme Court.21\n(2) A person appearing as legal counsel in a proceeding before a22\nrecognised court (including a person entitled to practise under23\nsection 209(1)) has, in connection with evidence being taken or24\na submission being received by video link or audio link from a25\nperson in this State, the same protection and immunity as a legal26\npractitioner has in appearing for a party in a proceeding in the27\nSupreme Court.28\n(3) A person appearing as a witness in a proceeding before a29\nrecognised court by video link or audio link from this State has30\n\nEvidence Bill 2025\nPart 6 Special arrangements for taking evidence\nDivision 1 Use of video links and audio links by courts and recognised\ncourts\ns. 212\npage 170\nthe same protection as a witness in a proceeding in the Supreme1\nCourt.2\nCompare:3\nEvidence Act 1906 s. 1274\n212. Recognised court may administer oath in this State5\n(1) A recognised court may, for the purpose of obtaining by video6\nlink or audio link the testimony of a person in this State in a7\nproceeding, administer an oath or affirmation in accordance8\nwith the practice and procedure of the recognised court.9\n(2) Evidence given by a person on oath or affirmation is, for the10\npurposes of The Criminal Code, testimony given in a judicial11\nproceeding.12\nCompare:13\nEvidence Act 1906 s. 12814\n213. Assistance to recognised court15\nAn officer of a court or WA tribunal may, at the request of a16\nrecognised court —17\n(a) attend at the place in the State where evidence is to be or18\nis being given, or submissions are to be or are being19\nmade, in a proceeding before the recognised court; and20\n(b) take action as the recognised court directs to facilitate21\nthe proceeding; and22\n(c) assist with the administering by the recognised court of23\nan oath or affirmation.24\nCompare:25\nEvidence Act 1906 s. 12926\n\nEvidence Bill 2025\nSpecial arrangements for taking evidence Part 6\nUse of video links and audio links by courts and recognised\ncourts\nDivision 1\ns. 214\npage 171\n214. Contempt of recognised court1\n(1) A person must not, while evidence is being given or a2\nsubmission is being made in this State by video link or audio3\nlink in a proceeding before a recognised court —4\n(a) threaten, intimidate or insult any of the following —5\n(i) a judge in the proceeding;6\n(ii) a master, registrar, deputy registrar or other7\nofficer of that court who is taking part in or8\nassisting in the proceeding;9\n(iii) a person appearing in the proceeding as legal10\ncounsel (including a person entitled to practise11\nunder section 209(1));12\n(iv) a witness in the proceeding;13\n(v) a juror in the proceeding;14\nor15\n(b) interrupt or obstruct the proceeding; or16\n(c) without lawful excuse disobey an order or direction of17\nthe court.18\n(2) A person who contravenes subsection (1) —19\n(a) is taken to be in contempt of the Supreme Court; and20\n(b) is punishable accordingly.21\nCompare:22\nEvidence Act 1906 s. 13023\n215. Operation of other laws24\n(1) This Division does not affect the operation of any other law of25\nthe State that makes provision for the taking of evidence or the26\nmaking of a submission —27\n(a) in the State for the purpose of a proceeding in the State;28\nor29\n\nEvidence Bill 2025\nPart 6 Special arrangements for taking evidence\nDivision 2 Examination of witnesses outside the State\ns. 216\npage 172\n(b) outside the State for the purpose of a proceeding in the1\nState; or2\n(c) in the State for the purpose of a proceeding outside the3\nState.4\n(2) This Division does not affect the operation of Part 7.5\nCompare:6\nEvidence Act 1906 s. 1327\nDivision 2 — Examination of witnesses outside the State8\n216. Terms used9\n(1) In this Division —10\nexamination includes any proceeding for the taking of evidence11\nof a person conducted by a judicial authority of a foreign12\ncountry in relation to a request issued as a result of an order13\nmade by a court under this Act;14\nextra-territorial examination order has the meaning given in15\nsection 217(1);16\ninferior court means a court, except when exercising federal17\njurisdiction, not being a superior court;18\njudicial authority, in relation to a place outside the State, means19\na court or person prescribed by the regulations for the purposes20\nof this definition as an appropriate judicial authority for that21\nplace.22\n(2) A reference in this Division to a place outside the State is a23\nreference to a place outside the State whether within or outside24\nAustralia.25\nCompare:26\nEvidence Act 1906 s. 10927\n\nEvidence Bill 2025\nSpecial arrangements for taking evidence Part 6\nExamination of witnesses outside the State Division 2\ns. 217\npage 173\n217. Court may make extra-territorial examination order1\n(1) A court may make any of the following orders (each an2\nextra-territorial examination order) in relation to any person3\noutside the State —4\n(a) an order for the examination of the person on oath or5\naffirmation at any place outside the State before a judge6\nof the court, an officer of the court or any other person7\nthe court appoints;8\n(b) an order for the issue of a commission for the9\nexamination of the person on oath or affirmation at any10\nplace outside the State;11\n(c) an order for the issue of a request to a judicial authority12\nof a place outside the State to take, or to cause to be13\ntaken, the evidence of the person.14\n(2) An extra-territorial examination order may be made —15\n(a) only by a superior court; and16\n(b) only if it appears to the court that it is in the interests of17\njustice to do so.18\n(3) A superior court may make an extra-territorial examination19\norder for the purpose of any proceeding before the superior20\ncourt, on application by a party to the proceeding.21\n(4) The Supreme Court may also make an extra-territorial22\nexamination order for the purpose of any proceeding before an23\ninferior court, on application by a party to the proceeding.24\n(5) In determining whether it is in the interests of justice to make an25\nextra-territorial examination order, the matters to which the26\ncourt must have regard include the following —27\n(a) whether the person is willing or able to come to the28\nState to give evidence in the proceeding;29\n(b) whether the person will be able to give evidence30\nmaterial to any fact in issue in the proceeding;31\n\nEvidence Bill 2025\nPart 6 Special arrangements for taking evidence\nDivision 2 Examination of witnesses outside the State\ns. 218\npage 174\n(c) whether, having regard to the interests of the parties to1\nthe proceeding, justice will be better served by granting2\nor refusing the order.3\n(6) If a court makes an extra-territorial examination order of the4\nkind referred to in subsection (1)(a) or (b), the court may, at the5\ntime of the making of the order or at a subsequent time, give6\ndirections relating to the procedure to be followed in and in7\nrelation to the examination, including directions as to the time,8\nplace and manner of the examination, and to any other matter9\nthat the court thinks relevant.10\n(7) If a court makes an extra-territorial examination order of the11\nkind referred to in subsection (1)(c), the court may include in12\nthe order a request as to any matter relating to the taking of13\nevidence from the person concerned, including any of the14\nfollowing matters —15\n(a) the examination, cross-examination or re-examination of16\nthe person, whether the evidence of the person is given17\norally, on affidavit or otherwise;18\n(b) the attendance of the legal counsel of each party to the19\nproceeding and the participation of those persons in the20\nexamination in appropriate circumstances;21\n(c) any matter prescribed by the regulations for the purposes22\nof this paragraph.23\nCompare:24\nEvidence Act 1906 s. 110 and 11125\n218. Admission of evidence taken under extra-territorial26\nexamination order27\n(1) A court may permit a party to tender the following evidence in a28\nproceeding —29\n(a) evidence of a person taken in an examination held as a30\nresult of an extra-territorial examination order that was31\nmade for the purpose of that proceeding;32\n\nEvidence Bill 2025\nSpecial arrangements for taking evidence Part 6\nExamination of witnesses outside the State Division 2\ns. 218\npage 175\n(b) a record of the evidence referred to in paragraph (a).1\n(2) However, evidence of a person must not be admitted under this2\nsection if —3\n(a) at the hearing of the proceeding the court is satisfied that4\nthe person is in the State and is able to attend the5\nhearing; or6\n(b) the evidence would not have been admissible had it been7\ngiven or produced at the hearing of the proceeding.8\n(3) The court may exclude from the proceeding evidence taken in9\nan examination held as a result of an extra-territorial10\nexamination order, even though it is otherwise admissible, if it11\nis in the interests of justice to do so.12\n(4) If evidence is admitted under this section, the hearsay rule does13\nnot apply to evidence of a previous representation taken in an14\nexamination, but only if the evidence would have been15\nadmissible had it been given or produced at the hearing of the16\nproceeding.17\n(5) This section extends to the following evidence —18\n(a) a document produced at an examination;19\n(b) answers made, whether in writing, or orally and reduced20\nto writing, to any written interrogatories presented at an21\nexamination.22\n(6) This section does not affect the functions of the court under23\nPart 5.24\nCompare:25\nEvidence Act 1906 s. 110, 111 and 11226\n\nEvidence Bill 2025\nPart 6 Special arrangements for taking evidence\nDivision 3 Assistance to other Australian courts and foreign courts\ns. 219\npage 176\n219. Operation of other laws1\nThis Division does not affect the operation of any other law of2\nthe State that makes provision for the examination of witnesses3\noutside the State for the purpose of a proceeding in the State.4\nCompare:5\nEvidence Act 1906 s. 1136\n220. Regulations and rules of court7\n(1) The regulations may make further provision for extra-territorial8\nexamination orders and, in particular, for the practice and9\nprocedure of a superior court in a proceeding for the making of10\nan extra-territorial examination order.11\n(2) The power of a person or body to make rules of court extends to12\nmaking rules, not inconsistent with this Act or the regulations,13\nregulating the practice and procedure of a superior court in a14\nproceeding for the making of an extra-territorial examination15\norder.16\nCompare:17\nEvidence Act 1906 s. 11418\nDivision 3 — Assistance to other Australian courts and foreign19\ncourts20\n221. Terms used21\n(1) In this Division —22\nassistance application has the meaning given in section 222(1);23\nassistance order has the meaning given in section 223(1);24\nrequesting court means a court or tribunal that issues a request25\nor on behalf of which a request is issued, as referred to in26\nsection 223(1)(a).27\n(2) A reference in this Division to a proceeding before a court or28\ntribunal includes a reference to a proceeding the institution of29\nwhich before a court or tribunal is contemplated.30","sortOrder":16},{"sectionNumber":"retrieval-0018","sectionType":"document_chunk","heading":"Document excerpt 18","content":"Evidence Bill 2025\nSpecial arrangements for taking evidence Part 6\nAssistance to other Australian courts and foreign courts Division 3\ns. 222\npage 177\n(3) A reference in this Division to a request issued by or on behalf1\nof a court or tribunal includes a reference to any commission,2\norder or other process issued by or on behalf of a court or3\ntribunal.4\nCompare:5\nEvidence Act 1906 s. 1156\n222. Application to Supreme Court for assistance7\n(1) This Division applies if an application (an assistance8\napplication) is made to the Supreme Court for assistance in9\nobtaining evidence in the State for the purposes of a proceeding10\nbefore a court or tribunal exercising jurisdiction in a place11\noutside the State.12\n(2) This Division applies only if the proceeding to which the13\nassistance application relates is —14\n(a) a criminal proceeding before a court exercising15\njurisdiction in a place outside the State that is in16\nAustralia or New Zealand; or17\n(b) a civil proceeding.18\nCompare:19\nEvidence Act 1906 s. 11620\n223. Supreme Court may make order to assist in obtaining21\nevidence22\n(1) The Supreme Court may, on an assistance application, make an23\norder (an assistance order) for obtaining evidence in the State if24\nsatisfied that —25\n(a) the assistance application is made for the purposes of a26\nrequest issued by or on behalf of a court or tribunal27\nexercising jurisdiction in a place outside the State; and28\n(b) the evidence to which the assistance application relates29\nis to be obtained for the purposes of a proceeding before30\nthe requesting court.31\n\nEvidence Bill 2025\nPart 6 Special arrangements for taking evidence\nDivision 3 Assistance to other Australian courts and foreign courts\ns. 223\npage 178\n(2) An assistance order may include any provisions the Supreme1\nCourt considers appropriate for the purpose of giving effect to2\nthe request to which the assistance application relates.3\n(3) An assistance order may require a specified person to take any4\nsteps the Supreme Court considers appropriate for the purpose5\nof giving effect to the request to which the assistance6\napplication relates.7\n(4) Without limiting subsection (2) or (3), an assistance order may8\nmake provision for the following —9\n(a) the examination of witnesses, either orally or in writing;10\n(b) the production of documents;11\n(c) the inspection, photographing, preservation, custody or12\ndetention of any property;13\n(d) the taking of samples of any property and the carrying14\nout of any experiments on or with any property;15\n(e) the medical examination of any person;16\n(f) without limiting paragraph (e), the taking and testing of17\nsamples of blood from any person.18\n(5) An assistance order must not include a requirement unless that19\nrequirement could be made to obtain evidence for the purposes20\nof a proceeding in the Supreme Court (whether or not a21\nproceeding of the same description as the proceeding to which22\nthe assistance application relates).23\n(6) Subsection (5) does not prevent the making of an order24\nrequiring a person to give testimony (either orally or in writing)25\notherwise than on oath or affirmation if that is requested by the26\nrequesting court.27\n(7) An assistance order must not require a person —28\n(a) to state what documents relevant to the proceeding to29\nwhich the assistance application relates are or have been30\nin the person’s possession, custody or power; or31\n\nEvidence Bill 2025\nSpecial arrangements for taking evidence Part 6\nAssistance to other Australian courts and foreign courts Division 3\ns. 224\npage 179\n(b) to produce any documents other than particular1\ndocuments specified in the order and appearing to the2\nSupreme Court to be, or to be likely to be, in the3\nperson’s possession, custody or power.4\n(8) A person who is required to attend any place under an assistance5\norder is entitled to any allowances and expenses that the person6\nwould be entitled to on attendance as a witness in a proceeding7\nbefore the Supreme Court.8\nCompare:9\nEvidence Act 1906 s. 116 and 11710\n224. Privilege of witnesses11\n(1) A person must not be compelled by an assistance order to give12\nany evidence for the purpose of a proceeding before a13\nrequesting court if the person could not be compelled to give the14\nevidence —15\n(a) in a similar proceeding in the State; or16\n(b) in a similar proceeding in the place in which the17\nrequesting court exercises jurisdiction.18\n(2) Subsection (1)(b) does not apply unless the claim of the person19\nto be exempt from giving evidence is either —20\n(a) supported by a statement contained in the request of the21\nrequesting court (whether unconditionally or subject to22\nconditions); or23\n(b) conceded by the applicant for the assistance order.24\n(3) If a claim by a person to be exempt from giving evidence is not25\nsupported or conceded as referred to in subsection (2), the26\nperson may (subject to subsection (1)(a)) be required to give the27\nevidence to which the claim relates but that evidence must not28\nbe transmitted to the requesting court unless —29\n(a) the claim is referred to the requesting court; and30\n(b) the requesting court dismisses the claim.31\n\nEvidence Bill 2025\nPart 6 Special arrangements for taking evidence\nDivision 3 Assistance to other Australian courts and foreign courts\ns. 225\npage 180\n(4) In this section —1\n(a) a reference to giving evidence includes a reference to2\nproducing any document or thing; and3\n(b) a reference to transmitting evidence given includes a4\nreference to transmitting any document or thing that is5\nproduced.6\nCompare:7\nEvidence Act 1906 s. 1188\n225. Rules of court9\n(1) The Supreme Court may make rules of court under the Supreme10\nCourt Act 1935 for or with respect to the following —11\n(a) the manner in which an assistance application must be12\nmade;13\n(b) the circumstances in which an assistance order may be14\nmade;15\n(c) the manner in which a claim of a person to be exempt16\nfrom giving evidence under an assistance order must be17\nmade;18\n(d) any other matters that are necessary or convenient for19\ncarrying out or giving effect to this Division.20\n(2) Subsection (1) does not limit the rule-making powers conferred21\nby the Supreme Court Act 1935.22\nCompare:23\nEvidence Act 1906 s. 118A24\n226. Offence of giving false testimony25\nA person who, in giving any testimony (either orally or in26\nwriting) otherwise than on oath or affirmation when required to27\ndo so by an assistance order, makes a statement that the person28\nknows is false or that the person does not believe is true29\ncommits a crime.30\nPenalty: imprisonment for 7 years.31\n\nEvidence Bill 2025\nSpecial arrangements for taking evidence Part 6\nAssistance to other Australian courts and foreign courts Division 3\ns. 227\npage 181\nCompare:1\nEvidence Act 1906 s. 118B2\n227. Operation of other laws3\nThis Division does not affect the operation of any other law of4\nthe State that makes provision for the taking of evidence in the5\nState for the purpose of a proceeding outside the State.6\nCompare:7\nEvidence Act 1906 s. 118C8\n\nEvidence Bill 2025\nPart 7 Witness assistance measures\nDivision 1 Preliminary\ns. 228\npage 182\nPart 7 — Witness assistance measures1\nDivision 1 — Preliminary2\n228. Terms used3\n(1) In this Part —4\naffected child, in relation to a child protection proceeding,5\nmeans the child in respect of whom an application under the6\nChildren and Community Services Act 2004 Part 4 is made;7\nalter —8\n(a) a recording, includes edit the recording; and9\n(b) a transcript of a recording, includes edit the transcript;10\nchild protection proceeding —11\n(a) means protection proceedings as defined in the Children12\nand Community Services Act 2004 section 3; and13\n(b) includes any related proceedings and any protection14\nproceedings dealt with under Part 5 of that Act;15\ndestroy, a recording, includes —16\n(a) erase, delete or obliterate all or any part of the recording;17\nand18\n(b) render any images or sounds recorded in the recording19\nirrecoverable;20\nout-of-court representation has the meaning given in21\nsection 235;22\npre-recording procedure means a procedure by which a23\nwitness’s evidence in a proceeding is given at a special hearing24\n(as defined in section 261) and recorded on a visual recording25\nthat is later presented to the court;26\nrecorded interview has the meaning given in section 251;27\nrecorded statement has the meaning given in section 239;28\n\nEvidence Bill 2025\nWitness assistance measures Part 7\nPreliminary Division 1\ns. 228\npage 183\nspecial procedure for giving evidence means any of the1\nfollowing procedures for giving evidence —2\n(a) a pre-recording procedure;3\n(b) a video link separation procedure;4\n(c) a screening procedure;5\nspecial witness means a witness in a proceeding —6\n(a) who must be treated as a special witness under7\nsection 229; or8\n(b) who the court declares to be a special witness under9\nsection 230;10\nvisual recording —11\n(a) means any recording on any medium from which a12\nmoving image may be produced by any means; and13\n(b) includes the accompanying soundtrack;14\nwitness assessment has the meaning given in section 289(1);15\nwitness intermediary means a person appointed as a witness16\nintermediary for a witness in a proceeding under section 291(1).17\n(2) A provision of this Part that applies to a child protection18\nproceeding applies as if —19\n(a) a reference to an accused were a reference to any party20\nto the proceeding, other than the affected child or an21\napplicant under the Children and Community Services22\nAct 2004 Part 4 or 5 who is an officer as defined in23\nsection 3 of that Act; and24\n(b) a reference to a complainant were a reference to the25\naffected child.26\nCompare:27\nEvidence Act 1906 s. 106A28\n\nEvidence Bill 2025\nPart 7 Witness assistance measures\nDivision 1 Preliminary\ns. 229\npage 184\n229. Witnesses who must be treated as special witness1\n(1) In a criminal proceeding, a witness must be treated as a special2\nwitness —3\n(a) if the proceeding is a proceeding in a superior court for a4\nsexual offence and the witness is the complainant; or5\n(b) if the proceeding is for a criminal or identified6\norganisation offence and the witness is —7\n(i) the complainant; or8\n(ii) any witness for the prosecution;9\nor10\n(c) if the proceeding is a proceeding in a superior court for a11\nfamily violence offence and the witness is the12\ncomplainant; or13\n(d) if the witness has a mental impairment that affects the14\nwitness’s ability to give evidence; or15\n(e) in any other circumstances specified in the regulations16\nfor the purposes of this paragraph.17\n(2) A power to specify circumstances conferred by18\nsubsection (1)(e) includes a power to specify circumstances by19\nreference to any of the following —20\n(a) the type of offence to which the proceeding relates;21\n(b) the characteristics of the witness;22\n(c) the court in which the proceedings are heard.23\n(3) In deciding whether a witness must be treated as a special24\nwitness under subsection (1)(d) or (e), a court may inform itself25\nas it thinks fit.26\n\nEvidence Bill 2025\nWitness assistance measures Part 7\nPreliminary Division 1\ns. 230\npage 185\n230. Witnesses who may be declared to be special witness1\n(1) A court may, by order, declare a witness to be a special witness2\nin a proceeding if the court is of the opinion that, unless the3\nwitness is treated as a special witness, the witness —4\n(a) is unlikely to be able to give evidence, or to give5\nevidence satisfactorily, because of a disability; or6\n(b) is likely to be intimidated or distressed, because of age,7\ncultural background, relationship to any party in the8\nproceeding, the nature of the subject matter of the9\nevidence or any other factor that the court considers10\nrelevant.11\n(2) An order under this section may be made —12\n(a) on application by a party to the proceeding, on notice to13\nthe other parties; or14\n(b) on the court’s own initiative.15\n(3) The court must be satisfied that it is in the interests of justice to16\nmake the order.17\n(4) The court may at any time vary or revoke an order under this18\nsection.19\n(5) If the proceeding in which a person is declared to be a special20\nwitness is a proceeding before a jury, the court must instruct the21\njury that —22\n(a) the making of the declaration is a routine practice of the23\ncourt; and24\n(b) the jury should not draw any inference as to the guilt of25\nan accused or the culpability of a party from the making26\nof the declaration on the court’s own initiative.27\n(6) In deciding whether to make, vary or revoke an order declaring28\na witness to be a special witness, the court may inform itself as29\nit thinks fit.30\n\nEvidence Bill 2025\nPart 7 Witness assistance measures\nDivision 2 Support and communication assistance for children and\nspecial witnesses\ns. 231\npage 186\n(7) This section does not apply in respect of a witness if the witness1\nmust be treated as a special witness under section 229.2\nCompare:3\nEvidence Act 1906 s. 106R4\nDivision 2 — Support and communication assistance for5\nchildren and special witnesses6\n231. Use of support person7\n(1) The following witnesses are entitled, while giving evidence in a8\nproceeding, to have a person nearby to provide the witness with9\nsupport —10\n(a) a witness who is a child when the proceeding11\ncommences;12\n(b) a special witness.13\n(2) The person who provides support must be a person approved by14\nthe court and must not be a person who is a witness in, or a15\nparty to, the proceeding.16\nCompare:17\nEvidence Act 1906 s. 106E and 106R(4)(a)18\n232. Use of support animal19\n(1) The following witnesses may, with the approval of the court,20\nhave an animal (a support animal) nearby to provide the21\nwitness with support while the witness is giving evidence —22\n(a) a witness who is a child when the proceeding23\ncommences;24\n(b) a special witness.25\n(2) The use of the support animal must comply with any26\nrequirements imposed by the court or prescribed by the27\nregulations for the purposes of this subsection.28\n\nEvidence Bill 2025\nWitness assistance measures Part 7\nSupport and communication assistance for children and\nspecial witnesses\nDivision 2\ns. 233\npage 187\n(3) This section does not affect any entitlement that a person with a1\ndisability has to be accompanied by an assistance animal as2\ndefined in the Disability Discrimination Act 19923\n(Commonwealth) section 9(2).4\n233. Use of communicator5\n(1) A court may, on its own initiative or on the application of a6\nparty, appoint a person to act as a communicator for a witness7\nwhile the witness is giving evidence if —8\n(a) the witness is a child when the proceeding commences9\nor a special witness; and10\n(b) the court considers it in the interests of justice to do so.11\n(2) The functions of the person acting as a communicator are, if12\nrequested by the judge, to communicate and explain —13\n(a) to the witness, questions put to the witness; and14\n(b) to the court, evidence given by the witness.15\n(3) The use of a communicator must comply with any requirements16\nimposed by the court or prescribed by the regulations for the17\npurposes of this subsection.18\n(4) The court may appoint any person it considers suitable and19\ncompetent to act as a communicator for a witness under this20\nsection, including a family member or carer.21\n(5) It is not necessary for the person appointed as a communicator22\nto have any particular training, study or experience.23\n(6) A person appointed to act as a communicator must either take24\nan oath or make an affirmation, in a form directed by the court,25\nthat the person will exercise the person’s functions as a26\ncommunicator to the best of the person’s ability.27\n(7) A person who, while performing or purporting to perform a28\nfunction as a communicator under this section, makes any29\nstatement the person knows to be false or misleading to a30\nwitness or the court commits a crime.31\n\nEvidence Bill 2025\nPart 7 Witness assistance measures\nDivision 3 Admission of out-of-court representations\ns. 234\npage 188\nPenalty for this subsection: imprisonment for 5 years.1\nSummary conviction penalty for this subsection: imprisonment2\nfor 2 years or a fine of $24 000.3\nCompare:4\nEvidence Act 1906 s. 106F and 106R(4)(b)5\nDivision 3 — Admission of out-of-court representations6\n234. Application of Division7\nThis Division applies to the following proceedings —8\n(a) a criminal proceeding for a sexual offence if the9\ncomplainant is a child when the proceeding commences;10\n(b) a criminal proceeding for a family violence offence if11\nthe complainant is a child when the proceeding12\ncommences;13\n(c) a child protection proceeding.14\nCompare:15\nEvidence Act 1906 s. 106H and Schedule 716\n235. Term used: out-of-court representation17\nIn this Division —18\nout-of-court representation —19\n(a) means a representation that relates to a fact in issue in a20\nproceeding to which this Division applies and that was21\nmade by a person to another person before the22\nproceeding commenced, whether or not it is recorded;23\nbut24\n(b) does not include —25\n(i) a recorded statement that is admissible under26\nDivision 4; or27","sortOrder":17},{"sectionNumber":"retrieval-0019","sectionType":"document_chunk","heading":"Document excerpt 19","content":"Evidence Bill 2025\nWitness assistance measures Part 7\nAdmission of out-of-court representations Division 3\ns. 236\npage 189\n(ii) a recorded interview that is admissible under1\nDivision 5.2\nCompare:3\nEvidence Act 1906 s. 106H(3)4\n236. Admission of out-of-court representations5\n(1) A court may admit into evidence an out-of-court representation6\nmade by a complainant if —7\n(a) a transcript of the out-of-court representation or, if the8\nout-of-court representation is not recorded in writing or9\nelectronically, details of the out-of-court representation10\nhave been given to the accused and the accused’s legal11\ncounsel; and12\n(b) in the case of an out-of-court representation made to a13\npolice officer of this State that is recorded in a visual14\nrecording or audio recording —15\n(i) a copy of the recording has been given to the16\naccused’s legal counsel; or17\n(ii) if the accused is not represented by legal counsel,18\nthe accused has been given a reasonable19\nopportunity, in accordance with the regulations,20\nto view the recording (if it is a visual recording)21\nor to hear the recording (if it is an audio22\nrecording);23\nand24\n(c) in the case of an out-of-court representation that is25\nrecorded in a visual recording or audio recording, and26\nwhich is not an out-of-court representation made to a27\npolice officer of this State, a copy of the recording has28\nbeen given to the accused and the accused’s legal29\ncounsel; and30\n(d) the accused is given an opportunity to cross-examine the31\ncomplainant.32\n\nEvidence Bill 2025\nPart 7 Witness assistance measures\nDivision 3 Admission of out-of-court representations\ns. 236\npage 190\n(2) Subsection (1)(b) and (c) refer to a copy of the original1\nrecording of an out-of-court representation that has not been2\naltered, even if an altered version is to be played to the court.3\n(3) If an out-of-court representation is admitted, evidence of the4\nmaking and content of the out-of-court representation must be5\ngiven by the person to whom the complainant made the6\nout-of-court representation.7\n(4) If an out-of-court representation is recorded in a written8\nstatement made in accordance with the Criminal Procedure9\nAct 2004 Schedule 3 clause 4(1), the written statement may be10\nadmitted as evidence of the making and content of the11\nout-of-court representation by the complainant.12\n(5) If an out-of-court representation is recorded in a visual13\nrecording or an audio recording, the recording may be admitted14\nas evidence of the making and content of the out-of-court15\nrepresentation by the complainant.16\n(6) An out-of-court representation may be admitted into evidence17\nwhether or not the complainant is to give evidence in chief in18\nthe proceeding.19\n(7) The admission of an out-of-court representation does not20\nprevent a recorded interview or recorded statement being21\nadmitted as the evidence in chief of a complainant.22\n(8) This section does not affect the operation of section 57.23\n(9) In a child protection proceeding, this section does not affect the24\noperation of the Children and Community Services Act 200425\nsection 150.26\n(10) The accused is not entitled to be in possession of, or of a copy27\nof —28\n(a) a visual recording or audio recording of an out-of-court29\nrepresentation made to a police officer of this State; or30\n(b) any visual recording or audio recording of evidence that31\nincorporates a visual recording or audio recording of an32\n\nEvidence Bill 2025\nWitness assistance measures Part 7\nAdmission of recorded statements Division 4\ns. 237\npage 191\nout-of-court representation made to a police officer of1\nthis State.2\nCompare:3\nEvidence Act 1906 s. 106H4\n237. Application of rules of evidence5\n(1) The hearsay rule does not prevent the admission or use of6\nevidence of an out-of-court representation to prove the existence7\nof an asserted fact.8\n(2) The opinion rule does not prevent the admission or use of9\nevidence of an opinion expressed by a complainant in an10\nout-of-court representation to prove the existence of a fact about11\nthe existence of which the opinion was expressed.12\nDivision 4 — Admission of recorded statements13\n238. Application of Division14\n(1) This Division applies to the following proceedings —15\n(a) a criminal proceeding for a family violence offence;16\n(b) any other criminal proceeding in the circumstances17\nspecified in the regulations for the purposes of this18\nparagraph.19\n(2) A power to specify circumstances conferred by20\nsubsection (1)(b) includes a power to specify circumstances by21\nreference to any of the following —22\n(a) the type of offence to which the proceeding relates;23\n(b) the characteristics of the complainant;24\n(c) the court in which the proceedings are heard.25\n(3) This Division and the regulations under this Division have26\neffect in addition to, and do not limit the operation of, any other27\nprovision of this Act or any written law or principle or rule of28\ncommon law or equity under which a recorded statement is29\nadmissible in a proceeding.30\n\nEvidence Bill 2025\nPart 7 Witness assistance measures\nDivision 4 Admission of recorded statements\ns. 239\npage 192\n239. Terms used1\nIn this Division —2\nrecorded statement means a visual recording or audio recording3\nof a statement made by a person to a police officer about an4\noffence, not being a statement made by a person accused of the5\noffence;6\nstatement admissibility regulations has the meaning given in7\nsection 241(1).8\n240. Recorded statement admissible as evidence in chief9\n(1) A recorded statement of a complainant is admissible under this10\nDivision as the whole or part of the evidence in chief of the11\ncomplainant if the court is satisfied that —12\n(a) the complainant consented to the creation of the13\nrecorded statement; and14\n(b) the recorded statement was created as soon as15\npracticable after the commission of the offence to which16\nthe proceeding relates; and17\n(c) at the time the recorded statement was created, the18\ncomplainant —19\n(i) had reached 18 years of age; and20\n(ii) was competent to give sworn or unsworn21\nevidence; and22\n(iii) was capable of giving consent to the creation of23\nthe recorded statement;24\nand25\n(d) in the recorded statement, the complainant —26\n(i) states or confirms the complainant’s name and27\nage; and28\n(ii) indicates consent to the creation of the recorded29\nstatement; and30\n\nEvidence Bill 2025\nWitness assistance measures Part 7\nAdmission of recorded statements Division 4\ns. 240\npage 193\n(iii) makes a declaration to the effect of1\nsubsection (2);2\nand3\n(e) the police officer who created the recorded statement —4\n(i) was qualified to create the recorded statement5\nunder the statement admissibility regulations;6\nand7\n(ii) complied with the Criminal Investigation8\nAct 2006 section 124B(3);9\nand10\n(f) the recorded statement meets any other requirements of11\nthe statement admissibility regulations to the extent12\nrequired by those regulations.13\n(2) The declaration required under subsection (1)(d)(iii) is as14\nfollows —15\nThis statement is true to the best of my knowledge and belief.16\nI have made this statement knowing that, if it is tendered in17\nevidence, I will be guilty of an offence if I have included in18\nthe statement anything that I know to be false or that I do not19\nbelieve is true.20\n(3) A person who, in a recorded statement that is tendered in21\nevidence, makes a declaration to the effect of subsection (2) and22\nincludes anything in the statement that the person knows is false23\nor that the person does not believe is true, commits a crime.24\nPenalty for this subsection: imprisonment for 7 years.25\n(4) A recorded statement is admissible under this Division —26\n(a) even if the person who made the statement that is27\nrecorded is capable of giving evidence at the28\nproceeding; and29\n(b) even if the recorded statement was created before the30\nproceeding commenced.31\n\nEvidence Bill 2025\nPart 7 Witness assistance measures\nDivision 4 Admission of recorded statements\ns. 241\npage 194\n241. Statement admissibility regulations1\n(1) Regulations made for the purposes of this section (the statement2\nadmissibility regulations) may specify requirements relating to3\nthe admission of a recorded statement under this Division,4\nincluding, without limitation, relating to the following —5\n(a) the class of police officers who are qualified to create a6\nrecorded statement;7\n(b) the manner in which a statement must be created;8\n(c) the manner in which a statement must be recorded;9\n(d) the extent to which any specified requirements must be10\nmet.11\n(2) The statement admissibility regulations may specify the class of12\npolice officers who are qualified to create a recorded statement13\nby reference to the office or position held by the police officer,14\nby reference to training or experience, or a combination of those15\ncriteria.16\n(3) The requirements specified by the statement admissibility17\nregulations may be different for different classes of18\ncomplainant.19\n242. Statement must be provided to accused20\n(1) A court must not admit a recorded statement under this Division21\nunless —22\n(a) a transcript of the recorded statement has been given to23\nthe accused and the accused’s legal counsel; and24\n(b) a copy of the recorded statement has been given to the25\naccused’s legal counsel; and26\n(c) if the accused is not represented by legal counsel, the27\naccused has been given a reasonable opportunity, in28\naccordance with the regulations, to view the recorded29\nstatement (if it is a visual recording) or hear the recorded30\nstatement (if it is an audio recording).31\n\nEvidence Bill 2025\nWitness assistance measures Part 7\nAdmission of recorded statements Division 4\ns. 243\npage 195\n(2) Subsection (1)(b) and (c) refer to a copy of the original version1\nof the recorded statement that has not been altered, even if an2\naltered version is to be played to the court.3\n(3) The accused is not entitled to be in possession of, or of a copy4\nof —5\n(a) a recorded statement; or6\n(b) any visual recording or audio recording of evidence that7\nincorporates a recorded statement.8\n243. Accused must be given opportunity to cross-examine9\ncomplainant10\n(1) A court must not admit a recorded statement under this Division11\nunless the accused is given an opportunity to cross-examine the12\ncomplainant.13\n(2) Subsection (1) does not apply if the court is satisfied that —14\n(a) the complainant is not available to give evidence; or15\n(b) the complainant is out of the State and is not able to give16\nevidence at the proceeding by means of a video link or17\nan audio link, even if the witness might return at some18\nfuture time; or19\n(c) the complainant is being kept out of the way by the20\naccused; or21\n(d) all the parties consent and the interests of justice do not22\nrequire the presence of the complainant.23\n(3) However, if there is a prospect that the complainant, in the24\ncircumstances referred to in subsection (2)(a), might become25\navailable to give evidence, the court need not admit the26\nstatement but may adjourn the hearing of the proceeding.27\n(4) Subsection (1) does not prevent any further evidence of the28\ncomplainant being given under a special procedure for giving29\nevidence.30\n(5) This section does not affect the operation of section 57.31\n\nEvidence Bill 2025\nPart 7 Witness assistance measures\nDivision 4 Admission of recorded statements\ns. 244\npage 196\n244. Application of rules of evidence1\n(1) The hearsay rule does not prevent the admission or use of2\nevidence of a representation made by a complainant in a3\nrecorded statement to prove the existence of an asserted fact.4\n(2) The opinion rule does not prevent the admission or use of5\nevidence of an opinion expressed by a complainant in a6\nrecorded statement to prove the existence of a fact about the7\nexistence of which the opinion was expressed.8\n(3) The rule that leading questions must not be put to a witness in9\nexamination in chief provided for in section 46 does not prevent10\na court from allowing any part of a recorded statement to be11\nadmitted as the evidence in chief of a complainant if the court is12\nsatisfied that the manner in which the recorded statement was13\ncreated meets the requirements of the statement admissibility14\nregulations to the extent required by those regulations.15\n245. Presentation of recorded statement16\n(1) The court may give directions as to the manner in which a17\nrecorded statement must be presented to the court and the18\nexcision of matters from it.19\n(2) Without limiting subsection (1), the court may give any of the20\nfollowing directions —21\n(a) a direction that the recorded statement be played to the22\ncourt;23\n(b) a direction that the recorded statement be tendered to the24\ncourt;25\n(c) a direction that a transcript of the recorded statement be26\ntendered to the court.27\n(3) A jury in the proceeding may, with the leave of the court, be28\ngiven access to a transcript of a recorded statement.29\n\nEvidence Bill 2025\nWitness assistance measures Part 7\nAdmission of recorded statements Division 4\ns. 246\npage 197\n246. Further evidence1\nIf a recorded statement is admitted as all or part of the evidence2\nin chief of a complainant, the court may give directions as to —3\n(a) the manner in which further evidence in chief of the4\ncomplainant may be given at the proceeding; and5\n(b) the manner in which any cross-examination or6\nre-examination of the complainant must be conducted at7\nthe proceeding.8\n247. Presence of complainant not required during presentation of9\nstatement10\n(1) A complainant may, but is not required to, be present in the11\ncourtroom when a recorded statement of the complainant is12\nplayed to the court.13\n(2) The court may direct that arrangements be made that enable the14\ncomplainant to view the proceeding from outside the courtroom15\nwhen the recorded statement is played, by closed-circuit16\ntelevision or otherwise.17\n(3) The arrangements that enable the complainant to view the18\nproceeding from outside the courtroom must ensure that the19\ncomplainant is not visible or audible to anyone in the court,20\nother than the judge.21\n(4) Subsection (1) does not prevent the court from directing the22\ncomplainant to leave the courtroom while the recorded23\nstatement is played if the court considers it appropriate to do so24\nin the interests of justice.25\n248. Warning and comments to jury26\n(1) A judge in any proceeding before a jury in which a recorded27\nstatement is admitted under this Division as the whole or part of28\nthe evidence in chief of a person must instruct the jury that —29\n(a) the procedure is a routine practice of the court; and30\n\nEvidence Bill 2025\nPart 7 Witness assistance measures\nDivision 4 Admission of recorded statements\ns. 249\npage 198\n(b) the jury should not draw an inference as to the accused’s1\nguilt from the use of the procedure.2\n(2) In a proceeding before a jury, the judge, the accused or the3\naccused’s legal counsel must not comment to the jury about a4\nfailure by the prosecutor to adduce a recorded statement of a5\nperson as the evidence in chief of a person under this Division.6\n(3) Subsection (2) does not prevent a judge from directing the jury7\nabout a contravention of that subsection by the accused or the8\naccused’s legal counsel if it is in the interests of justice to do so.9\n249. Other regulations10\nThe regulations may make further provision for recorded11\nstatements that are admissible under this Division or created for12\nuse as evidence under this Division, including, without13\nlimitation, for or with respect to the following —14\n(a) the alteration, playing, custody, possession, storage,15\ncopying, transcription or destruction of recorded16\nstatements;17\n(b) the records that are to be kept about recorded18\nstatements;19\n(c) access to a recorded statement by the prosecutor for the20\npurposes of any proceeding in which the recorded21\nstatement may be admitted as evidence in chief of a22\nperson;23\n(d) access to and use of a recorded statement for the24\npurposes of any proceeding in the Children’s Court or25\nthe Family Court (whether or not it has been admitted in26\nevidence under this Division);27\n(e) access to and use of a recorded statement otherwise than28\nfor the purposes of a proceeding in which the statement29\nmay be admitted under this Division or as referred to in30\nparagraph (d);31\n\nEvidence Bill 2025\nWitness assistance measures Part 7\nAdmission of recorded interviews Division 5\ns. 250\npage 199\n(f) the manner in which compliance with any of the1\nrequirements for admissibility under this Division may2\nbe proved in a proceeding.3\nDivision 5 — Admission of recorded interviews4\n250. Application of Division5\n(1) This Division applies to a criminal proceeding.6\n(2) This Division, and the regulations under this Division, do not7\naffect the operation of any other provision of this Act or any8\nwritten law or principle or rule of common law or equity under9\nwhich a recorded interview is admissible in a proceeding.10\nCompare:11\nEvidence Act 1906 s. 106HD12\n251. Terms used13\nIn this Division —14\ninterview admissibility regulations has the meaning given in15\nsection 253(1);16\nrecorded interview means a visual recording of an interview17\nwith a person about an offence, not being an interview with a18\nperson accused of the offence.19\n252. Recorded interview admissible as evidence in chief20\n(1) A recorded interview with a person is admissible under this21\nDivision as the whole or part of the evidence in chief of the22\nperson in the following proceedings —23\n(a) a criminal proceeding for a sexual offence, if the person24\ninterviewed —25\n(i) is the complainant; and26\n(ii) was a child at the time of the offence (regardless27\nof the person’s age at the time of the interview);28","sortOrder":18},{"sectionNumber":"retrieval-0020","sectionType":"document_chunk","heading":"Document excerpt 20","content":"Evidence Bill 2025\nPart 7 Witness assistance measures\nDivision 5 Admission of recorded interviews\ns. 252\npage 200\n(b) any criminal proceeding, if the court is satisfied that the1\nperson interviewed —2\n(i) was a child at the time of the interview; or3\n(ii) is a person with a mental impairment who,4\nbecause of that mental impairment, is a special5\nwitness in the proceeding.6\n(2) The court must not admit the recorded interview under this7\nDivision unless —8\n(a) the court is satisfied that —9\n(i) the person who conducted the interview in the10\nrecorded interview was qualified to conduct the11\ninterview under the interview admissibility12\nregulations; and13\n(ii) the recorded interview meets any other14\nrequirements of the interview admissibility15\nregulations to the extent required by those16\nregulations;17\nand18\n(b) the accused is given an opportunity to cross-examine the19\nperson interviewed.20\n(3) A recorded interview with a person is admissible under this21\nDivision —22\n(a) whether or not the interview was conducted with the23\nconsent of a parent or guardian of the person; and24\n(b) irrespective of the age or maturity of the person at the25\ntime of the proceeding; and26\n(c) even if the person is capable of giving evidence at the27\nproceeding; and28\n(d) even if conducted before the proceeding commenced.29\n\nEvidence Bill 2025\nWitness assistance measures Part 7\nAdmission of recorded interviews Division 5\ns. 253\npage 201\n(4) This section does not affect the operation of section 57.1\nCompare:2\nEvidence Act 1906 s. 106HA and 106HB3\n253. Regulations may specify admissibility requirements for4\ninterviews5\n(1) Regulations made for the purposes of this section (the interview6\nadmissibility regulations) may specify requirements relating to7\nthe admission of recorded interviews under this Division,8\nincluding, without limitation, the following —9\n(a) the class of persons who are qualified to conduct the10\ninterview that is recorded;11\n(b) the manner in which the interview must be conducted;12\n(c) the manner in which the interview must be recorded;13\n(d) the information that must be recorded;14\n(e) requirements relating to apparent level of understanding15\nor cognitive functioning of the person being16\ninterviewed;17\n(f) the extent to which any specified requirements must be18\nmet.19\n(2) The interview admissibility regulations may specify the class of20\npersons who are qualified to conduct an interview by reference21\nto the office or position held by the person, by reference to22\ntraining or experience, or by a combination of those criteria.23\n(3) The requirements specified by the interview admissibility24\nregulations may be different for different classes of person25\ninterviewed.26\nCompare:27\nEvidence Act 1906 s. 106HC28\n\nEvidence Bill 2025\nPart 7 Witness assistance measures\nDivision 5 Admission of recorded interviews\ns. 254\npage 202\n254. Interview must be provided to accused1\n(1) A court must not admit a recorded interview under this Division2\nunless —3\n(a) a transcript of the interview has been given to the4\naccused and the accused’s legal counsel; and5\n(b) a copy of the recorded interview has been given to the6\naccused’s legal counsel; and7\n(c) if the accused is not represented by legal counsel, the8\naccused has been given a reasonable opportunity, in9\naccordance with the regulations, to view the recorded10\ninterview.11\n(2) Subsection (1)(b) and (c) refer to a copy of the original version12\nof the recorded interview that has not been altered, even if an13\naltered version is to be played to the court.14\n(3) The accused is not entitled to be in possession of, or of a copy15\nof —16\n(a) a recorded interview; or17\n(b) any visual recording or audio recording of evidence that18\nincorporates a recorded interview.19\nCompare:20\nEvidence Act 1906 s. 106HB(2) and (3)21\n255. Application of rules of evidence22\n(1) The hearsay rule does not prevent the admission or use of23\nevidence of a representation made by a person in a recorded24\ninterview to prove the existence of an asserted fact.25\n(2) The opinion rule does not prevent the admission or use of26\nevidence of an opinion expressed by a person in a recorded27\ninterview to prove the existence of a fact about the existence of28\nwhich the opinion was expressed.29\n\nEvidence Bill 2025\nWitness assistance measures Part 7\nAdmission of recorded interviews Division 5\ns. 256\npage 203\n(3) The rule that leading questions must not be put to a witness in1\nexamination in chief provided for in section 46 does not prevent2\na court from allowing any part of a recorded interview to be3\nadmitted as the evidence in chief of a person if the court is4\nsatisfied that the manner in which the interview was conducted5\ncomplies with the interview admissibility regulations to the6\nextent required by those regulations.7\nCompare:8\nEvidence Act 1906 s. 106HB(4)9\n256. Presentation of recorded interview10\n(1) A court may give directions as to the manner in which a11\nrecorded interview must be presented to the court and the12\nexcision of matters from it.13\n(2) Without limiting subsection (1), the court may give any of the14\nfollowing directions —15\n(a) a direction that the recorded interview be played to the16\ncourt;17\n(b) a direction that the recorded interview be tendered to the18\ncourt;19\n(c) a direction that a transcript of the recorded interview be20\ntendered to the court.21\n(3) A jury in the proceeding may, with the leave of the court, be22\ngiven access to a transcript of a recorded interview.23\nCompare:24\nEvidence Act 1906 s. 106HB(5)(a)25\n257. Further evidence26\nIf a recorded interview is admitted as all or part of the evidence27\nin chief of a person, the court may give directions as to —28\n(a) the manner in which further evidence in chief of the29\nperson may be given at the proceeding; and30\n\nEvidence Bill 2025\nPart 7 Witness assistance measures\nDivision 5 Admission of recorded interviews\ns. 258\npage 204\n(b) the manner in which any cross-examination or1\nre-examination of the person must be conducted at the2\nproceeding.3\nCompare:4\nEvidence Act 1906 s. 106HB(5)(b)5\n258. Presence of person interviewed not required during6\npresentation of interview7\n(1) A person interviewed in a recorded interview may, but is not8\nrequired to, be present in the courtroom when the recorded9\ninterview is played to the court.10\n(2) The court may direct that arrangements be made that enable the11\nperson to view the proceeding from outside the courtroom when12\nthe recorded interview is played, by closed-circuit television or13\notherwise.14\n(3) The arrangements that enable the person to view the proceeding15\nfrom outside the courtroom must ensure that the person is not16\nvisible or audible to anyone in the court, other than the judge.17\n(4) Subsection (1) does not prevent the court from directing the18\nperson to leave the courtroom while the recorded interview is19\nplayed if the court considers it appropriate to do so in the20\ninterests of justice.21\nCompare:22\nEvidence Act 1906 s. 106HB(6a)23\n259. Warning and comments to jury24\n(1) A judge in any proceeding before a jury in which a recorded25\ninterview is admitted under this Division as the whole or part of26\nthe evidence in chief of a person must instruct the jury that —27\n(a) the procedure is a routine practice of the court; and28\n(b) the jury should not draw an inference as to the guilt of29\nthe accused from the use of the procedure.30\n\nEvidence Bill 2025\nWitness assistance measures Part 7\nAdmission of recorded interviews Division 5\ns. 260\npage 205\n(2) In a proceeding before a jury, the judge, the accused or the1\naccused’s legal counsel must not comment to the jury about a2\nfailure by the prosecutor to adduce a recorded interview with a3\nperson as the evidence in chief of the person under this4\nDivision.5\n(3) Subsection (2) does not prevent a judge from directing the jury6\nabout a contravention of that subsection by the accused or the7\naccused’s legal counsel if it is in the interests of justice to do so.8\nCompare:9\nEvidence Act 1906 s. 106HB(7)10\n260. Other regulations11\nThe regulations may make further provision for recorded12\ninterviews that are admissible under this Division or made for13\nuse as evidence under this Division, including, without14\nlimitation, for or with respect to the following —15\n(a) the alteration, playing, custody, possession, storage,16\ncopying, transcription or destruction of recorded17\ninterviews;18\n(b) the records that are to be kept about a recorded19\ninterview;20\n(c) access to a recorded interview by the prosecutor for the21\npurposes of any proceeding in which the recorded22\ninterview may be admitted as evidence in chief of a23\nperson;24\n(d) access to and use of a recorded interview for the25\npurposes of any proceeding in the Children’s Court or26\nthe Family Court (whether or not it has been admitted in27\nevidence under this Division);28\n(e) access to and use of a recorded interview otherwise than29\nfor the purposes of a proceeding in which the interview30\nmay be admitted under this Division or as referred to in31\nparagraph (d);32\n\nEvidence Bill 2025\nPart 7 Witness assistance measures\nDivision 6 Pre-recording procedure\ns. 261\npage 206\n(f) the manner in which compliance with any of the1\nrequirements for admissibility under this Division may2\nbe proved in a proceeding.3\nCompare:4\nEvidence Act 1906 s. 106HC5\nDivision 6 — Pre-recording procedure6\n261. Terms used7\nIn this Division —8\npre-recording order has the meaning given in section 262(1);9\nspecial hearing means a special hearing held for the purposes of10\na pre-recording procedure.11\n262. General provisions about pre-recording orders12\n(1) A pre-recording order is an order of a court under section 26313\ndirecting that the whole or any part of the evidence of a witness14\nin a proceeding be given using a pre-recording procedure.15\n(2) A pre-recording order may be made by a court —16\n(a) on the application of the party proposing to call the17\nwitness; or18\n(b) on the court’s own initiative.19\n(3) A pre-recording order may include any directions the court20\nmaking the order thinks fit relating to the pre-recording21\nprocedure, including, but not limited to, the following —22\n(a) the conduct of the special hearing at which the evidence23\nof the witness is to be given;24\n(b) arrangements for examination of the witness, including25\nthe presentation and incorporation of any recorded26\nstatement or recorded interview of the witness at the27\nspecial hearing;28\n(c) arrangements for cross-examination or re-examination29\nof the witness;30\n\nEvidence Bill 2025\nWitness assistance measures Part 7\nPre-recording procedure Division 6\ns. 263\npage 207\n(d) the place at which the special hearing is to be held1\n(whether in the courtroom or a separate room);2\n(e) the persons who may be present in the same room as the3\nwitness when the witness’s evidence is given;4\n(f) arrangements for an accused or a party to observe or5\nlisten to the special hearing.6\n(4) A pre-recording order must not be inconsistent with the7\nrequirements for a pre-recording procedure specified in this8\nDivision.9\n(5) A pre-recording order may be varied or revoked by further order10\nof the court made —11\n(a) on the application of a party; or12\n(b) on the court’s own initiative.13\n(6) A party to a proceeding must be served with a copy of an14\napplication by another party for —15\n(a) a pre-recording order; or16\n(b) the variation or revocation of a pre-recording order.17\nCompare:18\nEvidence Act 1906 s. 106I, 106K and 106RA19\n263. Circumstances in which pre-recording order may be made20\n(1) A court may make a pre-recording order directing that the21\nwhole or any part of the evidence of a witness be given using a22\npre-recording procedure —23\n(a) if the witness is a child when the proceeding24\ncommences; or25\n(b) if the witness —26\n(i) is the complainant in a criminal proceeding for a27\nsexual offence; and28\n\nEvidence Bill 2025\nPart 7 Witness assistance measures\nDivision 6 Pre-recording procedure\ns. 263\npage 208\n(ii) was a child at the time of the offence (regardless1\nof the witness’s age at the time of the2\nproceeding);3\nor4\n(c) if the witness is a special witness in a criminal5\nproceeding; or6\n(d) if the court is satisfied that the witness is likely to be out7\nof the State at the time of the proceeding and will not be8\nable to give evidence at the proceeding by means of a9\nvideo link or an audio link; or10\n(e) in any circumstances specified in the regulations for the11\npurposes of this paragraph; or12\n(f) in any other circumstances that, in the opinion of the13\ncourt, justify the use of a pre-recording procedure.14\n(2) A court must have regard to the interests of justice in deciding15\nwhether to make a pre-recording order in respect of a witness16\nunder this section, including —17\n(a) the needs of the witness; and18\n(b) the length of time until a trial is likely to be held.19\n(3) A power to specify circumstances under subsection (1)(e)20\nincludes a power to specify circumstances by reference to any21\nof the following —22\n(a) the characteristics of the witness;23\n(b) the type of proceeding;24\n(c) the location of the proceeding.25\n(4) In deciding whether the court is satisfied of the circumstances26\nreferred to in subsection (1)(e) or (f), the court may inform itself27\nas it thinks fit.28\nCompare:29\nEvidence Act 1906 s. 106I and 106RA30\n\nEvidence Bill 2025\nWitness assistance measures Part 7\nPre-recording procedure Division 6\ns. 264\npage 209\n264. Conduct of special hearing1\n(1) A witness may give evidence at a special hearing in accordance2\nwith a pre-recording order, subject to the control of the3\npresiding judge.4\n(2) The usual rules of evidence apply to the special hearing, except5\nas otherwise provided by this Division.6\n(3) More than 1 special hearing may be held for the purposes of7\nobtaining the evidence of the witness and, in that case, this8\nDivision applies in relation to each special hearing with any9\nnecessary modifications.10\nCompare:11\nEvidence Act 1906 s. 106K(3) and (5)12\n265. Restrictions on persons who may be present at special13\nhearing14\n(1) A person (including an accused) must not be in the same room15\nas a witness when the witness’s evidence is given at a special16\nhearing unless the person is the presiding judge or a person17\nauthorised by a pre-recording order.18\n(2) In a criminal proceeding or child protection proceeding, an19\naccused must not be in, and cannot be authorised by a20\npre-recording order to be in, the same room as a witness when21\nthe witness’s evidence is given at a special hearing —22\n(a) if the witness is a child when the proceeding23\ncommences; or24\n(b) if the witness —25\n(i) is the complainant in a criminal proceeding for a26\nsexual offence; and27\n(ii) was a child at the time of the offence (regardless28\nof the witness’s age at the time of the29\nproceeding);30\nor31\n\nEvidence Bill 2025\nPart 7 Witness assistance measures\nDivision 6 Pre-recording procedure\ns. 266\npage 210\n(c) if the witness is a special witness; or1\n(d) in any other circumstances specified in the regulations2\nfor the purposes of this paragraph.3\n(3) However, the accused must —4\n(a) be able to observe the special hearing by means of a5\nvideo link or, if section 266 applies, to listen to the6\nspecial hearing by means of an audio link; and7\n(b) at all times have the means of communicating with the8\naccused’s legal counsel or, if the accused is not9\nrepresented, with the court.10\n(4) This section applies despite the Criminal Procedure Act 200411\nsection 88.12\n(5) If an accused gives evidence at a special hearing under a13\npre-recording order, a reference in subsections (1) to (3) to the14\naccused is a reference to any other accused in the proceeding.15\nCompare:16\nEvidence Act 1906 s. 106K(3)17\n266. Alternative arrangements for attendance at special hearing18\n(1) A court may direct that an accused or party listen to a special19\nhearing by means of an audio link if, in the opinion of the court,20\nit is not desirable for the accused or party to attend court due to21\nthe person’s health or another reason.22\n(2) If the court directs that the accused or party listen to a special23\nhearing by means of an audio link, the accused or party must be24\nprovided with a reasonable opportunity to view a copy of the25\nvisual recording of evidence from the special hearing before the26\nevidence is presented to court.27\n(3) A person must not make a copy of, or otherwise reproduce, any28\naudio of a special hearing, or any part of a special hearing,29\nheard by means of an audio link under subsection (1).30","sortOrder":19},{"sectionNumber":"retrieval-0021","sectionType":"document_chunk","heading":"Document excerpt 21","content":"Evidence Bill 2025\nWitness assistance measures Part 7\nPre-recording procedure Division 6\ns. 267\npage 211\nPenalty for this subsection: imprisonment for 2 years or a fine of1\n$24 000.2\n(4) A person must not play, supply or offer to supply any copy of,3\nor reproduction of, any audio of a special hearing, or any part of4\na special hearing, heard by means of an audio link under5\nsubsection (1).6\nPenalty for this subsection: imprisonment for 2 years or a fine of7\n$24 000.8\n(5) A person must not publish any audio of a special hearing, or any9\npart of a special hearing, heard by means of an audio link under10\nsubsection (1).11\nPenalty for this subsection: imprisonment for 2 years or a fine of12\n$100 000.13\nCompare:14\nEvidence Act 1906 s. 106K(3A), (3B), (4A), (4B) and (4C)15\n267. Use of recorded statement or interview at special hearing16\nThis Division does not prevent a recorded statement or recorded17\ninterview from being presented as the whole or part of a18\nwitness’s evidence in chief in a special hearing.19\nCompare:20\nEvidence Act 1906 s. 106K(4)21\n268. Admissibility of recording of evidence taken at special22\nhearing23\n(1) A recording of evidence given by a witness at a special hearing24\nis admissible in the proceeding for which it was made, and in25\nany related proceeding, to the same extent as if it were given26\norally in the proceeding in accordance with the usual rules and27\npractice of the court concerned.28\n(2) If a pre-recording order is made on the ground that the witness29\nis likely to be out of the State at the time of the proceeding,30\n\nEvidence Bill 2025\nPart 7 Witness assistance measures\nDivision 6 Pre-recording procedure\ns. 269\npage 212\nsubsection (1) applies only if the court is satisfied at the1\nproceeding that —2\n(a) the witness is not available to give evidence; or3\n(b) the witness is out of the State and is not able to give4\nevidence at the proceeding by means of a video link or5\nan audio link, even if the witness might return at some6\nfuture time; or7\n(c) the witness is being kept out of the way by a party; or8\n(d) all of the parties consent and the interests of justice do9\nnot require the presence of the witness.10\n(3) However, if there is a prospect that a witness referred to in11\nsubsection (2)(a) might become available to give evidence, the12\ncourt need not admit the evidence but may adjourn the hearing13\nof the proceeding.14\nCompare:15\nEvidence Act 1906 s. 106T16\n269. Presentation of recording of evidence17\n(1) The court may give directions as to the manner in which a18\nrecording of evidence given by a witness at a special hearing19\nmust be presented to the court and the excision of matters from20\nit.21\n(2) Without limiting subsection (1), the court may give any of the22\nfollowing directions —23\n(a) a direction that the recording of evidence be played to24\nthe court;25\n(b) a direction that the recording of evidence be tendered to26\nthe court;27\n(c) a direction that a transcript of the recording of evidence28\nbe tendered to the court.29\n(3) A jury in the proceeding may, with the leave of the court, be30\ngiven access to a transcript of a recording of evidence.31\n\nEvidence Bill 2025\nWitness assistance measures Part 7\nPre-recording procedure Division 6\ns. 270\npage 213\n270. Presence of witness not required during presentation of1\nrecording of evidence2\n(1) A witness may, but is not required to, be present in the3\ncourtroom when a recording of evidence given by the witness is4\nplayed to the court.5\n(2) Subsection (1) does not prevent the court from directing the6\nwitness to leave the courtroom while the recording of evidence7\nis played if the court considers it appropriate to do so in the8\ninterests of justice.9\n(3) The court may direct that arrangements be made that enable the10\nwitness to view the proceeding from outside the courtroom11\nwhen the recording of evidence is played, by closed-circuit12\ntelevision or otherwise.13\n(4) The arrangements that enable the witness to view the14\nproceeding from outside the courtroom must ensure that the15\nwitness is not visible or audible to anyone in the court, other16\nthan the judge.17\n(5) This section does not prevent the court from directing that a18\nwitness be visible or audible to the courtroom while a recording19\nof evidence is played if the witness has reached 18 years of age20\nand the court considers it appropriate to do so in the interests of21\njustice.22\nCompare:23\nEvidence Act 1906 s. 106I(1)(b) and 106T(2c)24\n271. Witness may be required to give further evidence25\n(1) A witness who has given evidence in a special hearing may be26\ncalled to give further evidence in the proceeding, but only with27\nthe leave of the court.28\n\nEvidence Bill 2025\nPart 7 Witness assistance measures\nDivision 6 Pre-recording procedure\ns. 272\npage 214\n(2) The court may give leave only if satisfied that —1\n(a) the further evidence is required —2\n(i) to clarify evidence given in the special hearing;3\nor4\n(ii) because of a matter which the party seeking5\nleave could not reasonably have been aware at6\nthe time of the special hearing;7\nand8\n(b) it is in the interests of justice to do so.9\n(3) The further evidence must be limited to the matters in relation to10\nwhich the leave is granted.11\n(4) The further evidence may be given in the absence of the jury (if12\nany) if the court considers it appropriate in the interests of13\njustice.14\n(5) Subsection (1) does not prevent the court from directing the use15\nof a pre-recording procedure, video link separation procedure or16\nscreening procedure in respect of the giving of further evidence.17\nCompare:18\nEvidence Act 1906 s. 106T(3) and (4)19\n272. Identification of accused20\nIf the evidence of a witness in a criminal proceeding is given in21\na special hearing, and the identification of an accused is in issue,22\nthe witness cannot be required to be in the presence of the23\naccused for that purpose —24\n(a) for any longer than is necessary for that purpose; or25\n(b) before the evidence of the witness (including26\ncross-examination and re-examination) is completed.27\nCompare:28\nEvidence Act 1906 s. 106Q29\n\nEvidence Bill 2025\nWitness assistance measures Part 7\nVideo link separation and screening procedures Division 7\ns. 273\npage 215\n273. Warning to jury1\nA judge in any proceeding before a jury in which the evidence2\nof a witness is given using a pre-recording procedure must3\ninstruct the jury that —4\n(a) the procedure is a routine practice of the court; and5\n(b) the jury should not draw an inference as to the guilt of6\nan accused or the culpability of a party from the use of7\nthe procedure.8\nDivision 7 — Video link separation and screening procedures9\n274. Application of Division10\n(1) This Division applies despite the Criminal Procedure Act 200411\nsection 88.12\n(2) This Division does not affect the power of a court to order the13\nuse of video link or a screening procedure under any other14\nprovision of this Act or any other written law.15\n275. Terms used16\nIn this Division —17\nexcluded party has the meaning given in section 276(1)(b);18\nvideo link separation order has the meaning given in19\nsection 276(1).20\n276. General provisions about video link separation orders21\n(1) A video link separation order is an order of a court under22\nsection 277 or 278 directing that the whole or any part of the23\nevidence of a witness in a proceeding be given using a video24\nlink separation procedure so that —25\n(a) in a criminal proceeding — the witness gives the26\nevidence in a separate place from an accused; or27\n\nEvidence Bill 2025\nPart 7 Witness assistance measures\nDivision 7 Video link separation and screening procedures\ns. 276\npage 216\n(b) in a civil proceeding — the witness gives the evidence1\nin a separate place from any party the court considers2\nappropriate to exclude (an excluded party).3\n(2) A video link separation order may be made by a court —4\n(a) on the application of the party proposing to call the5\nwitness; or6\n(b) on the court’s own initiative.7\n(3) A video link separation order may include any directions the8\ncourt making the order thinks fit relating to the video link9\nseparation procedure, including, but not limited to, directions10\nabout the following —11\n(a) the place at which the evidence of the witness must be12\ngiven, or an accused or an excluded party must remain,13\nwhile the evidence is given;14\n(b) the persons who may be present in the same room as the15\nwitness when the witness’s evidence is given;16\n(c) the persons, or classes of persons, who are authorised to17\nhave possession of the recording of evidence made when18\nthe witness’s evidence is given.19\n(4) A video link separation order must not be inconsistent with the20\nrequirements for a video link separation procedure specified in21\nthis Division.22\n(5) A video link separation order may be varied or revoked by23\nfurther order of the court made —24\n(a) on the application of a party; or25\n(b) on the court’s own initiative.26\n(6) A party to a proceeding must be served with a copy of an27\napplication by another party for —28\n(a) a video link separation order; or29\n(b) an order varying or revoking a video link separation30\norder.31\n\nEvidence Bill 2025\nWitness assistance measures Part 7\nVideo link separation and screening procedures Division 7\ns. 277\npage 217\nCompare:1\nEvidence Act 1906 s. 106N and 106R(4)2\n277. Circumstances in which video link separation procedure is3\nmandatory4\n(1) A court must make a video link separation order directing that5\nthe whole of the evidence of a witness be given using a video6\nlink separation procedure —7\n(a) if the proceeding is a criminal proceeding and the8\nwitness is a child (other than the accused) when the9\nproceeding commences; or10\n(b) if the proceeding is a child protection proceeding and11\nthe witness is the affected child; or12\n(c) if the witness is a special witness in the proceeding13\n(other than the accused); or14\n(d) in any other circumstances specified in the regulations15\nfor the purposes of this paragraph.16\n(2) Despite subsection (1), the court may decline to make a video17\nlink separation order if —18\n(a) the court dispenses with the use of a video link19\nseparation procedure under section 311; or20\n(b) the evidence of the witness is given using a21\npre-recording procedure; or22\n(c) the court is satisfied that the necessary facilities for a23\nvideo link separation procedure are not available and24\ncannot reasonably be made available by the court.25\n(3) If a court declines to make a video link separation order under26\nsubsection (2)(c), the court must —27\n(a) instead of making the order, direct that the evidence of28\nthe witness be given using a screening procedure; and29\n(b) consider whether any other arrangements could be made30\nto support or assist the witness while giving evidence.31\n\nEvidence Bill 2025\nPart 7 Witness assistance measures\nDivision 7 Video link separation and screening procedures\ns. 278\npage 218\n(4) The court must not decline to make a video link separation order1\nunder subsection (2)(c) in the circumstances (if any) specified in2\nthe regulations for the purposes of this subsection.3\n(5) A power to specify circumstances under subsection (1)(d) or (4)4\nincludes a power to specify circumstances by reference to any5\nof the following —6\n(a) the characteristics of the witness;7\n(b) the type of proceeding;8\n(c) the location of the proceeding.9\n(6) In deciding whether the court is satisfied of the circumstances10\nreferred to in subsection (1)(d) or (4), the court may inform11\nitself as it thinks fit.12\n278. Other circumstances in which video link separation13\nprocedure may be used14\n(1) A court may make a video link separation order directing that15\nthe whole or any part of the evidence of a witness be given16\nusing a video link separation procedure —17\n(a) if the witness is an accused in a criminal proceeding in18\nwhich there is more than 1 accused, and is a child when19\nthe proceeding commences; or20\n(b) if the witness is an accused in a criminal proceeding in21\nwhich there is more than 1 accused, and is a special22\nwitness; or23\n(c) in any other circumstances specified in the regulations24\nfor the purposes of this paragraph; or25\n(d) in any other circumstances that, in the opinion of the26\ncourt, justify the use of a video link separation27\nprocedure.28\n(2) A court must have regard to the interests of justice in deciding29\nwhether to make a video link separation order in respect of a30\nwitness under this section.31\n\nEvidence Bill 2025\nWitness assistance measures Part 7\nVideo link separation and screening procedures Division 7\ns. 279\npage 219\n(3) A power to specify circumstances under subsection (1)(c)1\nincludes a power to specify circumstances by reference to any2\nof the following —3\n(a) the characteristics of the witness;4\n(b) the type of proceeding;5\n(c) the location of the proceeding.6\n(4) In deciding whether the court is satisfied of the circumstances7\nreferred to in subsection (1)(c) or (d), the court may inform8\nitself as it thinks fit.9\n(5) This section does not apply if a court is required to make a10\nvideo link separation order under section 277.11\n279. Access to legal counsel12\nAn accused or an excluded party must at all times have the13\nmeans of communicating with the person’s legal counsel while14\na witness gives evidence using a video link separation15\nprocedure.16\nCompare:17\nEvidence Act 1906 s. 106N(3)18\n280. Evidence of witness to be recorded19\n(1) If a witness gives evidence using a video link separation20\nprocedure, the evidence must be recorded on a visual recording.21\n(2) A recording of evidence given by a witness using a video link22\nseparation procedure is admissible in the proceeding for which23\nthe evidence was obtained, and in any related proceeding, to the24\nsame extent as if it were given orally in the proceeding in25\naccordance with the usual rules and practice of the court26\nconcerned.27\nCompare:28\nEvidence Act 1906 s. 106N(3a) and 106T(1) and (2)29\n\nEvidence Bill 2025\nPart 7 Witness assistance measures\nDivision 7 Video link separation and screening procedures\ns. 281\npage 220\n281. Use of screening procedure1\n(1) If, instead of making a video link separation order, a court2\ndirects that the evidence of the witness be given using a3\nscreening procedure, the court must ensure that —4\n(a) the screening procedure does not cause significant5\nhardship to the witness; and6\n(b) the witness is still able to access any person who has7\nbeen approved by the court to provide support to the8\nwitness while giving evidence; and9\n(c) the arrangements for the witness to give evidence are10\notherwise in the interests of justice.11\n(2) The witness’s evidence must be recorded on a visual recording12\nif the necessary facilities are available to do so.13\n(3) A recording of evidence given by a witness while using a14\nscreening procedure is admissible in the proceeding for which15\nthe evidence was obtained, and in any related proceeding, to the16\nsame extent as if it were given orally in the proceeding in17\naccordance with the usual rules and practice of the court18\nconcerned.19\nCompare:20\nEvidence Act 1906 s. 106N(4) and (5) and 106T(1) and (2)21\n282. Identification of accused22\nIf the evidence of a witness in a criminal proceeding is given23\nusing a video link separation procedure or a screening procedure24\nunder this Division, and the identification of an accused is in25\nissue, the witness cannot be required to be in the presence of the26\naccused for that purpose —27\n(a) for any longer than is necessary for that purpose; or28\n\nEvidence Bill 2025\nWitness assistance measures Part 7\nVideo link separation and screening procedures Division 8\ns. 283\npage 221\n(b) before the evidence of the witness (including1\ncross-examination and re-examination) is completed.2\nCompare:3\nEvidence Act 1906 s. 106Q4\n283. Instruction to jury5\nA judge in any proceeding before a jury in which the evidence6\nof a witness is given using a video link separation procedure or7\na screening procedure under this Division must instruct the jury8\nthat —9\n(a) the procedure is a routine practice of the court; and10\n(b) the jury should not draw an inference as to the guilt of11\nan accused or the culpability of a party from the use of12\nthe procedure.13\nCompare:14\nEvidence Act 1906 s. 106P15\nDivision 8 — Witness intermediaries16\n284. Terms used17\nIn this Division —18\naccredited witness intermediary means a person who is19\naccredited, in accordance with the regulations, to act as a20\nwitness intermediary;21\nwitness intermediary service means the witness intermediary22\nservice referred to in section 285.23\n285. Establishment of witness intermediary service24\n(1) There is to be a witness intermediary service.25\n(2) The witness intermediary service is comprised of persons who26\nare accredited, in accordance with the regulations, to act as27\nwitness intermediaries.28","sortOrder":20},{"sectionNumber":"retrieval-0022","sectionType":"document_chunk","heading":"Document excerpt 22","content":"Evidence Bill 2025\nPart 7 Witness assistance measures\nDivision 8 Video link separation and screening procedures\ns. 286\npage 222\n(3) The regulations may make provision for the establishment of the1\nwitness intermediary service, including for or with respect to the2\nfollowing —3\n(a) accreditation as a witness intermediary, including any4\nqualifications, training or experience required and any5\ncircumstances that disqualify a person from acting as a6\nwitness intermediary (either generally or in a particular7\ncase);8\n(b) ongoing training and assessment of witness9\nintermediaries.10\n286. Proceedings for which witness intermediary service is11\navailable12\n(1) The witness intermediary service is available for the following13\nproceedings —14\n(a) a criminal proceeding;15\n(b) a child protection proceeding;16\n(c) any other civil proceeding in the circumstances (if any)17\nprovided for by the regulations.18\n(2) The regulations may provide that the witness intermediary19\nservice is available only for a proceeding in a specified area or20\nareas.21\n(3) For the purposes of subsection (2), an area may be specified by22\nreference to —23\n(a) the area in which an offence occurred or is alleged to24\nhave occurred; or25\n(b) the area in which a court hears or is to hear a26\nproceeding; or27\n(c) any other matter.28\n287. General functions of witness intermediary29\n(1) The principal function of a witness intermediary is to facilitate30\ncommunication to and by a witness for the purpose of ensuring31\n\nEvidence Bill 2025\nWitness assistance measures Part 7\nVideo link separation and screening procedures Division 8\ns. 288\npage 223\nthat any evidence given by the witness is as complete, accurate1\nand coherent as possible.2\n(2) A witness intermediary is an officer of the court.3\n(3) As an officer of the court, a witness intermediary has an4\noverriding duty to the court to act honestly and impartially in5\nthe exercise of their functions.6\n(4) The regulations may make further provision for the functions of7\na witness intermediary.8\n288. Specific functions in proceedings9\n(1) If there is a witness intermediary for a witness in a proceeding,10\nany evidence given by the witness in the proceeding must be11\ngiven in the presence of the witness intermediary.12\n(2) A failure to comply with subsection (1) does not affect the13\nadmissibility of any evidence.14\n(3) The witness intermediary may —15\n(a) make recommendations to the court about how best to16\ncommunicate with the witness; and17\n(b) intervene in the questioning of the witness where a18\ncommunication difficulty is identified; and19\n(c) if requested by the judge, communicate and explain —20\n(i) to the witness, questions put to the witness; and21\n(ii) to the court, evidence given by the witness.22\n(4) The witness intermediary must comply with any directions of23\nthe court in exercising the witness intermediary’s functions.24\n(5) A witness intermediary who exercises functions in a courtroom25\nor in connection with a special procedure for giving evidence26\nmust either take an oath, or make an affirmation, in a form27\ndirected by the court, that they will exercise their functions as a28\nwitness intermediary to the best of their ability.29\n\nEvidence Bill 2025\nPart 7 Witness assistance measures\nDivision 8 Video link separation and screening procedures\ns. 289\npage 224\n(6) The appointment of a witness intermediary for a witness does1\nnot prevent the witness —2\n(a) having a support person under section 231 while giving3\nevidence; or4\n(b) using a communicator under section 233 to give5\nevidence.6\n289. Assessment of whether witness requires witness7\nintermediary8\n(1) In any proceeding for which the witness intermediary service is9\navailable, the court may request an assessment (a witness10\nassessment) of whether a witness requires the assistance of a11\nwitness intermediary to give evidence in the proceeding.12\n(2) A witness assessment must be carried out by an accredited13\nwitness intermediary.14\n(3) A court may request a witness assessment —15\n(a) on the application of a party; or16\n(b) on the court’s own initiative.17\n(4) The regulations may make further provision for witness18\nassessments.19\n290. Witnesses who are eligible for witness assessment20\n(1) A court must request a witness assessment in relation to a21\nwitness —22\n(a) if the proceeding is a criminal proceeding and the23\nwitness is a child (other than the accused) under24\n10 years of age when the proceeding commences; or25\n(b) if the proceeding is a criminal proceeding for a sexual26\noffence and the witness is a child who is the27\ncomplainant.28\n(2) Subsection (1)(b) does not apply if the court is satisfied that a29\nwitness assessment is not necessary.30\n\nEvidence Bill 2025\nWitness assistance measures Part 7\nVideo link separation and screening procedures Division 8\ns. 291\npage 225\n(3) The court must state its reasons for not requiring a witness1\nassessment in a case referred to in subsection (1)(b).2\n(4) A court may request a witness assessment in relation to a3\nwitness not referred to in subsection (1), other than an4\naccused —5\n(a) if the proceeding is a child protection proceeding and6\nthe witness is the affected child; or7\n(b) if the witness is a special witness; or8\n(c) if the witness appears to have specific communication9\nneeds and to require the assistance of a witness10\nintermediary to give evidence that is as complete,11\naccurate and coherent as possible; or12\n(d) if the court otherwise considers it appropriate.13\n(5) The regulations may specify other circumstances in which the14\ncourt may request a witness assessment in relation to a witness.15\n(6) The court, when deciding whether to request a witness16\nassessment (other than as required by subsection (1)(a)) —17\n(a) must have regard to the submissions of the parties and to18\nthe views of the witness; and19\n(b) may inform itself as it thinks fit.20\n291. Appointment of witness intermediary in proceeding21\n(1) A court must appoint an accredited witness intermediary as a22\nwitness intermediary for a witness in a proceeding if —23\n(a) the witness intermediary service is available for the24\nproceeding; and25\n(b) a witness assessment requested by the court indicates26\nthat the witness requires the assistance of a witness27\nintermediary to give evidence in the proceeding; and28\n(c) the court is satisfied, having regard to the witness29\nassessment, that the witness requires the assistance of a30\nwitness intermediary to give evidence in the proceeding.31\n\nEvidence Bill 2025\nPart 7 Witness assistance measures\nDivision 8 Video link separation and screening procedures\ns. 292\npage 226\n(2) Subsection (1) does not apply if the court is satisfied that —1\n(a) there is no witness intermediary available to meet the2\nneeds of the witness; or3\n(b) it is otherwise impractical to appoint, or utilise the4\nservices of, a witness intermediary.5\n(3) If a witness assessment indicates that a witness who is a child6\nwhen the assessment is made requires the assistance of a7\nwitness intermediary to give evidence in the proceeding, the fact8\nthat the witness reaches 18 years of age during the proceeding9\ndoes not affect that assessment.10\n(4) The regulations may make further provision for the appointment11\nof a witness intermediary in a proceeding, including the12\nduration of the appointment.13\n292. Witness who declines witness assessment or services of14\nwitness intermediary15\n(1) Despite any other provision of this Division, a court may decide16\nnot to request a witness assessment or to dispense with the17\nservices of a witness intermediary if satisfied that the witness18\nhas decided to decline the witness assessment or the services of19\na witness intermediary.20\n(2) The court must be satisfied that —21\n(a) the witness understands their decision and its effect; and22\n(b) the witness’s decision was made freely and voluntarily.23\n(3) A witness must not be questioned in a proceeding about a24\ndecision to decline a witness assessment or to give evidence25\nwithout the assistance of a witness intermediary except by or26\nwith the approval of the court for the purposes of satisfying this27\nsection.28\n(4) In a criminal proceeding before a jury, the judge, the prosecutor,29\nthe accused or the accused’s legal counsel must not comment to30\nthe jury about a decision by a witness to decline a witness31\n\nEvidence Bill 2025\nWitness assistance measures Part 7\nCommunication directions Division 9\ns. 293\npage 227\nassessment or to give evidence without the assistance of a1\nwitness intermediary.2\n(5) Subsection (4) does not prevent a judge from directing the jury3\nabout a contravention of that subsection by the prosecutor, the4\naccused or the accused’s legal counsel if it is in the interests of5\njustice to do so.6\nDivision 9 — Communication directions7\n293. Term used: communication directions8\nIn this Division —9\ncommunication directions has the meaning given in10\nsection 294(1).11\n294. Communication directions relating to witnesses12\n(1) A court may give directions (communication directions) in13\nrelation to a witness for the purpose of ensuring that the14\ncommunication, support or other needs of the witness in a15\nproceeding are met in a manner that is fair and effective.16\n(2) Without limiting subsection (1), the court may give17\ncommunication directions relating to any of the following18\nmatters —19\n(a) the manner in which a witness must be questioned;20\n(b) the duration of questioning and breaks in questioning;21\n(c) the questions that may, or must not be, put to a witness22\n(including by giving directions about disallowable23\nquestions under section 50);24\n(d) if there are more than 2 parties — the allocation among25\nthem of topics about which a witness may be26\nquestioned;27\n(e) the use of models, plans, maps or similar aids to28\nquestion a witness;29\n(f) the cross-examination of a witness;30\n\nEvidence Bill 2025\nPart 7 Witness assistance measures\nDivision 9 Communication directions\ns. 295\npage 228\n(g) if a party intends to lead evidence that contradicts or1\nchallenges the evidence of a witness or that otherwise2\ndiscredits a witness — that the party is not obliged to3\nput that evidence in its entirety to the witness in4\ncross-examination.5\n(3) If a court requests a witness assessment for a witness, the court6\nmust have regard to that witness assessment in deciding whether7\nto give any communication directions.8\n295. Ground rules hearing9\n(1) A court may hold a hearing (a ground rules hearing) for the10\npurposes of —11\n(a) considering the communication, support or other needs12\nof a witness; and13\n(b) deciding whether any communication directions should14\nbe made to meet those needs fairly and effectively.15\n(2) A ground rules hearing may be held —16\n(a) on the application of a party; or17\n(b) on the court’s own initiative.18\n(3) An application for a ground rules hearing may be made to the19\ncourt orally or in writing.20\n(4) A court must hold a ground rules hearing in relation to a witness21\nif a witness intermediary has been appointed for the witness,22\nunless subsection (5) applies.23\n(5) A court may give communication directions in relation to a24\nwitness, without holding a ground rules hearing, if —25\n(a) the communication directions have been agreed by the26\nparties and the witness intermediary (if any) for the27\nwitness; and28\n(b) the court is satisfied that those communication29\ndirections are appropriate.30\n\nEvidence Bill 2025\nWitness assistance measures Part 7\nCommunication directions Division 9\ns. 296\npage 229\n296. Timing of ground rules hearing1\n(1) If a ground rules hearing is to be held, it must, if practicable, be2\nheld a reasonable period before the commencement of any3\nhearing at which the witness is to give evidence.4\n(2) The court may extend the time for holding the ground rules5\nhearing if the court considers that it is in the interests of justice6\nto do so.7\n(3) The court may extend the time under subsection (2) —8\n(a) before or after the time expires; and9\n(b) more than once.10\n297. Conduct of ground rules hearing11\n(1) The following persons must attend a ground rules hearing —12\n(a) in a criminal proceeding — a person acting for the13\nprosecution and the legal counsel acting for the accused14\nor, if the accused is unrepresented, the accused;15\n(b) in a civil proceeding — the legal counsels of the parties16\nor, if a party is unrepresented, the party (other than the17\naffected child in a child protection proceeding);18\n(c) any witness intermediary for the witness in the19\nproceeding.20\n(2) A witness is not required to attend a ground rules hearing.21\n(3) The court may order that a ground rules hearing be held in the22\nabsence of a witness if a witness intermediary has been23\nappointed for the witness.24\n(4) Rules of court may provide for ground rules hearings.25\n298. Other powers of court not affected26\nThis Division does not affect any other power of a court to give27\ndirections about the questioning of a witness.28\n\nEvidence Bill 2025\nPart 7 Witness assistance measures\nDivision 10 Access to and use of protected recordings\ns. 299\npage 230\nDivision 10 — Access to and use of protected recordings1\n299. Terms used2\nIn this Division —3\nDirector of Public Prosecutions means —4\n(a) the Director of Public Prosecutions appointed under the5\nDirector of Public Prosecutions Act 1991 section 5; or6\n(b) a person acting in that office under section 8 of that Act;7\nprotected recording means —8\n(a) a visual recording or audio recording of an out-of-court9\nrepresentation made to a police officer of this State,10\nbeing a representation that may be admitted into11\nevidence under Division 3 (whether or not it has been12\nadmitted under that Division); or13\n(b) a recorded statement that is admissible as evidence14\nunder Division 4 or created for use as evidence under15\nDivision 4 (whether or not it has been admitted under16\nthat Division); or17\n(c) a recorded interview that is admissible as evidence18\nunder Division 5 or made for use as evidence under19\nDivision 5 (whether or not it has been admitted under20\nthat Division); or21\n(d) a visual recording or audio recording of evidence given22\nunder a special procedure for giving evidence.23\n300. Possessing or supplying protected recordings24\n(1) A person must not, without authority —25\n(a) be in possession of any protected recording; or26\n(b) supply or offer to supply any protected recording to any27\nperson.28\nPenalty for this subsection: imprisonment for 2 years or a fine of29\n$24 000.30\n\nEvidence Bill 2025\nWitness assistance measures Part 7\nAccess to and use of protected recordings Division 10\ns. 300\npage 231\n(2) A person has authority for the purposes of subsection (1) only if1\nthe person is —2\n(a) a police officer acting in the course of the police3\nofficer’s official duties; or4\n(b) the Director of Public Prosecutions or a person acting5\nunder the authority of the Director of Public6\nProsecutions; or7\n(c) legal counsel acting for or representing the State; or8\n(d) legal counsel for a party to a proceeding to which the9\nprotected recording relates, or a person engaged by legal10\ncounsel for a party to the proceeding to which the11\nprotected recording relates, acting for a purpose12\nconnected with the conduct or defence of the13\nproceeding; or14\n(e) a public official acting in good faith for a purpose15\nconnected with the person’s duties as a public official;16\nor17\n(f) acting as authorised by a court; or18\n(g) acting as authorised by this Act or regulations made for19\nthe purposes of this paragraph; or20\n(h) acting as authorised by the Criminal Investigation21\nAct 2006.22\n(3) A person is not entitled to be in possession of any protected23\nrecording relating to an offence of which the person is accused24\nand, accordingly, has no authority to possess, supply, or offer to25\nsupply, that protected recording.26\n(4) Subsection (3) continues to apply after any prosecution of the27\noffence has been completed or terminated.28\n(5) This section does not prevent an accused from being in29\npossession of a protected recording that is a recording of30\nevidence given by that accused.31\n\nEvidence Bill 2025\nPart 7 Witness assistance measures\nDivision 10 Access to and use of protected recordings\ns. 301\npage 232\nCompare:1\nEvidence Act 1906 s. 106MA2\n301. Altering or destroying original protected recording3\n(1) A person must not, without authority, alter or destroy or permit4\nanother person to alter or destroy an original version of a5\nprotected recording.6\nPenalty for this subsection: imprisonment for 2 years or a fine of7\n$24 000.8\n(2) A person has authority for the purposes of subsection (1) only if9\nthe person is —10\n(a) a public official acting in good faith for a purpose11\nconnected with the person’s duties as a public official;12\nor13\n(b) acting as authorised by a court; or14\n(c) acting as authorised by this Act or regulations made for15\nthe purposes of this paragraph; or16\n(d) acting as authorised by the Criminal Investigation17\nAct 2006.18\nCompare:19\nEvidence Act 1906 s. 106MA20\n302. Altering copy of protected recording21\nA person must not alter a copy of any protected recording unless22\nthe person has authority to be in possession of the protected23\nrecording.24\nPenalty: imprisonment for 2 years or a fine of $24 000.25\n303. Copying protected recording26\n(1) A person must not, without authority, copy or permit another27\nperson to copy any protected recording.28\nPenalty for this subsection: imprisonment for 2 years or a fine of29\n$24 000.30","sortOrder":21},{"sectionNumber":"retrieval-0023","sectionType":"document_chunk","heading":"Document excerpt 23","content":"Evidence Bill 2025\nWitness assistance measures Part 7\nAccess to and use of protected recordings Division 10\ns. 304\npage 233\n(2) A person has authority for the purposes of subsection (1) only if1\nthe person is —2\n(a) a police officer acting in the course of the police3\nofficer’s official duties; or4\n(b) the Director of Public Prosecutions or a person acting5\nunder the authority of the Director of Public6\nProsecutions; or7\n(c) legal counsel acting for or representing the State; or8\n(d) a public official acting in good faith for a purpose9\nconnected with the person’s duties as a public official;10\nor11\n(e) acting as authorised by a court; or12\n(f) acting as authorised by this Act or regulations made for13\nthe purposes of this paragraph; or14\n(g) acting as authorised by the Criminal Investigation15\nAct 2006.16\nCompare:17\nEvidence Act 1906 s. 106MA18\n304. Playing protected recordings19\n(1) A person must not, without authority, play any protected20\nrecording.21\nPenalty for this subsection: imprisonment for 2 years or a fine of22\n$24 000.23\n(2) A person has authority for the purposes of subsection (1) only if24\nthe person —25\n(a) plays the protected recording for a purpose connected26\nwith the conduct or defence of a proceeding to which the27\nprotected recording relates; or28\n(b) is a police officer acting in the course of the police29\nofficer’s official duties; or30\n\nEvidence Bill 2025\nPart 7 Witness assistance measures\nDivision 10 Access to and use of protected recordings\ns. 305\npage 234\n(c) is a public official acting in good faith for purposes1\nconnected with the person’s duties as a public official;2\nor3\n(d) is acting as authorised by a court; or4\n(e) is acting as authorised by this Act or regulations made5\nfor the purposes of this paragraph.6\n(3) This section does not authorise —7\n(a) an accused to play any protected recording relating to8\nthe proceeding in which the person is accused; or9\n(b) any other person to play, in the presence of the accused,10\nthe protected recording for a purpose connected with the11\nconduct or defence of the proceeding unless the person,12\nor an employee or agent of the person, is present with13\nthe accused for the entire period during which the14\nrecording is played.15\n(4) Subsection (3) does not apply to a protected recording that is a16\nrecording of evidence given by the accused if it is that17\naccused —18\n(a) who plays the recording; or19\n(b) in whose presence the recording is played.20\nCompare:21\nEvidence Act 1906 s. 106MA22\n305. Protected recordings may be played for instructional23\npurposes24\n(1) A protected recording may be played to any of the following25\npersons for the purposes of instruction —26\n(a) a police officer or police trainee;27\n(b) an officer of the Commission (as defined in the28\nCorruption, Crime and Misconduct Act 200329\nsection 3(1));30\n(c) a lawyer or a person studying to be a lawyer;31\n\nEvidence Bill 2025\nWitness assistance measures Part 7\nAccess to and use of protected recordings Division 10\ns. 306\npage 235\n(d) a person prescribed by the regulations for the purposes1\nof this section.2\n(2) A protected recording may be played under subsection (1) only3\nif —4\n(a) all proceedings in relation to the subject matter of the5\nprotected recording have concluded; and6\n(b) all reasonable measures are taken to prevent the7\nidentification of the person being recorded, interviewed8\nor giving evidence in the protected recording; and9\n(c) any further requirements specified in the regulations10\nrelating to the use or playing of the protected recording11\nfor instructional purposes are satisfied.12\n306. Publication of protected recordings prohibited13\n(1) A person must not publish any protected recording except in14\naccordance with the approval of the Supreme Court.15\nPenalty for this subsection: imprisonment for 2 years or a fine of16\n$100 000.17\n(2) The Supreme Court may approve the publication of a protected18\nrecording only if satisfied that exceptional circumstances justify19\napproval being given.20\nCompare:21\nEvidence Act 1906 s. 106MB22\n307. Playing or tendering altered versions of protected23\nrecordings in proceedings24\n(1) A party proposing to play or tender any protected recording in a25\nproceeding must notify the court if the protected recording has26\nbeen altered from the original version of the protected27\nrecording.28\n(2) A party proposing to tender a transcript of a protected recording29\nin a proceeding must notify the court if the transcript has been30\naltered from the original version of the protected recording.31\n\nEvidence Bill 2025\nPart 7 Witness assistance measures\nDivision 11 Miscellaneous\ns. 308\npage 236\n(3) A protected recording, or a transcript of a protected recording,1\nthat has been altered from the original version of the protected2\nrecording may be played or tendered to the court only with the3\nleave of the court.4\nCompare:5\nEvidence Act 1906 s. 106HB6\n308. Court may give directions about protected recordings7\n(1) The Supreme Court, the Family Court, the District Court, the8\nMagistrates Court, the Children’s Court or any court that admits9\na protected recording as evidence or directs the use of a special10\nprocedure for giving evidence may give directions as to the11\npossession, supply, copying, editing, destruction or playing of a12\nprotected recording.13\n(2) A court must not authorise a person to be in possession of a14\nprotected recording if the protected recording relates to an15\noffence of which the person is accused.16\n(3) Subsection (2) continues to apply after any prosecution of the17\noffence has been completed or terminated.18\n(4) Subsection (2) does not apply to the possession by an accused of19\na protected recording of evidence given by that accused.20\nDivision 11 — Miscellaneous21\n309. Hearing to consider orders that should be made22\n(1) In any proceeding in which it is likely that the court will be23\nrequired or asked to do any of the following in relation to a24\nwitness, the party who proposes to call the witness concerned25\nmust apply for a directions hearing for the purpose of having the26\nmatter dealt with before the proceeding —27\n(a) decide whether the witness must be treated as a special28\nwitness or should be declared to be a special witness;29\n\nEvidence Bill 2025\nWitness assistance measures Part 7\nMiscellaneous Division 11\ns. 310\npage 237\n(b) make any order or direction in relation to an out-of-court1\nrepresentation, recorded statement or recorded interview2\nof the witness;3\n(c) make any order or direction, or give any approval, in4\nrelation to a special procedure for giving evidence, as it5\naffects the witness;6\n(d) hold a ground rules hearing in relation to the witness;7\n(e) request a witness assessment in relation to the witness.8\n(2) Rules of court may provide for directions hearings under this9\nsection.10\nCompare:11\nEvidence Act 1906 s. 106S12\n310. Disclosure of protected communications in connection with13\nsupport measures14\n(1) In this section —15\nDepartment means the department of the Public Service16\nprincipally assisting in the administration of this Act;17\nJustice document means a document that records any report,18\nopinion, advice, recommendation or correspondence relating to19\na sexual offence complainant made by an officer or employee20\nof, or person engaged by, the Department in connection with a21\nservice offered to witnesses in criminal proceedings or victims22\nof crime.23\n(2) The prosecutor in a criminal proceeding may, without the leave24\nof the court, tender a Justice document in support of the25\nprosecutor’s submission at any of the following hearings, even26\nif the document records a protected communication —27\n(a) a hearing to determine whether the sexual offence28\ncomplainant should be treated as or declared to be a29\nspecial witness;30\n\nEvidence Bill 2025\nPart 7 Witness assistance measures\nDivision 11 Miscellaneous\ns. 311\npage 238\n(b) a hearing to determine whether the court should make1\nany order or direction in relation to a special procedure2\nfor giving evidence as it affects the sexual offence3\ncomplainant.4\n(3) Section 166 does not prevent the disclosure or admission of a5\nJustice document for the purpose of a hearing mentioned in6\nsubsection (2).7\n(4) If a Justice document that records a protected communication is8\nadmitted for the purpose of a hearing mentioned in9\nsubsection (2), section 174 applies in the same way as it applies10\nto the disclosure of a document under Part 4 Division 3.11\nExample for this subsection:12\nThe court may make an order suppressing the publication of all or part13\nof the Justice document to protect the safety and welfare of the sexual14\noffence complainant.15\n(5) This section does not affect the application of Part 4 Division 316\nto the disclosure or admission of a Justice document for the17\npurpose of any other part of the criminal proceeding.18\n311. Dispensing with special procedure for giving evidence19\n(1) A court may, by order, dispense with the use of a special20\nprocedure for giving evidence if the court is satisfied that the21\nwitness is able to give evidence, and consents to giving22\nevidence, without using the special procedure for giving23\nevidence.24\n(2) The court must not make the order unless the court is satisfied25\nof the following matters —26\n(a) that the witness understands their decision and its effect;27\n(b) that the decision was made freely and voluntarily.28\n(3) In deciding whether to make the order, the court may inform29\nitself as it thinks fit.30\n\nEvidence Bill 2025\nWitness assistance measures Part 7\nMiscellaneous Division 11\ns. 311\npage 239\n(4) A witness must not be questioned in a proceeding about a1\ndecision to give evidence without using a special procedure for2\ngiving evidence except by or with the approval of the court for3\nthe purposes of satisfying this section.4\n(5) In a criminal proceeding before a jury, the judge, the prosecutor,5\nthe accused or the accused’s legal counsel must not comment to6\nthe jury about a decision by a witness to give evidence without7\nusing a special procedure for giving evidence.8\n(6) Subsection (5) does not prevent a judge from directing the jury9\nabout a contravention of that subsection by the prosecutor, the10\naccused or the accused’s legal counsel if it is in the interests of11\njustice to do so.12\nCompare:13\nEvidence Act 1906 s. 106R(8)14\n\nEvidence Bill 2025\nPart 8 Proof\nDivision 1 Standard of proof\ns. 312\npage 240\nPart 8 — Proof1\nDivision 1 — Standard of proof2\n312. Civil proceeding: standard of proof3\n(1) In a civil proceeding, the court must find the case of a party4\nproved if it is satisfied that the case has been proved on the5\nbalance of probabilities.6\n(2) Without limiting the matters that the court may take into7\naccount in deciding whether it is satisfied, it must take into8\naccount —9\n(a) the nature of the cause of action or defence; and10\n(b) the nature of the subject matter of the proceeding; and11\n(c) the gravity of the matters alleged.12\nCompare:13\nEvidence Act 1995 (Commonwealth) s. 14014\n313. Criminal proceeding: standard of proof15\n(1) In a criminal proceeding, the court must not find the case of the16\nprosecution proved unless it is satisfied that it has been proved17\nbeyond reasonable doubt.18\n(2) In a criminal proceeding, the court must find the case of an19\naccused proved if it is satisfied that the case has been proved on20\nthe balance of probabilities.21\nCompare:22\nEvidence Act 1995 (Commonwealth) s. 14123\n314. Admissibility of evidence: standard of proof24\n(1) Except as otherwise provided by this Act, in any proceeding the25\ncourt must find that the facts necessary for deciding any of the26\n\nEvidence Bill 2025\nProof Part 8\nCorroboration Division 2\ns. 315\npage 241\nfollowing questions have been proved if it is satisfied that they1\nhave been proved on the balance of probabilities —2\n(a) a question whether evidence should be admitted or not3\nadmitted, whether in the exercise of a discretion or not;4\n(b) any other question arising under this Act.5\n(2) In determining whether it is satisfied, the matters that the court6\nmust take into account include —7\n(a) the importance of the evidence in the proceeding; and8\n(b) the gravity of the matters alleged in relation to the9\nquestion.10\nCompare:11\nEvidence Act 1995 (Commonwealth) s. 14212\nDivision 2 — Corroboration13\n315. Corroboration not required14\n(1) It is not necessary that evidence on which a party relies be15\ncorroborated.16\n(2) Despite any rule, whether of law or practice, to the contrary, if17\nthere is a jury, the judge must not —18\n(a) warn the jury that it is dangerous to act on19\nuncorroborated evidence or give a warning to the same20\nor similar effect; or21\n(b) direct the jury regarding the absence of corroboration.22\nCompare:23\nEvidence Act 1906 s. 106D24\nEvidence Act 1995 (Commonwealth) s. 16425\n\nEvidence Bill 2025\nPart 8 Proof\nDivision 3 Warnings and information\ns. 316\npage 242\nDivision 3 — Warnings and information1\n316. Term used: delay2\nIn this Division —3\ndelay, in making a complaint, includes —4\n(a) a failure to pursue or to continue to pursue a complaint5\nin a timely manner; and6\n(b) a failure to make a complaint at the first opportunity, or7\non a subsequent opportunity, to complain.8\n317. Unreliable evidence9\n(1) This section applies to evidence of a kind that may be10\nunreliable, including the following kinds of evidence —11\n(a) evidence in relation to which Part 3 Division 2 or 412\napplies;13\n(b) identification evidence;14\n(c) evidence given in a criminal proceeding by a witness,15\nbeing a witness who might reasonably be supposed to16\nhave been criminally concerned in the events giving rise17\nto the proceeding;18\n(d) evidence given in a criminal proceeding by a witness19\nwho is a prison informer;20\n(e) oral evidence of questioning by an investigating official21\nof an accused that is questioning recorded in writing that22\nhas not been signed, or otherwise acknowledged in23\nwriting, by the accused;24\n(f) in a proceeding against the estate of a deceased25\nperson — evidence adduced by or on behalf of a person26\nseeking relief in the proceeding that is evidence about a27\nmatter about which the deceased person could have28\ngiven evidence if the deceased person were alive.29\n\nEvidence Bill 2025\nProof Part 8\nWarnings and information Division 3\ns. 318\npage 243\n(2) In a proceeding before a jury, the judge must do the following if1\na party requests it —2\n(a) warn the jury that the evidence may be unreliable;3\n(b) inform the jury of matters that may cause it to be4\nunreliable;5\n(c) warn the jury of the need for caution in determining6\nwhether to accept the evidence and the weight to be7\ngiven to it.8\n(3) The judge need not comply with subsection (2) if satisfied there9\nis good reason for not complying.10\n(4) It is not necessary that a particular form of words be used in11\ngiving the warning or information.12\n(5) This section does not affect any other power of the judge to give13\na warning to, or to inform, the jury.14\nCompare:15\nEvidence Act 1995 (Commonwealth) s. 16516\n318. Warnings about evidence given by children17\n(1) A judge in any proceeding in which evidence is given by a child18\nbefore a jury must not do any of the following —19\n(a) warn the jury, or suggest to the jury, that children as a20\nclass are unreliable witnesses;21\n(b) warn the jury, or suggest to the jury, that the evidence of22\nchildren as a class is inherently less credible or reliable,23\nor requires more careful scrutiny, than the evidence of24\nadults;25\n(c) give a warning, or make a suggestion, to the jury about26\nthe unreliability of the particular child’s evidence solely27\non account of the age of the child.28\n\nEvidence Bill 2025\nPart 8 Proof\nDivision 3 Warnings and information\ns. 319\npage 244\n(2) Subsection (1) does not prevent a judge from —1\n(a) informing the jury that the evidence of the particular2\nchild may be unreliable and the reasons why it may be3\nunreliable; and4\n(b) warning or informing the jury of the need for caution in5\ndetermining whether to accept the evidence of the6\nparticular child and the weight to be given to it.7\n(3) A judge may exercise the power conferred by subsection (2)8\nonly if —9\n(a) a party requests it; and10\n(b) the party satisfies the court that there are circumstances11\n(other than solely the age of the child) particular to the12\nchild that affect the reliability of the child’s evidence13\nand that warrant the giving of a warning or the14\ninformation.15\n(4) This section does not affect any other power of a judge to give a16\nwarning to, or to inform, the jury.17\nCompare:18\nEvidence Act 1995 (Commonwealth) s. 165A19\n319. Warnings about delays causing forensic disadvantage20\n(1) A rule of law or practice that requires a judge in a criminal21\nproceeding to give a warning of a kind known as a Longman22\nwarning is abolished.23\nNote for this subsection:24\nSee Longman v The Queen (1989) 168 CLR 79.25\n(2) If, on application by an accused in a criminal proceeding before26\na jury, the court is satisfied that the accused has suffered a27\nsignificant forensic disadvantage because of delay, the judge28\nmust —29\n(a) explain to the jury the nature of the forensic30\ndisadvantage; and31","sortOrder":22},{"sectionNumber":"retrieval-0024","sectionType":"document_chunk","heading":"Document excerpt 24","content":"Evidence Bill 2025\nProof Part 8\nWarnings and information Division 3\ns. 320\npage 245\n(b) direct that the jury must take the forensic disadvantage1\ninto account when scrutinising the evidence.2\n(3) The judge need not comply with subsection (2) if satisfied there3\nis good reason for not complying.4\n(4) The mere fact of a delay is not sufficient to establish a5\nsignificant forensic disadvantage.6\n(5) An explanation or direction under subsection (2) —7\n(a) must be specific to the circumstances of the particular8\ncase; and9\n(b) must explain to the jury that the forensic disadvantage10\nsuffered by the accused was not merely due to the delay;11\nand12\n(c) must not take the form of a warning; and13\n(d) must not warn the jury, or suggest to the jury, that14\nbecause of the delay or the forensic disadvantage15\nsuffered by the accused —16\n(i) it is dangerous or unsafe to convict; or17\n(ii) evidence of a complainant should be scrutinised18\nwith great care.19\n(6) This section does not affect any other power of a judge to give a20\nwarning to, or to inform, the jury.21\n320. Prohibited directions about delays in complaint about sexual22\nand family violence offences23\n(1) In any criminal proceeding before a jury for a sexual offence or24\na family violence offence, if evidence is adduced that suggests25\nthat a complainant delayed in making a complaint about the26\noffence or failed to make a complaint about the offence, there is27\nno requirement that the judge warn or direct the jury that the28\ndelay or failure affects the credibility of the complainant.29\n\nEvidence Bill 2025\nPart 8 Proof\nDivision 3 Warnings and information\ns. 321\npage 246\n(2) A judge must not warn the jury, direct the jury or otherwise1\nsuggest to the jury that a delay in making a complaint or a2\nfailure to make a complaint about a sexual offence or a family3\nviolence offence affects the credibility of the complainant4\nexcept as provided for by subsection (3).5\n(3) A judge may warn or direct a jury that a delay in making a6\ncomplaint or a failure to make a complaint affects the credibility7\nof a complainant if —8\n(a) the accused requests the warning or direction; and9\n(b) the court is satisfied that the warning or direction is10\njustified in the particular circumstances of the case.11\n(4) In giving any warning or direction under subsection (3), the12\njudge must not do any of the following —13\n(a) warn the jury, or suggest to the jury, that it is dangerous14\nor unsafe to convict because of the delay in making, or15\nfailure to make, a complaint;16\n(b) warn the jury, or suggest to the jury, that because of the17\ndelay in making, or failure to make, a complaint, the18\nevidence of the complainant should be scrutinised with19\ngreat care.20\n(5) This section does not affect any other power of a judge to give a21\nwarning to, or to inform, the jury.22\n321. Required direction for delays in complaint about sexual and23\nfamily violence offences24\n(1) In a criminal proceeding before a jury for a sexual offence or a25\nfamily violence offence, the judge must give the jury a direction26\nunder this section —27\n(a) if the judge considers that there is likely to be evidence28\nadduced in the trial that suggests that the complainant29\ndelayed in making a complaint or did not make a30\ncomplaint about the offence; or31\n\nEvidence Bill 2025\nProof Part 8\nWarnings and information Division 3\ns. 321\npage 247\n(b) if at any other time evidence is adduced in the trial or a1\ncomment is made to the jury that suggests that the2\ncomplainant delayed in making a complaint or did not3\nmake a complaint about the offence.4\n(2) If subsection (1)(a) applies, the direction must be given before5\nthe evidence is adduced and may be given before any evidence6\nis adduced in the trial.7\n(3) If subsection (1)(b) applies, the direction must be given as soon8\nas practicable.9\n(4) The judge must direct the jury that experience shows that —10\n(a) people may react differently to sexual offences or family11\nviolence (as the case requires) and there is no typical,12\nproper or normal response to a sexual offence or family13\nviolence; and14\n(b) some people may complain immediately to the first15\nperson they see, while others may not complain for16\nsome time and others may never make a complaint; and17\n(c) delay in making a complaint about a sexual offence or18\nfamily violence is a common occurrence.19\n(5) In the case of family violence, the judge may also include in the20\ndirection any matter that could be included in a direction on21\nfamily violence under section 144(1)(b), and section 144(3)22\napplies in relation to that part of the direction in the same way23\nas it applies to a direction on family violence.24\n(6) The judge may repeat a direction under this section at any time25\nduring the criminal proceeding.26\n(7) This section does not affect any other power of a judge to give a27\nwarning to, or to inform, the jury.28\nCompare:29\nEvidence Act 1906 s. 36BD30\n\nEvidence Bill 2025\nPart 8 Proof\nDivision 4 Requests between parties relating to evidence\ns. 322\npage 248\nDivision 4 — Requests between parties relating to evidence1\n322. Application of Division2\nThis Division applies to a civil proceeding.3\n323. Term used: request4\nIn this Division —5\nrequest means a request that a party (the requesting party)6\nmakes to another party to do 1 or more of the following —7\n(a) to produce to the requesting party the whole or a part of8\na specified document or thing;9\n(b) to permit the requesting party, adequately and in an10\nappropriate way, to examine, test or copy the whole or a11\npart of a specified document or thing;12\n(c) to call as a witness a specified person believed to be13\nconcerned in the production or maintenance of a14\nspecified document or thing;15\n(d) to call as a witness a specified person in whose16\npossession or under whose control a specified document17\nor thing is believed to be or to have been at any time;18\n(e) in relation to a document of a kind referred to in19\nsection 6(1)(b) or (c) — to permit the requesting party,20\nadequately and in an appropriate way, to examine and21\ntest the document and the manner in which it was22\nproduced and has been kept;23\n(f) in relation to evidence of a previous representation — to24\ncall as a witness the person who made the previous25\nrepresentation;26\n(g) in relation to evidence that a person has been convicted27\nof an offence, being evidence that can be admitted or28\nused in the proceeding under Part 3 Division 5 — to call29\nas a witness a person who gave evidence in the30\n\nEvidence Bill 2025\nProof Part 8\nRequests between parties relating to evidence Division 4\ns. 324\npage 249\nproceeding in which the person was convicted of the1\noffence.2\nCompare:3\nEvidence Act 1995 (Commonwealth) s. 1664\n324. Requests may be made about certain matters5\nA party may make a reasonable request to another party for the6\npurpose of determining a question that relates to any of the7\nfollowing —8\n(a) a previous representation;9\n(b) evidence of a conviction of a person for an offence;10\n(c) the authenticity, identity or admissibility of a document11\nor thing.12\nCompare:13\nEvidence Act 1995 (Commonwealth) s. 16714\n325. Time limits for making requests15\n(1) If a party has given to another party written notice of its16\nintention to adduce evidence of a previous representation, the17\nother party may make a request to the party relating to the18\nrepresentation only if the request is made within 21 days after19\nthe notice was given.20\n(2) Despite subsection (1), the court may give the other party leave21\nto make a request relating to the representation after the end of22\nthe 21-day period if it is satisfied that there is good reason to do23\nso.24\n(3) If a party has given to another party written notice of its25\nintention to adduce evidence of a person’s conviction of an26\noffence in order to prove a fact in issue, the other party may27\nmake a request relating to evidence of the conviction only if the28\nrequest is made within 21 days after the notice was given.29\n\nEvidence Bill 2025\nPart 8 Proof\nDivision 4 Requests between parties relating to evidence\ns. 326\npage 250\n(4) Despite subsection (3), the court may give the other party leave1\nto make a request relating to evidence of the conviction after the2\nend of the 21-day period if it is satisfied that there is good3\nreason to do so.4\n(5) If a party has served on another party a copy of a document that5\nit intends to tender in evidence, the other party may make a6\nrequest relating to the document only if the request is made7\nwithin 21 days after service of the copy.8\n(6) If the copy of the document served under subsection (5) is9\naccompanied by, or has endorsed on it, a notice stating that the10\ndocument is to be tendered to prove the contents of another11\ndocument, the other party may make a request relating to the12\nother document only if the request is made within 21 days after13\nservice of the copy.14\n(7) Despite subsections (5) and (6), the court may give the other15\nparty leave to make a request relating to the document, or other16\ndocument, after the end of the 21-day period if it is satisfied that17\nthere is good reason to do so.18\nCompare:19\nEvidence Act 1995 (Commonwealth) s. 16820\n326. Failure or refusal to comply with requests21\n(1) If a party has, without reasonable cause, failed or refused to22\ncomply with a request, the court may, on application by the23\nother party, make 1 or more of the following orders —24\n(a) an order directing the party to comply with the request;25\n(b) an order that the party produce a specified document or26\nthing, or call as a witness a specified person;27\n(c) an order that the evidence in relation to which the28\nrequest was made must not be admitted in evidence;29\n(d) any order with respect to adjournment or costs as is just.30\n\nEvidence Bill 2025\nProof Part 8\nRequests between parties relating to evidence Division 4\ns. 326\npage 251\n(2) If the party has, within a reasonable time after receiving the1\nrequest, informed the other party that it refuses to comply with2\nthe request, any application under subsection (1) by the other3\nparty must be made within a reasonable time after being4\ninformed.5\n(3) The court may, on application, direct that evidence in relation to6\nwhich a request was made must not be admitted in evidence if7\nan order made by it under subsection (1)(a) or (b) is not8\ncomplied with.9\n(4) Without limiting the circumstances that may constitute10\nreasonable cause for a party to fail or refuse to comply with a11\nrequest, it is reasonable cause to fail or refuse to comply with a12\nrequest if —13\n(a) the document or thing to be produced is not available to14\nthe party; or15\n(b) the existence and contents of the document are not in16\nissue in the proceeding in which evidence of the17\ndocument is proposed to be adduced; or18\n(c) the person to be called as a witness is not available.19\n(5) Without limiting the matters that the court may take into20\naccount in relation to the exercise of a power under21\nsubsection (1), it must take into account —22\n(a) the importance in the proceeding of the evidence in23\nrelation to which the request was made; and24\n(b) whether there is likely to be a dispute about the matter to25\nwhich the evidence relates; and26\n(c) whether there is a reasonable doubt as to the authenticity27\nor accuracy of the evidence that is, or the document the28\ncontents of which are, sought to be proved; and29\n(d) whether there is a reasonable doubt as to the authenticity30\nof the document or thing that is sought to be tendered;31\nand32\n\nEvidence Bill 2025\nPart 8 Proof\nDivision 4 Requests between parties relating to evidence\ns. 326\npage 252\n(e) if the request relates to evidence of a previous1\nrepresentation — whether there is a reasonable doubt as2\nto the accuracy of the representation or of the evidence3\non which it was based; and4\n(f) if the request relates to evidence that a person has been5\nconvicted of an offence and the request is to call as a6\nwitness a person who gave evidence in the proceeding in7\nwhich the person was convicted — whether another8\nperson is available to give evidence about the conviction9\nor the facts that were in issue in the proceeding in which10\nthe conviction was obtained; and11\n(g) whether compliance with the request would involve12\nundue expense or delay or would not be reasonably13\npracticable; and14\n(h) whether compliance with the request would involve an15\nunwarranted breach of the privacy of a person or cause16\ndistress, humiliation or embarrassment to a person; and17\n(i) the nature of the proceeding.18\nCompare:19\nEvidence Act 1995 (Commonwealth) s. 16920\n\nEvidence Bill 2025\nJudicial notice and facilitation of proof Part 9\nMatters of common knowledge Division 1\ns. 327\npage 253\nPart 9 — Judicial notice and facilitation of proof1\nDivision 1 — Matters of common knowledge2\n327. Judicial notice to be taken of matters of common knowledge3\n(1) Proof is not required about knowledge that is not reasonably4\nopen to question and that is —5\n(a) common knowledge in the locality in which the6\nproceeding is being held or generally; or7\n(b) capable of verification by reference to a document the8\nauthority of which cannot reasonably be questioned.9\n(2) The judge may acquire knowledge of the kind referred to in10\nsubsection (1) in any way the judge thinks fit.11\n(3) The court (including, if there is a jury, the jury) must take12\nknowledge of the kind referred to in subsection (1) into account.13\n(4) The judge must give a party an opportunity to make14\nsubmissions, and to refer to relevant information, relating to the15\nacquiring or taking into account of knowledge of the kind16\nreferred to in subsection (1) as is necessary to ensure that the17\nparty is not unfairly prejudiced.18\n(5) This section does not exclude the application of the principles19\nand rules of common law and equity relating to the effect of a20\ncertificate given by or on behalf of the Crown with respect to a21\nmatter of international affairs.22\nCompare:23\nEvidence Act 1995 (Commonwealth) s. 144 and 14524\n\nEvidence Bill 2025\nPart 9 Judicial notice and facilitation of proof\nDivision 2 Proof of laws\ns. 328\npage 254\nDivision 2 — Proof of laws1\n328. Judicial notice to be taken of Australian laws2\n(1) Proof is not required about the provisions and coming into3\noperation (in whole or in part) of —4\n(a) a Commonwealth Act, a State Act, an Act or Ordinance5\nof a Territory or an Imperial Act in force in Australia; or6\n(b) a regulation, rule or by-law made, or purporting to be7\nmade, under such an Act or Ordinance; or8\n(c) a proclamation or order of the Governor-General, the9\nGovernor of a State or the Administrator or Executive of10\na Territory made, or purporting to be made, under such11\nan Act or Ordinance; or12\n(d) an instrument of a legislative character (including rules13\nof court) made, or purporting to be made, under such an14\nAct or Ordinance, being an instrument that is required15\nby or under a law to be published, or the making of16\nwhich is required by or under a law to be notified, in any17\ngovernment or official gazette (by whatever name18\ncalled) or any government or official website.19\n(2) A judge may inform themselves about any matter referred to in20\nsubsection (1) in any way that the judge thinks fit.21\n(3) A reference in this section to an Act, being an Act of an22\nAustralian Parliament, includes a reference to a private Act23\npassed by that Parliament.24\n(4) This section does not exclude the application of the principles25\nand rules of common law and equity relating to the effect of a26\ncertificate given by or on behalf of the Crown with respect to a27\nmatter of international affairs.28\n\nEvidence Bill 2025\nJudicial notice and facilitation of proof Part 9\nProof of laws Division 2\ns. 329\npage 255\n(5) This section extends to a proceeding before a person acting1\njudicially.2\nCompare:3\nEvidence Act 1995 (Commonwealth) s. 143 and 1454\n329. Proof of laws of foreign countries5\n(1) Evidence of a statute, proclamation, treaty or act of state of a6\nforeign country may be adduced in a proceeding by7\nproducing —8\n(a) a document, containing the statute, proclamation, treaty9\nor act of state, that purports to have been printed or10\npublished by the government or official printer of the11\ncountry or by authority of the government or12\nadministration of the country; or13\n(b) a document, containing the statute, proclamation, treaty14\nor act of state, that appears to the court to be a reliable15\nsource of information; or16\n(c) a document that is or would be used in the courts of the17\ncountry to inform the courts about, or to prove, the18\nstatute, proclamation, treaty or act of state; or19\n(d) a copy of the statute, proclamation, treaty or act of state20\nthat is proved to be an examined copy.21\n(2) A reference in this section to a statute of a foreign country22\nincludes a reference to the following —23\n(a) a regulation, rule or by-law of the foreign country;24\n(b) an instrument of a legislative character (including rules25\nof court) made under a statute of the foreign country.26\nCompare:27\nEvidence Act 1995 (Commonwealth) s. 17428\n330. Evidence of law reports of foreign countries29\n(1) Evidence of the unwritten or common law of a foreign country30\nmay be adduced by producing a document containing reports of31","sortOrder":23},{"sectionNumber":"retrieval-0025","sectionType":"document_chunk","heading":"Document excerpt 25","content":"Evidence Bill 2025\nPart 9 Judicial notice and facilitation of proof\nDivision 2 Proof of laws\ns. 331\npage 256\njudgments of courts of the country if the document is or would1\nbe used in the courts of the country to inform the courts about2\nthe unwritten or common law of the country.3\n(2) Evidence of the interpretation of a statute of a foreign country4\nmay be adduced by producing a document containing reports of5\njudgments of courts of the country if the document is or would6\nbe used in the courts of the country to inform the courts about7\nthe interpretation of the statute.8\n(3) The court may, but is not required to, receive as evidence of the9\nunwritten or common law of a foreign country, or of the10\ninterpretation of a statute of a foreign country, any treatise or11\nexplanation relating to that law contained in a text book or other12\npublished document about the laws of that foreign country.13\n(4) A reference in this section to a statute of a foreign country14\nincludes a reference to the following —15\n(a) a regulation, rule or by-law of the foreign country;16\n(b) an instrument of a legislative character (including rules17\nof court) made under a statute of the foreign country.18\nCompare:19\nEvidence Act 1906 s. 7120\nEvidence Act 1995 (Commonwealth) s. 17521\n331. Questions of foreign law to be decided by judge22\nIf, in a proceeding in which there is a jury, it is necessary to23\nascertain the law of another country that is applicable to the24\nfacts of the case, any question as to the effect of the evidence25\nadduced with respect to that law must be decided by the judge26\nalone.27\nCompare:28\nEvidence Act 1995 (Commonwealth) s. 17629\n\nEvidence Bill 2025\nJudicial notice and facilitation of proof Part 9\nProof of public documents and other official matters Division 3\ns. 332\npage 257\nDivision 3 — Proof of public documents and other official1\nmatters2\n332. Presumption as to authenticity of official publications3\n(1) It is presumed, unless the contrary is proved, that a document4\nthat purports to be any of the following is what it purports to be5\nand was published on the day on which it purports to have been6\npublished —7\n(a) a government or official gazette (by whatever name8\ncalled) of this State, the Commonwealth, another State,9\na Territory or a foreign country;10\n(b) a document printed or published by the Government11\nPrinter or by the government or official printer of the12\nCommonwealth, another State or a Territory;13\n(c) a document printed or published by authority of the14\ngovernment or administration of this State, the15\nCommonwealth, another State, a Territory or a foreign16\ncountry.17\n(2) This section extends to a proceeding before a person acting18\njudicially.19\nCompare:20\nEvidence Act 1995 (Commonwealth) s. 15321\n333. Presumption as to regularity of acts notified in official22\npublications23\n(1) If there is produced to a court a document to which this section24\napplies, and the doing of any of the following acts is notified or25\npublished in the document, it is presumed, unless the contrary is26\nproved, that the act was duly done and, if the day on which the27\nact was done appears in the document, that it was done on that28\nday —29\n(a) an act of the Governor-General or of the Governor of a30\nState or the Administrator of a Territory;31\n\nEvidence Bill 2025\nPart 9 Judicial notice and facilitation of proof\nDivision 3 Proof of public documents and other official matters\ns. 334\npage 258\n(b) an act of a person authorised or empowered to do the act1\nby an Australian law or a law of a foreign country.2\n(2) This section applies to the following documents —3\n(a) a copy of a government or official gazette (by whatever4\nname called) of this State, the Commonwealth, another5\nState, a Territory or a foreign country;6\n(b) a document that purports to have been printed or7\npublished by the Government Printer or by the8\ngovernment or official printer of the Commonwealth,9\nanother State or a Territory;10\n(c) a document that purports to have been printed or11\npublished by authority of the government or12\nadministration of this State, the Commonwealth, another13\nState, a Territory or a foreign country.14\n(3) This section extends to a proceeding before a person acting15\njudicially.16\nCompare:17\nEvidence Act 1995 (Commonwealth) s. 15318\n334. Presumption as to authenticity of Parliamentary documents19\n(1) It is presumed, unless the contrary is proved, that a document20\npurporting to have been printed or published by authority of an21\nAustralian Parliament, a House of an Australian Parliament, a22\ncommittee of a House of an Australian Parliament or a23\ncommittee of an Australian Parliament —24\n(a) is what it purports to be; and25\n(b) was published on the day on which it purports to have26\nbeen published.27\n(2) This section extends to a proceeding before a person acting28\njudicially.29\nCompare:30\nEvidence Act 1995 (Commonwealth) s. 15431\n\nEvidence Bill 2025\nJudicial notice and facilitation of proof Part 9\nProof of public documents and other official matters Division 3\ns. 335\npage 259\n335. Presumption as to authenticity of Commonwealth records1\nand public documents2\n(1) In this section —3\nCommonwealth record has the meaning given in the Evidence4\nAct 1995 (Commonwealth) Dictionary Part 1.5\n(2) Evidence of a Commonwealth record or of a public document of6\nthis State, another State or a Territory may be adduced by7\nproducing a document that —8\n(a) purports to be a Commonwealth record or public9\ndocument and to be signed or sealed by —10\n(i) a Minister of the Commonwealth, or a Minister11\nof this or another State or a Territory, as the case12\nrequires; or13\n(ii) a person who might reasonably be supposed to14\nhave custody of the record or document;15\nor16\n(b) purports to be a copy of or extract from the record or17\ndocument that is certified to be a true copy or extract18\nby —19\n(i) a Minister of the Commonwealth, or a Minister20\nof this or another State or a Territory, as the case21\nrequires; or22\n(ii) a person who might reasonably be supposed to23\nhave custody of the record or document.24\n(3) If the document is produced, it is presumed, unless evidence25\nthat is sufficient to raise doubt about the presumption is26\nadduced, that —27\n(a) the document is the record, public document, copy or28\nextract that it purports to be; and29\n(b) the Minister of the Commonwealth, the Minister of this30\nor another State or a Territory or person signed or sealed31\n\nEvidence Bill 2025\nPart 9 Judicial notice and facilitation of proof\nDivision 3 Proof of public documents and other official matters\ns. 336\npage 260\nthe record or document, or certified the copy or extract1\nas a true copy or extract, as the case requires.2\n(4) This section extends to a proceeding before a person acting3\njudicially.4\nCompare:5\nEvidence Act 1995 (Commonwealth) s. 1556\n336. Presumption as to authenticity of copies, extracts and7\nsummaries of public documents8\n(1) A document that purports to be a copy of, or an extract from or9\nsummary of, a public document is presumed, unless the contrary10\nis proved, to be a copy of the public document, or an extract11\nfrom or summary of the public document, if it purports to have12\nbeen —13\n(a) sealed with the seal of a person who, or a body that,14\nmight reasonably be supposed to have the custody of the15\npublic document; or16\n(b) certified as a copy, extract or summary by a person who17\nmight reasonably be supposed to have custody of the18\npublic document.19\n(2) If an officer entrusted with the custody of a public document is20\nrequired by a court to produce the public document, it is21\nsufficient compliance with the requirement for the officer to22\nproduce a copy of, or extract from, the public document if it23\npurports to be signed and certified by the officer as a true copy24\nor extract.25\n(3) It is sufficient production of a copy or extract for the purposes26\nof subsection (2) if the officer sends it by prepaid post, or causes27\nit to be delivered, to —28\n(a) the proper officer of the court in which it is to be29\nproduced; or30\n(b) the person before whom it is to be produced.31\n\nEvidence Bill 2025\nJudicial notice and facilitation of proof Part 9\nProof of public documents and other official matters Division 3\ns. 337\npage 261\n(4) The court before which a copy or extract is produced under1\nsubsection (2) may direct the officer to produce the original2\npublic document.3\n(5) This section extends to a proceeding before a person acting4\njudicially.5\nCompare:6\nEvidence Act 1995 (Commonwealth) s. 1567\n337. Presumption as to authenticity of official seals and8\nsignatures9\n(1) In this section —10\noffice holder means —11\n(a) the Sovereign; or12\n(b) the Governor-General; or13\n(c) the Governor of a State; or14\n(d) the Administrator of a Territory; or15\n(e) a person holding any other office under an Australian16\nlaw or a law of a foreign country.17\n(2) If the imprint of a seal appears on a document and purports to be18\nthe imprint of any of the following, it is presumed, unless the19\ncontrary is proved, that the imprint is the imprint of that seal,20\nand the document was duly sealed as it purports to have been21\nsealed —22\n(a) a Royal Great Seal;23\n(b) the Great Seal of Australia;24\n(c) another seal of the Commonwealth;25\n(d) a seal of a State, a Territory or a foreign country;26\n(e) the seal of a body (including a court or a tribunal), or a27\nbody corporate, established by or under Royal Charter28\nor by an Australian law or the law of a foreign country.29\n\nEvidence Bill 2025\nPart 9 Judicial notice and facilitation of proof\nDivision 3 Proof of public documents and other official matters\ns. 338\npage 262\n(3) If the imprint of a seal appears on a document and purports to be1\nthe imprint of the seal of an office holder, it is presumed, unless2\nthe contrary is proved, that —3\n(a) the imprint is the imprint of that seal; and4\n(b) the document was duly sealed by the office holder5\nacting in the office holder’s official capacity; and6\n(c) the office holder held the relevant office when the7\ndocument was sealed.8\n(4) If a document purports to have been signed by an office holder9\nin the office holder’s official capacity, it is presumed, unless the10\ncontrary is proved, that —11\n(a) the document was signed by the office holder acting in12\nthat capacity; and13\n(b) the office holder held the relevant office when the14\ndocument was signed.15\n(5) This section extends to a proceeding before a person acting16\njudicially.17\nCompare:18\nEvidence Act 1995 (Commonwealth) s. 150 and 15119\n338. Proof of public documents of other States or Territories20\n(1) A public document, or a certified copy of a public document, of21\nanother State or a Territory that purports to be sealed, or signed22\nand sealed, or signed alone, as directed by the law of that State23\nor Territory and that is admissible for a purpose in that State or24\nTerritory under the law of that State or Territory is admissible in25\nevidence to the same extent and for that purpose in this State —26\n(a) without proof of the seal or signature or of the official27\ncharacter of the person appearing to have signed the28\ndocument; and29\n(b) without further proof in every case in which the original30\ndocument could have been received in evidence.31\n\nEvidence Bill 2025\nJudicial notice and facilitation of proof Part 9\nProof of public documents and other official matters Division 3\ns. 339\npage 263\n(2) A public document of another State or a Territory that is1\nadmissible in evidence for any purpose in that State or Territory2\nunder the law of that State or Territory without proof of the3\nfollowing matters is admissible in evidence to the same extent4\nand for any purpose in this State without proof of those5\nmatters —6\n(a) the seal or signature authenticating the document;7\n(b) the judicial or official character of the person appearing8\nto have signed the document.9\n(3) This section only applies to documents that are public records of10\nanother State or a Territory.11\n(4) This section extends to a proceeding before a person acting12\njudicially.13\nCompare:14\nEvidence Act 1995 (Commonwealth) s. 15815\n339. Proof of public documents relating to judgments, acts and16\nprocesses of courts17\n(1) Evidence of a public document that is a judgment (including18\nreasons for judgment), act or other process of an Australian19\ncourt or a foreign court, or that is a document lodged with an20\nAustralian court or a foreign court, may be adduced by21\nproducing a document that purports to be a copy of the public22\ndocument and that —23\n(a) is proved to be an examined copy; or24\n(b) purports to be sealed with the seal of that court; or25\n(c) purports to be signed by a judge, magistrate, registrar or26\nother proper officer of that court.27\n(2) This section extends to a proceeding before a person acting28\njudicially.29\nCompare:30\nEvidence Act 1995 (Commonwealth) s. 15731\n\nEvidence Bill 2025\nPart 9 Judicial notice and facilitation of proof\nDivision 4 Proof of other matters relating to documents and things\ns. 340\npage 264\n340. Proof of official statistics1\n(1) In this section —2\nAustralian Statistician —3\n(a) means the Australian Statistician referred to in the4\nAustralian Bureau of Statistics Act 19755\n(Commonwealth) section 5(2); and6\n(b) includes any person to whom the powers of the7\nAustralian Statistician under the Census and Statistics8\nAct 1905 (Commonwealth) section 12 have been9\ndelegated.10\n(2) A document containing statistics or abstracts is evidence that11\nthose statistics or abstracts were compiled and analysed by the12\nAustralian Statistician under the Census and Statistics Act 190513\n(Commonwealth) if the document purports —14\n(a) to be published by the Australian Statistician; and15\n(b) to contain statistics or abstracts compiled and analysed16\nby the Australian Statistician under the Census and17\nStatistics Act 1905 (Commonwealth).18\n(3) This section extends to a proceeding before a person acting19\njudicially.20\nCompare:21\nEvidence Act 1995 (Commonwealth) s. 15922\nDivision 4 — Proof of other matters relating to documents and23\nthings24\n341. Presumption relating to documents and things produced by25\nprocesses and devices26\n(1) This section applies to a document or thing —27\n(a) that is produced wholly or partly by a device or process;28\nand29\n\nEvidence Bill 2025\nJudicial notice and facilitation of proof Part 9\nProof of other matters relating to documents and things Division 4\ns. 342\npage 265\n(b) that is tendered by a party who asserts that, in producing1\nthe document or thing, the device or process has2\nproduced a particular outcome.3\n(2) If it is reasonably open to find that the device or process is one4\nthat, or is of a kind that, if properly used, ordinarily produces5\nthat outcome, it is presumed (unless evidence sufficient to raise6\ndoubt about the presumption is adduced) that, in producing the7\ndocument or thing on the occasion in question, the device or8\nprocess produced that outcome.9\nExample for this section:10\nIt would not be necessary to call evidence to prove that a photocopier11\nnormally produced complete copies of documents and that it was12\nworking properly when it was used to photocopy a particular document.13\nCompare:14\nEvidence Act 1995 (Commonwealth) s. 14615\n342. Presumption relating to business documents produced by16\nprocesses and devices17\n(1) This section applies to a document —18\n(a) that is produced wholly or partly by a device or process;19\nand20\n(b) that is tendered by a party who asserts that, in producing21\nthe document, the device or process has produced a22\nparticular outcome.23\n(2) It is presumed (unless evidence sufficient to raise doubt about24\nthe presumption is adduced) that, in producing the document on25\nthe occasion in question, the device or process produced that26\noutcome if —27\n(a) the document is, or was at the time it was produced, part28\nof the records of, or kept for the purposes of, a business29\n(whether or not the business is still in existence); and30\n(b) the device or process is or was at that time used for the31\npurposes of the business.32\n\nEvidence Bill 2025\nPart 9 Judicial notice and facilitation of proof\nDivision 4 Proof of other matters relating to documents and things\ns. 343\npage 266\n(3) Subsection (2) does not apply to the contents of a document that1\nwas produced —2\n(a) for the purpose of conducting, or for or in contemplation3\nof or in connection with, an Australian or overseas4\nproceeding; or5\n(b) in connection with an investigation relating or leading to6\na criminal proceeding.7\nCompare:8\nEvidence Act 1995 (Commonwealth) s. 1479\n343. Findings about accuracy of documents produced by devices10\nand processes11\n(1) This section applies to a document that is tendered by a party12\nwho asserts that the document is admissible as evidence of the13\ncontents of another document because —14\n(a) the document is a copy or accurate reproduction of the15\nother document; and16\n(b) the document has been produced by a device that17\nreproduces the contents of documents or has been made18\nby any other process or in any other way.19\n(2) In making a finding about whether the document is a copy or20\naccurate reproduction of another document, the court is not21\nbound by the rules of evidence and may make that finding —22\n(a) based on its own knowledge about the nature and23\nreliability of the device or process by which, or way in24\nwhich, the document was produced; or25\n(b) based on evidence of a person with knowledge and26\nexperience of the device or process by which, or way in27\nwhich, the copy or reproduction was made; or28\n(c) based on evidence of a person who has compared the29\ncontents of both documents and found them to be30\nidentical; or31","sortOrder":24},{"sectionNumber":"retrieval-0026","sectionType":"document_chunk","heading":"Document excerpt 26","content":"Evidence Bill 2025\nJudicial notice and facilitation of proof Part 9\nProof of other matters relating to documents and things Division 4\ns. 344\npage 267\n(d) on any other basis it considers appropriate in the1\ncircumstances.2\n(3) The court must state the reason for making a finding that the3\ndocument is or is not a copy or accurate reproduction of another4\ndocument if requested to do so by a party to the proceeding.5\n(4) If a document is made by a device or process that is prescribed6\nby the regulations for the purposes of this subsection, the device7\nor process is presumed to produce a copy or accurate8\nreproduction of the document purportedly copied or reproduced,9\nunless the contrary is proved.10\n(5) This section does not apply to or in respect of a copy of a11\ndocument if the copy is admissible under another written law.12\nCompare:13\nEvidence Act 1906 s. 73A14\n344. Presumption as to documents attested by justices, lawyers15\nand notaries public16\nIt is presumed, unless the contrary is proved, that a document17\nwas attested or verified by, or signed or acknowledged before, a18\njustice of the peace, lawyer or notary public, if —19\n(a) an Australian law requires, authorises or permits it to be20\nattested, verified, signed or acknowledged by a justice of21\nthe peace, a lawyer or a notary public, as the case may22\nbe; and23\n(b) it purports to have been attested, verified, signed or24\nacknowledged as referred to in paragraph (a).25\nCompare:26\nEvidence Act 1995 (Commonwealth) s. 14827\n345. Testimony of attesting witness not required28\nIt is not necessary to adduce the evidence of an attesting witness29\nto a document (not being a testamentary document) to prove30\n\nEvidence Bill 2025\nPart 9 Judicial notice and facilitation of proof\nDivision 4 Proof of other matters relating to documents and things\ns. 346\npage 268\nthat the document was signed or attested as it purports to have1\nbeen signed or attested.2\nCompare:3\nEvidence Act 1995 (Commonwealth) s. 1494\n346. Presumption as to documents produced from proper5\ncustody6\n(1) If a document that is or purports to be more than 20 years of age7\nis produced from proper custody, it is presumed, unless the8\ncontrary is proved, that —9\n(a) the document is the document that it purports to be; and10\n(b) if it purports to have been executed or attested by a11\nperson — it was duly executed or attested by that12\nperson.13\n(2) The presumption referred to in subsection (1) extends to a copy14\nof a document referred to in subsection (1) that is admitted into15\nevidence as if the copy were the document.16\nCompare:17\nEvidence Act 1906 s. 73N18\nEvidence Act 1995 (Commonwealth) s. 15219\n347. Proof of foreign documents admissible in foreign countries20\n(1) A document that is admissible in evidence for a purpose in a21\nforeign court prescribed by the regulations for the purposes of22\nthis section without proof of the following matters is admissible23\nin evidence to the same extent and for the same purpose in this24\nState without proof of those matters —25\n(a) the seal or signature authenticating the document; or26\n(b) the judicial or official character of the person appearing27\nto have signed the document.28\n\nEvidence Bill 2025\nJudicial notice and facilitation of proof Part 9\nProof of communications Division 5\ns. 348\npage 269\n(2) This section extends to a proceeding before a person acting1\njudicially.2\nCompare:3\nEvidence Act 1906 s. 624\nDivision 5 — Proof of communications5\n348. Presumption relating to receipt of postal articles6\n(1) In this section —7\npostal article has the meaning given in the Australian Postal8\nCorporation Act 1989 (Commonwealth) section 3;9\nworking day means a day that is not —10\n(a) a Saturday or a Sunday; or11\n(b) a public holiday or a bank holiday in the place to which12\nthe postal article was addressed.13\n(2) It is presumed (unless evidence sufficient to raise doubt about14\nthe presumption is adduced) that a postal article sent by prepaid15\npost addressed to a person at a specified address in Australia or16\nin an external Territory was received by the person at that17\naddress on the 7th working day after having been posted.18\n(3) This section does not apply if —19\n(a) the proceeding relates to a contract; and20\n(b) all the parties to the proceeding are parties to the21\ncontract; and22\n(c) subsection (2) is inconsistent with a term of the contract.23\nCompare:24\nEvidence Act 1995 (Commonwealth) s. 16025\n349. Presumptions relating to electronic communications26\n(1) If a document purports to contain a record of an electronic27\ncommunication, it is presumed (unless evidence sufficient to28\n\nEvidence Bill 2025\nPart 9 Judicial notice and facilitation of proof\nDivision 5 Proof of communications\ns. 350\npage 270\nraise doubt about the presumption is adduced) that the1\ncommunication —2\n(a) was sent or made in the form of electronic3\ncommunication that appears from the document to have4\nbeen the form by which it was sent or made; and5\n(b) was sent or made by or on behalf of the person by or on6\nwhose behalf it appears from the document to have been7\nsent or made; and8\n(c) was sent or made on the day on which, at the time at9\nwhich and from the place from which it appears from10\nthe document to have been sent or made; and11\n(d) was received at the destination to which it appears from12\nthe document to have been sent; and13\n(e) if it appears from the document that the sending of the14\ncommunication concluded at a particular time — was15\nreceived at that destination at that time.16\n(2) A provision of subsection (1) does not apply if —17\n(a) the proceeding relates to a contract; and18\n(b) all the parties to the proceeding are parties to the19\ncontract; and20\n(c) the provision is inconsistent with a term of the contract.21\n(3) This section does not apply to a document that purports to22\ncontain a record of a message transmitted by means of a23\nlettergram or telegram.24\nCompare:25\nEvidence Act 1995 (Commonwealth) s. 16126\n350. Presumption relating to receipt of lettergrams and27\ntelegrams28\n(1) If a document purports to contain a record of a message29\ntransmitted by means of a lettergram or telegram, it is presumed30\n(unless evidence sufficient to raise doubt about the presumption31\nis adduced) that the message was received by the person to32\n\nEvidence Bill 2025\nJudicial notice and facilitation of proof Part 9\nProof of matters relating to documents or things by affidavit or\nwritten statement\nDivision 6\ns. 351\npage 271\nwhom it was addressed 24 hours after the message was1\ndelivered to a post office for transmission as a lettergram or2\ntelegram.3\n(2) This section does not apply if —4\n(a) the proceeding relates to a contract; and5\n(b) all the parties to the proceeding are parties to the6\ncontract; and7\n(c) subsection (1) is inconsistent with a term of the contract.8\nCompare:9\nEvidence Act 1995 (Commonwealth) s. 16210\nDivision 6 — Proof of matters relating to documents or things11\nby affidavit or written statement12\n351. Application of Division13\nThis Division applies to evidence of a fact that is, because of a14\nprovision of this Act referred to in the Table, to be proved in15\nrelation to a document or thing.16\nTable17\nProvision Subject matter\nSection 59 Proof of contents of documents\nSections 76, 77 and 78 Hearsay rule exceptions for\nfirst-hand hearsay\nSection 83 Hearsay rule exception for business\nrecords\nSection 84 Hearsay rule exception for tags,\nlabels and writing\n\nEvidence Bill 2025\nPart 9 Judicial notice and facilitation of proof\nDivision 6 Proof of matters relating to documents or things by affidavit or\nwritten statement\ns. 352\npage 272\nProvision Subject matter\nSection 85 Hearsay rule exception for\nelectronic communication\nPart 9 Division 3 Proof of public documents and\nother official matters\nPart 9 Division 4 Proof of other matters relating to\ndocuments and things\nPart 9 Division 5 Proof of communications\nCompare:1\nEvidence Act 1995 (Commonwealth) s. 170(1)2\n352. Persons who may give evidence3\n(1) Evidence may be given by —4\n(a) a person who, at the relevant time or afterwards, had a5\nposition of responsibility in relation to making or6\nkeeping the document or thing; or7\n(b) any of the following persons (each of whom is an8\nauthorised person) —9\n(i) a person who is an authorised witness for an10\naffidavit or statutory declaration that is made11\noutside the State under the Oaths, Affidavits and12\nStatutory Declarations Act 2005 section 9(8)13\nor 12(6)(b) or (c);14\n(ii) a police officer of or above the rank of sergeant;15\n(iii) a person authorised by the Minister for the16\npurposes of this section.17\n(2) Despite subsection (1)(b), evidence must not be given by an18\nauthorised person who, at the relevant time or afterwards, did19\nnot have a position of responsibility in relation to making or20\n\nEvidence Bill 2025\nJudicial notice and facilitation of proof Part 9\nProof of matters relating to documents or things by affidavit or\nwritten statement\nDivision 6\ns. 353\npage 273\nkeeping the document or thing unless it appears to the court1\nthat —2\n(a) it is not reasonably practicable for the evidence to be3\ngiven by a person who had, at the relevant time or4\nafterwards, a position of responsibility in relation to5\nmaking or keeping the document or thing; or6\n(b) having regard to all the circumstances of the case, undue7\nexpense would be caused by calling a person who had,8\nat the relevant time or afterwards, a position of9\nresponsibility in relation to making or keeping the10\ndocument or thing, as a witness.11\n(3) Subsection (1)(b) does not apply to evidence of a fact that must12\nbe proved in relation to a document or thing because of13\nsection 76, 77 or 78.14\nCompare:15\nEvidence Act 1995 (Commonwealth) s. 17116\n353. Form in which evidence may be given17\nEvidence may be given by affidavit or, if the evidence relates to18\na public document, by a written statement.19\nCompare:20\nEvidence Act 1995 (Commonwealth) s. 170(2)21\n354. Evidence based on knowledge, belief or information22\n(1) Despite Part 3, evidence may include evidence based on the23\nknowledge and belief of the person who gives it, or on24\ninformation that that person has.25\n(2) An affidavit or statement that includes evidence based on26\nknowledge, information or belief must set out the source of the27\nknowledge or information or the basis of the belief.28\nCompare:29\nEvidence Act 1995 (Commonwealth) s. 17230\n\nEvidence Bill 2025\nPart 9 Judicial notice and facilitation of proof\nDivision 7 Proof of other matters by certificate or affidavit\ns. 355\npage 274\n355. Notification of other parties1\n(1) A copy of the affidavit or statement must be served on each2\nparty within a reasonable time before the hearing of the3\nproceeding.4\n(2) The party who tenders the affidavit or statement must, if another5\nparty requests it, call the deponent or person who made the6\nstatement to give evidence but need not otherwise do so.7\nCompare:8\nEvidence Act 1995 (Commonwealth) s. 1739\nDivision 7 — Proof of other matters by certificate or affidavit10\n356. Certificate of expert evidence11\n(1) Evidence of a person’s opinion may be adduced by tendering a12\ncertificate (an expert certificate) signed by the person that —13\n(a) states the person’s name and address; and14\n(b) states that the person has specialised knowledge based15\non the person’s training, study or experience, as16\nspecified in the certificate; and17\n(c) sets out an opinion that the person holds and that is18\nexpressed to be wholly or substantially based on that19\nknowledge.20\n(2) Subsection (1) does not apply unless the party seeking to tender21\nthe expert certificate has served on each other party —22\n(a) a copy of the certificate; and23\n(b) a written notice stating that the party proposes to tender24\nthe certificate as evidence of the opinion.25\n(3) Service must be effected not later than —26\n(a) 21 days before the hearing; or27\n(b) if, on application by the party before or after service, the28\ncourt substitutes a different period — the beginning of29\nthat period.30\n\nEvidence Bill 2025\nJudicial notice and facilitation of proof Part 9\nProof of other matters by certificate or affidavit Division 7\ns. 357\npage 275\n(4) Service for the purposes of subsection (2) may be proved by1\naffidavit.2\n(5) A party on whom the documents referred to in subsection (2)3\nare served may, by written notice served on the party proposing4\nto tender the expert certificate, require the party to call the5\nperson who signed the certificate to give evidence.6\n(6) The expert certificate is not admissible as evidence if that7\nrequirement is made.8\n(7) The court may make any order with respect to costs that it9\nconsiders just against a party who has, without reasonable10\ncause, required a party to call a person to give evidence under11\nthis section.12\nCompare:13\nEvidence Act 1995 (Commonwealth) s. 17714\n357. Certificate evidence of convictions, acquittals, sentences and15\nother court matters16\n(1) In this section —17\nacquittal includes the dismissal of the charge in question by an18\napplicable court;19\napplicable court means an Australian court or a foreign court.20\n(2) This section applies to the following facts —21\n(a) the conviction or acquittal before or by an applicable22\ncourt of a person charged with an offence;23\n(b) the sentencing of a person to any punishment or24\npecuniary penalty by an applicable court;25\n(c) an order by an applicable court;26\n(d) the pendency or existence at any time before an27\napplicable court of a civil or criminal proceeding.28\n\nEvidence Bill 2025\nPart 9 Judicial notice and facilitation of proof\nDivision 7 Proof of other matters by certificate or affidavit\ns. 357\npage 276\n(3) Evidence of a fact to which this section applies may be given by1\na certificate signed by a judge, a magistrate or a registrar or2\nother proper officer of the applicable court —3\n(a) showing the fact, or purporting to contain particulars, of4\nthe record, indictment, conviction, acquittal, sentence,5\norder or proceeding in question; and6\n(b) stating the time and place of the conviction, acquittal,7\nsentence, order or proceeding; and8\n(c) stating the title of the applicable court.9\n(4) A certificate given under this section showing a conviction,10\nacquittal, sentence or order is also evidence of the particular11\noffence or matter in respect of which the conviction, acquittal,12\nsentence or order was had, passed or made, if stated in the13\ncertificate.14\n(5) A certificate given under this section showing the pendency or15\nexistence of a proceeding is also evidence of the particular16\nnature and occasion, or ground and cause, of the proceeding, if17\nstated in the certificate.18\n(6) A certificate given under this section purporting to contain19\nparticulars of a record, indictment, conviction, acquittal,20\nsentence, order or proceeding is also evidence of the matters21\nstated in the certificate.22\n(7) This section does not affect the operation of section 107 or any23\nother provision of this Act that limits the admissibility of24\nevidence of a fact to which this section applies.25\nCompare:26\nEvidence Act 1995 (Commonwealth) s. 17827\n\nEvidence Bill 2025\nJudicial notice and facilitation of proof Part 9\nProof of other matters by certificate or affidavit Division 7\ns. 358\npage 277\n358. Affidavit evidence of identity of convicted persons by State1\nand Territory police2\n(1) This section applies if a member of a police force of a State or3\nTerritory —4\n(a) makes an affidavit in the form prescribed by the5\nregulations for the purposes of this section; and6\n(b) states in the affidavit that the member is a fingerprint7\nexpert for that police force.8\n(2) For the purpose of proving before a court the identity of a9\nperson alleged to have been convicted in that State or Territory10\nof an offence, the affidavit is evidence in a proceeding that the11\nperson whose fingerprints are shown on a fingerprint card12\nreferred to in the affidavit and marked for identification —13\n(a) is the person referred to in a certificate of conviction, or14\ncertified copy of conviction annexed to the affidavit, as15\nhaving been convicted of an offence; and16\n(b) was convicted of that offence; and17\n(c) was convicted of any other offence of which the person18\nis stated in the affidavit to have been convicted.19\n(3) For the purposes of this section, if a Territory does not have its20\nown police force, the police force performing the policing21\nfunctions of the Territory is taken to be the police force of the22\nTerritory.23\nCompare:24\nEvidence Act 1995 (Commonwealth) s. 17925\n359. Affidavit evidence of identity of convicted persons by AFP26\nemployees and special members27\n(1) In this section —28\nAFP employee has the meaning given in the Australian Federal29\nPolice Act 1979 (Commonwealth) section 4(1);30","sortOrder":25},{"sectionNumber":"retrieval-0027","sectionType":"document_chunk","heading":"Document excerpt 27","content":"Evidence Bill 2025\nPart 9 Judicial notice and facilitation of proof\nDivision 7 Proof of other matters by certificate or affidavit\ns. 360\npage 278\nAFP special member means a special member of the Australian1\nFederal Police as defined in the Australian Federal Police2\nAct 1979 (Commonwealth) section 4(1).3\n(2) This section applies if an AFP employee or AFP special4\nmember —5\n(a) makes an affidavit in the form prescribed by the6\nregulations for the purposes of this section; and7\n(b) states in the affidavit that the AFP employee or8\nAFP special member is a fingerprint expert for the9\nAustralian Federal Police.10\n(3) For the purpose of proving before a court the identity of a11\nperson alleged to have been convicted of any offence against a12\nlaw of the Commonwealth, the affidavit is evidence in a13\nproceeding that the person whose fingerprints are shown on a14\nfingerprint card referred to in the affidavit and marked for15\nidentification —16\n(a) is the person referred to in a certificate of conviction, or17\ncertified copy of conviction annexed to the affidavit, as18\nhaving been convicted of an offence; and19\n(b) was convicted of that offence; and20\n(c) was convicted of any other offence of which the person21\nis stated in the affidavit to have been convicted.22\nCompare:23\nEvidence Act 1995 (Commonwealth) s. 18024\n360. Forensic biology certificates25\n(1) In this section and section 361 —26\nexamination, of a thing, includes testing the thing;27\nforensic scientist means a person appointed under28\nsection 362(1) as a forensic scientist for the purposes of this29\nsection;30\nthing includes anything in or on or otherwise attached to the31\nthing.32\n\nEvidence Bill 2025\nJudicial notice and facilitation of proof Part 9\nProof of other matters by certificate or affidavit Division 7\ns. 360\npage 279\n(2) This section applies to a criminal proceeding.1\n(3) A certificate (a forensic biology certificate) purporting to be2\nsigned by a forensic scientist and stating any of the following3\nmatters is evidence of the matter —4\n(a) that a stated thing was received at a stated laboratory on5\na stated day;6\n(b) that the thing was examined at the laboratory on a stated7\nday or between stated days;8\n(c) that a DNA profile was, or a stated number of DNA9\nprofiles were, obtained from the thing;10\n(d) that a forensic scientist —11\n(i) examined the laboratory’s records relating to the12\nreceipt, storage and examination of the thing,13\nincluding any examination of the thing that was14\ndone by a person other than the forensic scientist;15\nand16\n(ii) confirms that the records indicate that all quality17\nassurance procedures for the receipt, storage and18\nexamination of the thing that applied in the19\nlaboratory at the time the thing was examined20\nwere complied with.21\n(4) In subsection (3) —22\nDNA profile means the result from DNA analysis.23\n(5) Any equipment used in examining the thing at the laboratory is24\ntaken to have given accurate results in the absence of evidence25\nto the contrary.26\nCompare:27\nEvidence Act 1906 s. 50B28\n\nEvidence Bill 2025\nPart 9 Judicial notice and facilitation of proof\nDivision 7 Proof of other matters by certificate or affidavit\ns. 361\npage 280\n361. Procedure for using forensic biology certificates1\n(1) In this section and section 362 —2\nauthorised officer, for a laboratory, means a person who holds3\nan office prescribed by the regulations for the purposes of this4\ndefinition in relation to that laboratory.5\n(2) In this section —6\nforensic biology certificate has the meaning given in7\nsection 360(3).8\n(3) A party who intends to rely on a forensic biology certificate in a9\ncriminal proceeding must —10\n(a) give a copy of the certificate to each other party at least11\n14 days before the day set for the start of the trial in the12\nproceeding; and13\n(b) at the hearing, call the forensic scientist who gave the14\ncertificate to give evidence, unless the parties agree15\notherwise.16\n(4) If the authorised officer for a laboratory receives a written17\nrequest from a party for a copy of the laboratory’s records18\nrelating to the receipt, storage and examination of the thing19\nreferred to in a forensic biology certificate, the authorised20\nofficer must give the party a copy of the records within 10 days21\nafter receiving the request.22\n(5) If a party intends to dispute a matter stated in the forensic23\nbiology certificate, the party must, at least 7 days before the day24\nset for the start of the trial in the proceeding, give the authorised25\nofficer and each other party written notice of the matter to be26\ndisputed.27\n(6) A party disputing a matter stated in the forensic biology28\ncertificate may, with the leave of the court, require the party29\nrelying on the certificate to call any person involved in the30\nreceipt, storage or examination of the thing referred to in the31\ncertificate to give evidence at the hearing.32\n\nEvidence Bill 2025\nJudicial notice and facilitation of proof Part 9\nProof of other matters by certificate or affidavit Division 7\ns. 362\npage 281\n(7) The court may give leave only if satisfied —1\n(a) that an irregularity may exist in relation to the receipt,2\nstorage or examination of the thing about which the3\nperson to be called is able to give evidence; and4\n(b) that it is in the interests of justice that the person be5\ncalled to give evidence.6\n(8) The court may, by order, extend or shorten a time fixed by this7\nsection by fixing a new time or by extending or shortening the8\ntime.9\n(9) An application for an order under subsection (8) may be made10\nbefore or after the time fixed by this section expires.11\n(10) A document required to be given under this section must be12\ngiven in accordance with any regulations or rules of court made13\nfor the purposes of this section.14\nCompare:15\nEvidence Act 1906 s. 50B16\n362. Appointment of persons as forensic scientists for purposes of17\ns. 36018\n(1) The authorised officer for a laboratory may, in writing, appoint19\na person as a forensic scientist for the purposes of section 360 if20\nsatisfied that the person has the necessary qualifications and21\nexperience to be a forensic scientist.22\n(2) A person may be appointed as a forensic scientist for the23\npurposes of section 360 for a fixed or indefinite period.24\n(3) The authorised officer for a laboratory may, in writing, revoke25\nan appointment under subsection (1) at any time.26\n\nEvidence Bill 2025\nPart 9 Judicial notice and facilitation of proof\nDivision 8 Proof of particular matters in criminal proceedings\ns. 363\npage 282\n363. Proof of service of statutory notifications, notices, orders1\nand directions2\n(1) The service, giving or sending under an Australian law of a3\nwritten notification, notice, order or direction may be proved by4\naffidavit of the person who served, gave or sent it.5\n(2) A person who, for the purposes of a proceeding, makes an6\naffidavit referred to in this section is not, because of making the7\naffidavit, excused from attending for cross-examination if8\nrequired to do so by a party to the proceeding.9\nCompare:10\nEvidence Act 1995 (Commonwealth) s. 18111\nDivision 8 — Proof of particular matters in criminal12\nproceedings13\n364. Proof of intention to injure, deceive or defraud14\nIn any criminal proceeding in which it is necessary to prove an15\nintention to injure or deceive or defraud, or an intention to16\nenable another person to deceive or defraud, it is not necessary17\nto prove an intention to injure or deceive or defraud a particular18\nperson or an intention to enable any particular person to deceive19\nor defraud any particular person.20\nCompare:21\nEvidence Act 1906 s. 2922\n365. Evidence of stealing or receiving property from aircraft,23\nvehicle, vessel or related premises24\n(1) In this section —25\naircraft, vehicle and vessel have the meanings given in The26\nCriminal Code section 1(1);27\nshipping document includes a bill of lading, manifest, shipping28\nreceipt, delivery order, packing list, waybill or invoice.29\n\nEvidence Bill 2025\nJudicial notice and facilitation of proof Part 9\nProof of particular matters in criminal proceedings Division 8\ns. 365\npage 283\n(2) This section applies to a criminal proceeding for an offence1\nof —2\n(a) stealing property from an aircraft, vehicle or vessel; or3\n(b) stealing property from any building, structure or place4\nused in connection with the docking, loading or5\nunloading of an aircraft, vehicle or vessel; or6\n(c) receiving any property stolen as referred to in7\nparagraph (a) or (b); or8\n(d) being in possession of anything that may reasonably be9\nsuspected of being stolen as referred to in paragraph (a)10\nor (b).11\n(3) In the proceeding —12\n(a) evidence may be given of any writing, printing or marks13\non the property the subject of the proceeding without14\nproducing or giving notice to produce the original15\nwriting, printing or marks; and16\n(b) any apparently genuine document purporting to be a17\nshipping document for the property or for property that18\nmay reasonably be assumed to be the same as the19\nproperty the subject of the proceeding —20\n(i) is admissible in evidence on production and21\nwithout further proof; and22\n(ii) is evidence of the particulars contained in the23\ndocument and that the ownership of the property24\nis in the consignee referred to in the document or25\nan assignee of that consignee.26\n(4) In deciding whether any property described in a shipping27\ndocument is the same as the property the subject of the28\nproceeding, regard must be had to the following —29\n(a) the description of the property in the document;30\n(b) any writing, printing or marks on the property, or on any31\npackage containing the property, as detailed in the32\ndocument;33\n\nEvidence Bill 2025\nPart 9 Judicial notice and facilitation of proof\nDivision 8 Proof of particular matters in criminal proceedings\ns. 366\npage 284\n(c) the source from which the document was obtained;1\n(d) how the document was produced;2\n(e) the circumstances in which the document came into the3\ncustody of the person producing it;4\n(f) any other relevant circumstances.5\n(5) This section applies if evidence is adduced that the stealing6\noccurred in or from a building, structure or place referred to in7\nsubsection (2)(b), whether or not the building, structure or place8\nis specified in the charge for the offence.9\nCompare:10\nEvidence Act 1906 s. 41A11\n366. Proof of stealing money12\nIn a criminal proceeding for an offence of stealing money —13\n(a) an entry in a book of account kept or made by the14\naccused, or under the accused’s supervision, that15\npurports to be an entry of the receipt of any money is16\nevidence that the money was received by the accused;17\nand18\n(b) it is not necessary to prove that the accused stole a19\nspecific sum of money if, on an examination of any20\nbooks of account or entries in a book of account kept or21\nmade by the accused, or under the accused’s22\nsupervision, or any other evidence —23\n(i) there is proof of a general deficiency; and24\n(ii) the trier of fact is satisfied that the accused stole25\nthe deficient money or any part of it.26\nCompare:27\nEvidence Act 1906 s. 4428\n\nEvidence Bill 2025\nMiscellaneous Part 10\ns. 367\npage 285\nPart 10 — Miscellaneous1\n367. Inferences2\nIf a question arises about the application of a provision of this3\nAct in relation to a document or thing, the court may —4\n(a) examine the document or thing; and5\n(b) draw any reasonable inferences from it as well as from6\nother matters from which inferences may properly be7\ndrawn.8\nCompare:9\nEvidence Act 1995 (Commonwealth) s. 18310\n368. Accused may admit matters and give consents11\n(1) In or before a criminal proceeding, an accused may —12\n(a) admit any matter of fact that a party to a civil13\nproceeding may admit; and14\n(b) give any consent that a party to a civil proceeding may15\ngive.16\n(2) An accused’s admission or consent is not effective for the17\npurposes of subsection (1) unless —18\n(a) the accused has been advised to make the admission or19\ngive the consent by the accused’s legal counsel; or20\n(b) the court is satisfied that the accused understands the21\nconsequences of making the admission or giving the22\nconsent.23\nCompare:24\nEvidence Act 1995 (Commonwealth) s. 18425\n369. Impounding documents26\n(1) A court may direct that a document that has been tendered or27\nproduced before the court (whether or not it is admitted in28\nevidence) must be impounded and kept in the custody of an29\n\nEvidence Bill 2025\nPart 10 Miscellaneous\ns. 370\npage 286\nofficer of the court or of another person for the period, and1\nsubject to the conditions, that the court thinks fit.2\n(2) This section extends to a proceeding before a person acting3\njudicially.4\nCompare:5\nEvidence Act 1995 (Commonwealth) s. 1886\n370. Preliminary questions7\n(1) In this section, a preliminary question is a question as to8\nwhether a particular fact exists, being a question of fact that9\nmust be decided by the court before it makes a determination as10\nto whether —11\n(a) evidence should be admitted (whether in the exercise of12\na discretion or not); or13\n(b) evidence can be used against a person; or14\n(c) a witness is competent or compellable.15\n(2) If there is a jury, each of the following preliminary questions16\nmust be heard and determined in the jury’s absence —17\n(a) a question of whether particular evidence is evidence of18\nan admission, or evidence to which section 204 applies;19\n(b) a question of whether evidence of an admission, or20\nevidence to which section 204 applies, should be21\nadmitted.22\n(3) In the hearing of a preliminary question about whether an23\naccused’s admission should be admitted into evidence (whether24\nin the exercise of a discretion or not) in a criminal proceeding,25\nthe issue of the admission’s truth or untruth must be disregarded26\nunless the issue is introduced by the accused.27\n(4) If there is a jury, the jury must not be present at a hearing to28\ndecide any other preliminary question unless the court otherwise29\norders.30\n\nEvidence Bill 2025\nMiscellaneous Part 10\ns. 370\npage 287\n(5) Without limiting the matters that the court may take into1\naccount in deciding whether to make that order, it must take into2\naccount —3\n(a) whether the evidence to be adduced in the course of that4\nhearing is likely to be prejudicial to the accused; and5\n(b) whether the evidence concerned will be adduced in the6\ncourse of the hearing to decide the preliminary question;7\nand8\n(c) whether the evidence to be adduced in the course of that9\nhearing would be admitted if adduced at another stage of10\nthe hearing (other than in another hearing to decide a11\npreliminary question or, in a criminal proceeding, a12\nhearing in relation to sentencing).13\n(6) Section 186 applies to a hearing to decide a preliminary14\nquestion, despite section 186(8).15\n(7) In the application of Part 3, 4 or 5 to a hearing to determine a16\npreliminary question, the facts in issue are taken to include the17\nquestion of fact to which the hearing relates.18\n(8) If a jury in a proceeding was not present at a hearing to19\ndetermine a preliminary question, evidence must not be adduced20\nin the proceeding of evidence given by a witness at the hearing21\nunless —22\n(a) it is inconsistent with other evidence given by the23\nwitness in the proceeding; or24\n(b) the witness has died.25\n(9) If, after a hearing under this section, a document or thing is26\nruled admissible as evidence, it is not necessary for the party27\nproposing to adduce the evidence to tender the evidence again.28\nCompare:29\nEvidence Act 1995 (Commonwealth) s. 18930\n\nEvidence Bill 2025\nPart 10 Miscellaneous\ns. 371\npage 288\n371. Waiver of rules of evidence1\n(1) A court may, if the parties consent, by order dispense with the2\napplication of any of the following in relation to particular3\nevidence or generally —4\n(a) the provisions of Part 2 Division 1 Subdivision 3, 4 or 5;5\n(b) the provisions of Part 2 Division 2 or 3;6\n(c) the provisions of Part 3 Divisions 2 to 8.7\n(2) In a criminal proceeding, an accused’s consent is not effective8\nfor the purposes of subsection (1) unless —9\n(a) the accused has been advised to do so by the accused’s10\nlegal counsel; or11\n(b) the court is satisfied that the accused understands the12\nconsequences of giving the consent.13\n(3) In a civil proceeding, the court may order that any of the14\nprovisions mentioned in subsection (1) do not apply in relation15\nto evidence if —16\n(a) the matter to which the evidence relates is not genuinely17\nin dispute; or18\n(b) the application of those provisions would cause or19\ninvolve unnecessary expense or delay.20\n(4) Without limiting the matters that the court may take into21\naccount in deciding whether to exercise the power conferred by22\nsubsection (3), it must take into account —23\n(a) the importance of the evidence in the proceeding; and24\n(b) the nature of the cause of action or defence and the25\nnature of the subject matter of the proceeding; and26\n(c) the probative value of the evidence; and27\n(d) the powers of the court (if any) to adjourn the hearing, to28\nmake another order or to give a direction in relation to29\nthe evidence.30","sortOrder":26},{"sectionNumber":"retrieval-0028","sectionType":"document_chunk","heading":"Document excerpt 28","content":"Evidence Bill 2025\nMiscellaneous Part 10\ns. 372\npage 289\n(5) This section does not permit a court to dispense with the1\napplication of section 56 or 57.2\nCompare:3\nEvidence Act 1995 (Commonwealth) s. 1904\n372. Agreements as to facts5\n(1) In this section —6\nagreed fact means a fact that the parties to a proceeding have7\nagreed is not, for the purposes of the proceeding, to be disputed.8\n(2) In a proceeding —9\n(a) evidence is not required to prove the existence of an10\nagreed fact unless the court gives leave; and11\n(b) evidence must not be adduced to contradict or qualify an12\nagreed fact unless the court gives leave.13\n(3) Subsection (2) does not apply unless the agreed fact —14\n(a) is stated in an agreement in writing signed by the parties15\nor by legal counsels or prosecutors representing the16\nparties and adduced in evidence in the proceeding; or17\n(b) with the leave of the court, is stated by a party before the18\ncourt with the agreement of all other parties.19\nCompare:20\nEvidence Act 1995 (Commonwealth) s. 19121\n373. Leave, permission or direction may be subject to conditions22\n(1) If, because of this Act, a court may give any leave, permission23\nor direction, the leave, permission or direction may be given24\nsubject to the conditions that the court thinks fit.25\n(2) Without limiting the matters that the court may take into26\naccount in deciding whether to give the leave, permission or27\ndirection, the court must take into account —28\n(a) the extent to which to do so would be likely to add29\nunduly to, or to shorten, the length of the hearing; and30\n\nEvidence Bill 2025\nPart 10 Miscellaneous\ns. 374\npage 290\n(b) the extent to which to do so would be unfair to a party or1\nto a witness; and2\n(c) the importance of the evidence in relation to which the3\nleave, permission or direction is sought; and4\n(d) the nature of the proceeding; and5\n(e) the power (if any) of the court to adjourn the hearing or6\nto make another order or to give a direction in relation to7\nthe evidence.8\nCompare:9\nEvidence Act 1995 (Commonwealth) s. 19210\n374. Advance rulings and findings11\nIf a question arises in any proceeding about any of the12\nfollowing, the court may, if it considers it appropriate to do so,13\ngive a ruling or make a finding in relation to the question before14\nthe evidence concerned is adduced in the proceeding —15\n(a) the admissibility or use of evidence proposed to be16\nadduced;17\n(b) the operation of a provision of this Act or another law in18\nrelation to evidence proposed to be adduced;19\n(c) the giving of any leave, permission or direction that the20\ncourt may give under this Act.21\nCompare:22\nEvidence Act 1995 (Commonwealth) s. 192A23\n375. Additional powers of court in relation to discovery and24\ndisclosure25\n(1) The powers of a court in relation to discovery and disclosure26\nextend to enabling the court to make any orders the court thinks27\nfit to ensure that the parties to a proceeding can adequately, and28\nin an appropriate matter, inspect documents, including orders29\nabout any of the following —30\n(a) methods of inspection;31\n\nEvidence Bill 2025\nMiscellaneous Part 10\ns. 376\npage 291\n(b) adjournments;1\n(c) costs.2\n(2) A reference in this section to the powers of a court in relation to3\ndiscovery and disclosure is a reference to the powers of a court4\nin relation to —5\n(a) the discovery or inspection of documents; and6\n(b) ordering disclosure and exchange of evidence, intended7\nevidence, documents and reports.8\n(3) The power of the court to make an order for costs under9\nsubsection (1) is subject to the Criminal Procedure Act 200410\nsection 123.11\nCompare:12\nEvidence Act 1995 (Commonwealth) s. 193(1)13\n376. Additional power to make rules of court14\n(1) The power of a person or body to make rules of court extends to15\nmaking rules, not inconsistent with this Act or the regulations,16\nprescribing matters —17\n(a) required or permitted by this Act to be prescribed; or18\n(b) necessary or convenient to be prescribed for carrying out19\nor giving effect to the purposes of this Act; or20\n(c) necessary or convenient to be prescribed for giving21\neffect to the purposes of the Courts and Tribunals22\n(Electronic Processes Facilitation) Act 2013 Part 2 (as23\napplied by section 16 of this Act).24\n(2) Without limiting subsection (1), rules made under that25\nsubsection may provide for any of the following —26\n(a) the discovery, exchange, inspection or disclosure of27\nintended evidence, documents and reports of persons28\nintended to be called by a party to give evidence in a29\nproceeding;30\n\nEvidence Bill 2025\nPart 10 Miscellaneous\ns. 377\npage 292\n(b) the exclusion of evidence, or its admission subject to1\nspecified conditions, if the rules are not complied with.2\n(3) The Courts and Tribunals (Electronic Processes Facilitation)3\nAct 2013 section 20(3) and (4) apply as if the power conferred4\nby subsection (1)(c) of this section were a power conferred by5\nsection 20(1) or (2) of that Act.6\nCompare:7\nEvidence Act 1906 s. 1338\nEvidence Act 1995 (Commonwealth) s. 193(2) to (4)9\n377. Witness who fails to attend proceeding10\n(1) If a witness fails to appear when called in any proceeding and it11\nis proved that the witness was duly bound by recognisance or12\nserved with a subpoena, summons or order to attend as a13\nwitness in the proceeding, the court may —14\n(a) order the witness to show cause why execution of the15\nrecognisance or an attachment for disobedience to the16\nsubpoena, summons or order should not be issued17\nagainst the witness; or18\n(b) if it is proved that the non-appearance is without just19\ncause or reasonable excuse, and that the witness will20\nprobably be able to give relevant evidence in the21\nproceeding — issue a warrant to bring the witness22\nbefore the court to give evidence at the proceeding.23\n(2) Matters may be proved under this section orally or by affidavit.24\n(3) An order to show cause under subsection (1)(a) may —25\n(a) be made returnable before the court then sitting or at26\nsome future sitting; or27\n(b) in respect of the non-appearance of a witness at a circuit28\ncourt (as defined in the Supreme Court Act 193529\nsection 48) or on the trial of a case pending in the30\nSupreme Court, be made returnable in the Supreme31\nCourt.32\n\nEvidence Bill 2025\nMiscellaneous Part 10\ns. 378\npage 293\n(4) On return of the order to show cause, the court may deal with1\nthe case in the same way as the Supreme Court would deal with2\nan order to similar effect made by the Supreme Court.3\nCompare:4\nEvidence Act 1906 s. 16 and 175\n378. Payments to witnesses and others for eligible service6\n(1) In this section —7\neligible service has the meaning given in subsection (2);8\ninquest has the meaning given in the Coroners Act 19969\nsection 3;10\nliable person, in respect of a payment for eligible service,11\nmeans —12\n(a) if the eligible service is in a criminal proceeding and the13\nprosecution was commenced by or on behalf of a local14\ngovernment or a statutory body — the local government15\nor statutory body; or16\n(b) in any other case — the State.17\n(2) A person does eligible service if the person is, or attends at any18\nplace in order to be, any of the following —19\n(a) a witness who is called by the prosecutor in a criminal20\nproceeding;21\n(b) a witness who is called by the accused in a criminal22\nproceeding and who is a child or a special witness;23\n(c) a witness in an inquest;24\n(d) an interpreter in a criminal proceeding or an inquest;25\n(e) a person approved under section 231 to provide a26\nwitness with support in a proceeding;27\n(f) a person appointed under section 233 to act as a28\ncommunicator in a proceeding;29\n\nEvidence Bill 2025\nPart 10 Miscellaneous\ns. 378\npage 294\n(g) a person who participates in a program the purpose of1\nwhich is to prepare the following persons to give2\nevidence in a criminal proceeding or an inquest —3\n(i) a child who may be a witness;4\n(ii) a person who is or may be declared to be a5\nspecial witness;6\n(h) a person who accompanies and assists another person7\ndescribed in paragraph (g) in order to enable the other8\nperson to attend the program described in that9\nparagraph;10\n(i) a person who accompanies and assists another person to11\nattend and be a witness in a criminal proceeding or an12\ninquest, if the other person is —13\n(i) a child who may be a witness;14\n(ii) a person who is or may be declared to be a15\nspecial witness.16\n(3) A person who does eligible service is entitled to be paid by the17\nliable person any allowances and expenses for doing that18\neligible service provided for by the regulations.19\n(4) If a person does eligible service during any period in which the20\nperson is employed under a contract of service, the employer21\nunder the contract of service must pay to the person the earnings22\nthat the person could reasonably expect to have been paid under23\nthat contract during that period.24\nPenalty for this subsection: a fine of $2 000.25\n(5) Subsection (4) applies even if doing the eligible service causes a26\nbreach of contract.27\n(6) An employer who, in accordance with subsection (4), pays a28\nperson for a period in which the person does eligible service, is29\nentitled to be paid by the liable person the fees provided for by30\nthe regulations for the eligible service.31\n\nEvidence Bill 2025\nMiscellaneous Part 10\ns. 379\npage 295\n(7) A person who does eligible service is entitled to be paid by the1\nliable person the fees provided for by the regulations for doing2\nthat eligible service if —3\n(a) subsection (4) does not apply to the person; or4\n(b) subsection (4) applies to the person but the employer5\nfails to pay the person in accordance with that6\nsubsection.7\n(8) The regulations may specify circumstances in which8\nsubsections (6) and (7) do not apply.9\nCompare:10\nEvidence Act 1906 s. 11911\n379. Recovery of amounts payable12\n(1) A claim to a liable person for payment under section 378 must13\nbe made and determined in accordance with the regulations.14\n(2) The regulations may require information in support of a claim15\nfor payment to be verified by statutory declaration.16\n(3) On the application of an accused who calls a witness in a17\ncriminal proceeding, the Minister may authorise the State to pay18\nall or some of the amounts that would be payable under19\nsection 378 if the witness were called by the prosecutor in the20\nproceeding.21\n(4) An amount paid under section 378, or this section, by the State22\nmust be charged to the Consolidated Account, which this23\nsubsection appropriates accordingly.24\nCompare:25\nEvidence Act 1906 s. 11926\n\nEvidence Bill 2025\nPart 10 Miscellaneous\ns. 380\npage 296\n380. Prohibited question not to be published1\n(1) A person must not, without the express permission of a court,2\npublish —3\n(a) any question that the court has disallowed under4\nsection 50; or5\n(b) any question that the court has disallowed because any6\nanswer that is likely to be given to the question would7\ncontravene the credibility rule; or8\n(c) any question in respect of which the court has refused to9\ngive leave under Part 3 Division 7.10\nPenalty for this subsection: a fine of $6 000.11\n(2) A person who contravenes subsection (1) —12\n(a) is taken to be in contempt of the court that disallowed13\nthe question or refused to give leave; and14\n(b) is punishable accordingly.15\n(3) If a person’s act constitutes both an offence under subsection (1)16\nand a contempt of court under subsection (2), the person is not17\nliable to be punished twice.18\nCompare:19\nEvidence Act 1906 s. 2720\nEvidence Act 1995 (Commonwealth) s. 19521\n381. Identity of certain witnesses not to be published22\n(1) This section applies —23\n(a) in relation to a criminal proceeding — if a person is24\ncharged with a sexual offence; or25\n(b) in relation to a civil proceeding — if it is alleged that a26\nwitness is the victim of sexual abuse or sexual27\nharassment.28\n\nEvidence Bill 2025\nMiscellaneous Part 10\ns. 381\npage 297\n(2) For the purposes of subsection (1)(a), a person is charged with a1\nsexual offence if —2\n(a) the person is charged in a prosecution notice or an3\nindictment with committing a sexual offence; or4\n(b) the person appears before a court charged with a sexual5\noffence; or6\n(c) a court before which the person is appearing commits7\nthe person for trial for a charge alleging a sexual8\noffence.9\n(3) The following information must not be published, except with10\nthe express permission of a court —11\n(a) information that is likely to enable members of the12\npublic to identify an alleged victim of a sexual offence,13\nsexual abuse or sexual harassment;14\n(b) if an alleged victim of a sexual offence, sexual abuse or15\nsexual harassment attends school — information that is16\nlikely to enable members of the public to identify the17\nschool at which the alleged victim attends.18\n(4) If information is published in contravention of subsection (3),19\neach of the following persons commits an offence —20\n(a) in the case of information published in a newspaper or21\nperiodical publication — any proprietor, editor or22\npublisher of the newspaper or periodical publication at23\nthe time the information was published;24\n(b) in the case of information published in a program that is25\nbroadcast —26\n(i) the person who transmitted or provided the27\nprogram; and28\n(ii) any person having functions in relation to the29\nprogram that were comparable to the functions of30\nan editor of a newspaper at the time the31\ninformation was published;32\n\nEvidence Bill 2025\nPart 10 Miscellaneous\ns. 382\npage 298\n(c) in the case of information published in a manner not1\nmentioned in paragraph (a) or (b) — the person who2\npublished the information.3\nPenalty for this subsection:4\n(a) for an individual, a fine of $5 000;5\n(b) for a body corporate, a fine of $25 000.6\n(5) A court has jurisdiction to give permission under subsection (3)7\nif the court is hearing or has jurisdiction to hear the proceeding8\nconcerned.9\n(6) The giving of permission under subsection (3) does not excuse a10\ncontravention of the subsection that occurred before permission11\nwas given.12\n(7) It is a defence to a charge of an offence under subsection (4) to13\nprove that —14\n(a) the person to whom the published matter relates gave15\nwritten authorisation to the publication of the matter16\nbefore it was published; and17\n(b) at the time of giving that authorisation, the person who18\ngave it —19\n(i) had reached 18 years of age; and20\n(ii) was not, because of a disability, incapable of21\nmaking reasonable judgments in respect of the22\npublication of the matter concerned.23\nCompare:24\nEvidence Act 1906 s. 36C25\n382. Customs prosecutions26\nThis Act, as it applies to a Customs prosecution (as defined in27\nthe Customs Act 1901 (Commonwealth) section 244), does not28\naffect the operation of the Customs Act 1901 (Commonwealth).29\n\nEvidence Bill 2025\nMiscellaneous Part 10\ns. 383\npage 299\n383. Regulations1\n(1) The Governor may make regulations prescribing all matters that2\nare required or permitted by this Act to be prescribed, or are3\nnecessary or convenient to be prescribed for giving effect to the4\npurposes of —5\n(a) this Act; or6\n(b) the Courts and Tribunals (Electronic Processes7\nFacilitation) Act 2013 Part 2 (as it applies to this Act).8\n(2) Without limiting subsection (1), the regulations may provide for9\nthe fees and expenses payable in relation to the taking of10\nevidence or receiving of a submission by video link or audio11\nlink and the person liable for payment.12\n(3) The regulations may provide that a contravention of a regulation13\nis an offence and prescribe, for an offence against the14\nregulations, a penalty of imprisonment for a term not exceeding15\n12 months and a fine not exceeding $100 000.16\n(4) The Courts and Tribunals (Electronic Processes Facilitation)17\nAct 2013 section 20(3) and (4) apply as if the power conferred18\nby subsection (1)(b) of this section were a power conferred by19\nsection 20(1) or (2) of that Act.20\nCompare:21\nEvidence Act 1906 s. 131 and 13322\n384. Review of Act23\n(1) The Minister must review the operation and effectiveness of this24\nAct, and prepare a report based on the review, as soon as25\npracticable after the 5th anniversary of the day on which this26\nsection comes into operation.27\n(2) The Minister must cause the report to be laid before each House28\nof Parliament as soon as practicable after it is prepared, but not29\nlater than 12 months after the 5th anniversary.30\n\nEvidence Bill 2025\nPart 10 Miscellaneous\ns. 385\npage 300\n385. Review of provisions relating to recorded statements1\n(1) In this section —2\nrecorded statement provisions means —3\n(a) Part 7 Division 4; and4\n(b) the Criminal Investigation Act 2006 Part 11A.5\n(2) The Minister must review the operation and effectiveness of the6\nrecorded statement provisions, and prepare a report based on the7\nreview, as soon as practicable after the 2nd anniversary of the8\nday on which Part 7 Division 4 comes into operation.9\n(3) The Minister must cause the report to be laid before each House10\nof Parliament as soon as practicable after it is prepared, but not11\nlater than 12 months after the 2nd anniversary.12","sortOrder":27},{"sectionNumber":"retrieval-0029","sectionType":"document_chunk","heading":"Document excerpt 29","content":"Evidence Bill 2025\nRepeal, savings and transitional provisions Part 11\nRepeals Division 1\ns. 386\npage 301\nPart 11 — Repeal, savings and transitional provisions1\nDivision 1 — Repeals2\n386. Evidence Act 1906 repealed3\nThe Evidence Act 1906 is repealed.4\n387. Regulations under Evidence Act 1906 repealed5\nThe following regulations are repealed —6\n(a) the Evidence (Admissible Reproductions)7\nRegulations 2003;8\n(b) the Evidence (Examination of witnesses outside the9\nState) Regulations 1991;10\n(c) the Evidence (Fees, Allowances and Expenses)11\nRegulations 2008;12\n(d) the Evidence (Prescribed Persons) Regulations 2005;13\n(e) the Evidence (Video and Audio Links Fees and14\nExpenses) Regulations 1999;15\n(f) the Evidence (Visual Recording of Interviews with16\nChildren and Persons with Mental Impairment)17\nRegulations 2004.18\nDivision 2 — Savings and transitional provisions19\n388. Terms used20\nIn this Division —21\nformer Act means the Evidence Act 1906;22\nformer Act recording means —23\n(a) a visual recording (as defined in section 228(1)) or an24\naudio recording made by a police officer of this State25\nbefore the repeal day of a relevant statement (as defined26\nin section 106H(3) of the former Act), being a relevant27\nstatement that was admitted or could have been admitted28\n\nEvidence Bill 2025\nPart 11 Repeal, savings and transitional provisions\nDivision 2 Savings and transitional provisions\ns. 389\npage 302\ninto evidence in a proceeding under section 106H of the1\nformer Act (whether or not it has been admitted into2\nevidence under that section); or3\n(b) a visual recording (as defined in section 228(1)) of an4\ninterview conducted before the repeal day, being a5\nrecording that was admitted or could have been admitted6\nas evidence in a proceeding under section 106HB of the7\nformer Act (whether or not it has been admitted as8\nevidence under that section); or9\n(c) a visual recording of evidence (as defined in10\nsection 106A of the former Act) made before the repeal11\nday;12\nrepeal day means the day on which section 386 comes into13\noperation.14\n389. Application of Act to proceedings15\n(1) A provision of this Act applies to a proceeding commenced on16\nor after the day on which the provision comes into operation.17\n(2) If a proceeding commenced before the day on which a provision18\nof this Act comes into operation, the provision applies to that19\npart of the proceeding that takes place on or after the day on20\nwhich the provision comes into operation, other than a hearing21\nin the proceeding that commenced before the day on which the22\nprovision comes into operation.23\n(3) The former Act continues to apply to a hearing in a proceeding24\nif the hearing commenced before the repeal day and —25\n(a) continued on or after the repeal day; or26\n(b) was adjourned until the repeal day or a day after the27\nrepeal day.28\n(4) This section is subject to the other provisions of this Division.29\n\nEvidence Bill 2025\nRepeal, savings and transitional provisions Part 11\nSavings and transitional provisions Division 2\ns. 390\npage 303\n390. Documents served or given1\n(1) A reference in a provision of this Act to a document served or2\ngiven to a person includes a reference to a document served or3\ngiven before the day on which the provision comes into4\noperation.5\n(2) A document served or given before the day on which a6\nprovision of this Act comes into operation is taken to have been7\nserved or given in accordance with the requirements (if any) of8\nthat provision if it was served or given in accordance with the9\nrequirements (if any) —10\n(a) that applied under the former Act to the service or11\ngiving of the document in the circumstances provided12\nfor by the provision of this Act; or13\n(b) that would have applied if the provision of this Act had14\nalready come into operation.15\n(3) If a provision of this Act specifies a time limit for doing a thing16\nthat starts when a document is served or given, and the17\ndocument was served or given before the day on which the18\nprovision comes into operation, the time limit is taken to end on19\nthe later of the following days —20\n(a) the day that is 21 days after the day on which the21\nprovision comes into operation;22\n(b) the day on which the time limit would have ended, but23\nfor this section.24\n391. Documents and other things examined, copied or viewed25\nIf a provision of this Act requires a party to have been given a26\nreasonable opportunity to examine, copy or view any document27\nor other thing, that requirement is taken to have been complied28\nwith if that reasonable opportunity was given before the day on29\nwhich the provision comes into operation in accordance with30\n\nEvidence Bill 2025\nPart 11 Repeal, savings and transitional provisions\nDivision 2 Savings and transitional provisions\ns. 392\npage 304\nany requirements of a written law that were applicable at the1\ntime that it was given.2\n392. Things done between parties3\n(1) A reference in section 113 or 115 to a notice is taken to include4\na reference to a notice of the kind referred to in that section that5\nwas given before the day on which the section comes into6\noperation.7\n(2) A reference in section 324 or 355(2) to a request is taken to8\ninclude a reference to a request of the kind referred to in that9\nsection that was made before the day on which the section10\ncomes into operation.11\n(3) A reference in section 372(3) to an agreement is taken to12\ninclude a reference to an agreement of the kind referred to in13\nthat section that was made before the day on which the section14\ncomes into operation.15\n393. Identification evidence16\n(1) Section 134 does not apply to identification evidence that is an17\nassertion or a report of an assertion that was made before the18\nday on which the section comes into operation.19\n(2) This section does not affect the application of Part 5 to20\nidentification evidence.21\n394. Privileges22\n(1) Part 4 Division 1 applies to —23\n(a) a confidential communication made before, on or after24\nthe day on which that Division comes into operation;25\nand26\n(b) a confidential document prepared before, on or after the27\nday on which that Division comes into operation.28\n(2) Part 4 Division 2 applies to a protected confidence made before,29\non or after the day on which that Division comes into operation.30\n\nEvidence Bill 2025\nRepeal, savings and transitional provisions Part 11\nSavings and transitional provisions Division 2\ns. 395\npage 305\n(3) Part 4 Division 3 applies to a protected communication made1\nbefore, on or after the day on which that Division comes into2\noperation.3\n(4) Part 4 Division 4 applies to information given to a journalist4\nbefore, on or after the day on which that Division comes into5\noperation.6\n395. Cautioning of persons7\n(1) Section 205 does not apply to evidence of a statement made or8\nan act done by a person before the day on which that section9\ncomes into operation.10\n(2) This section does not prevent a court from deciding that11\nevidence referred to in subsection (1) was obtained improperly12\nfor the purposes of section 204.13\n396. Out-of-court representations14\nIn Part 7, a reference to an out-of-court representation is taken15\nto include a reference to an out-of-court representation made16\nbefore the day on which section 235 comes into operation.17\n397. Recorded interviews18\n(1) In Part 7, a reference to a recorded interview is taken to include19\na reference to a recorded interview made before the day on20\nwhich section 251 comes into operation.21\n(2) For the purposes of Part 7 Division 5, if a recorded interview22\nwas made before the repeal day —23\n(a) the interview in the recorded interview is taken to have24\nbeen conducted by a person authorised to conduct25\nrecorded interviews under the interview admissibility26\nregulations if it was conducted by a person of a27\nprescribed class under section 106HA(1)(a) or (1a)(a) of28\nthe former Act; and29\n\nEvidence Bill 2025\nPart 11 Repeal, savings and transitional provisions\nDivision 2 Savings and transitional provisions\ns. 398\npage 306\n(b) the recorded interview is taken to meet any other1\nrequirements of the interview admissibility regulations2\nto the extent required by those regulations if, at the time3\nof recording, the manner in which the interview was4\nconducted and recorded met the prescribed requirements5\nto the prescribed extent under section 106HA(1)(b)6\nor (1a)(b) of the former Act.7\n(3) For the purposes of section 260, a reference to recorded8\ninterviews that are admissible under Part 7 Division 5 or made9\nfor use as evidence under that Division includes a reference to10\nrecorded interviews made before the repeal day that were11\nadmissible under section 106HB of the former Act or made for12\nuse as evidence under that section.13\n(4) Accordingly, the power to make regulations for the purposes of14\nsection 260 extends to recorded interviews referred to in15\nsubsection (3).16\n398. Visual recordings of evidence17\n(1) A reference in section 268(1) or 269(1) to a recording of18\nevidence given by a witness at a special hearing is taken to19\ninclude a reference to a visual recording of evidence made in a20\nspecial hearing held pursuant to an order under section 106K or21\n106RA of the former Act.22\n(2) A reference in section 268(2) to a pre-recording order made on23\nthe ground that the witness is likely to be out of the State at the24\ntime of the proceeding is taken to include a reference to an order25\nmade under section 106RA(1) of the former Act on the ground26\nin section 106RA(4)(b) of the former Act.27\n(3) A reference in section 280(2) to a recording of evidence given28\nby a witness using a video link separation procedure is taken to29\n\nEvidence Bill 2025\nRepeal, savings and transitional provisions Part 11\nSavings and transitional provisions Division 2\ns. 399\npage 307\ninclude a reference to a visual recording of evidence made1\nunder section 106N(3a) of the former Act.2\n(4) A reference in section 281(3) to a recording of evidence given3\nby a witness while using a screening procedure is taken to4\ninclude a reference to a visual recording of evidence made5\nunder section 106N(5) of the former Act.6\n399. Restrictions on use of audio evidence under former Act7\n(1) A person must not make a copy of, or otherwise reproduce, any8\naudio of a proceeding, or any part of a proceeding, heard by9\nmeans of an audio link under section 106K(3)(a)(ii) of the10\nformer Act.11\nPenalty for this subsection: imprisonment for 2 years or a fine of12\n$24 000.13\n(2) A person must not play, supply or offer to supply any copy of,14\nor reproduction of, any audio of a proceeding, or any part of a15\nproceeding, heard by means of an audio link under16\nsection 106K(3)(a)(ii) of the former Act.17\nPenalty for this subsection: imprisonment for 2 years or a fine of18\n$24 000.19\n(3) A person must not publish any audio of a proceeding, or any20\npart of a proceeding, heard by means of an audio link under21\nsection 106K(3)(a)(ii) of the former Act.22\nPenalty for this subsection: imprisonment for 2 years or a fine of23\n$100 000.24\n400. Restrictions on use of former Act recordings25\n(1) In this section —26\nalter, a recording, has a meaning affected by section 228(1);27\ndestroy, a recording, has a meaning affected by section 228(1).28\n(2) A person must not, without authority —29\n(a) be in possession of a former Act recording; or30\n\nEvidence Bill 2025\nPart 11 Repeal, savings and transitional provisions\nDivision 2 Savings and transitional provisions\ns. 400\npage 308\n(b) supply or offer to supply a former Act recording to any1\nperson.2\nPenalty for this subsection: imprisonment for 2 years or a fine of3\n$24 000.4\n(3) A person who is in possession of a former Act recording does5\nnot commit an offence against subsection (2) by virtue of being6\nin possession of the recording if —7\n(a) the person acquired that possession before this section8\ncomes into operation; and9\n(b) the possession was lawful at the time the person10\nacquired it.11\n(4) A person must not, without authority, alter or destroy or permit12\nanother person to alter or destroy a former Act recording that is13\nan original recording.14\nPenalty for this subsection: imprisonment for 2 years or a fine of15\n$24 000.16\n(5) A person must not alter a copy of a former Act recording unless17\nthe person has authority to be in possession of the recording.18\nPenalty for this subsection: imprisonment for 2 years or a fine of19\n$24 000.20\n(6) A person must not, without authority, copy or permit another21\nperson to copy a former Act recording.22\nPenalty for this subsection: imprisonment for 2 years or a fine of23\n$24 000.24\n(7) A person must not, without authority, play a former Act25\nrecording.26\nPenalty for this subsection: imprisonment for 2 years or a fine of27\n$24 000.28\n\nEvidence Bill 2025\nRepeal, savings and transitional provisions Part 11\nSavings and transitional provisions Division 2\ns. 401\npage 309\n(8) A person has authority to do a thing for the purposes of this1\nsection only if the person —2\n(a) would have authority to do the thing concerned under3\nPart 7 Division 10 if the former Act recording were a4\nprotected recording (as defined in section 299); or5\n(b) is acting as authorised by regulations made for the6\npurposes of this paragraph.7\n(9) This section applies even if a proceeding in connection with8\nwhich the former Act recording was made or in which the9\nformer Act recording was admitted as evidence, or a hearing of10\nthe proceeding, commenced, concluded or was terminated11\nbefore the repeal day.12\n401. Publication of former Act recordings prohibited13\n(1) A person must not publish a former Act recording except in14\naccordance with the approval of the Supreme Court.15\nPenalty for this subsection: imprisonment for 2 years or a fine of16\n$100 000.17\n(2) The Supreme Court may approve the publication of a former18\nAct recording only if satisfied that exceptional circumstances19\njustify approval being given.20\n(3) This section applies even if a proceeding in connection with21\nwhich the former Act recording was made or in which the22\nformer Act recording was admitted as evidence, or a hearing of23\nthe proceeding, commenced, concluded or was terminated24\nbefore the repeal day.25\n402. Playing or tendering altered recording in proceeding26\nIn section 307, a reference to a protected recording is taken to27\ninclude a reference to a former Act recording.28\n\nEvidence Bill 2025\nPart 11 Repeal, savings and transitional provisions\nDivision 2 Savings and transitional provisions\ns. 403\npage 310\n403. Power to give directions about former Act recordings1\nIn section 308, a reference to a protected recording is taken to2\ninclude a reference to a former Act recording.3\n404. Use of Justice documents4\nSection 310 extends to a Justice document prepared before the5\nday on which the section comes into operation.6\n405. Facilitation of proof of documents7\nPart 9 Divisions 3 and 4 extend to a document produced,8\nattested, verified, signed, executed, acknowledged, printed,9\npublished, sealed or certified before the day or days on which10\nthose Divisions come into operation.11\n406. Admission of police affidavits12\n(1) An affidavit made before the day on which section 358 comes13\ninto operation that was substantially in the form of the Sixth14\nSchedule to the former Act is taken to have been made in the15\nform prescribed by the regulations for the purposes of16\nsection 358.17\n(2) Accordingly, section 358 applies to the use of the affidavit in a18\nproceeding to which this Act applies.19\n407. DNA certificates given before commencement20\nSections 360 and 361 apply to a certificate given by a forensic21\nscientist under section 50B of the former Act before the day on22\nwhich section 360 comes into operation in the same way as they23\napply to a forensic biology certificate referred to in section 360.24\n408. Restrictions on publishing names of complainants25\n(1) Section 381(3) applies to the publication of information in26\nrelation to a criminal proceeding on or after the day on which27\nthat section comes into operation, including if a person is28\n\nEvidence Bill 2025\nRepeal, savings and transitional provisions Part 11\nSavings and transitional provisions Division 2\ns. 409\npage 311\ncharged with a sexual offence before the day on which that1\nsection comes into operation.2\n(2) Section 381(3) does not apply to the publication of information3\nin relation to a civil proceeding that commenced before the day4\non which that section comes into operation.5\n409. Continuation of orders, directions, leave and other things6\ndone under former Act7\n(1) Any order given, direction made, leave granted or other thing8\ndone under the former Act by a court, judge or person acting9\njudicially (as that term is defined in section 3 of the former Act)10\nthat had effect immediately before the repeal day continues to11\nhave effect despite the repeal of the former Act.12\n(2) The former Act continues to apply in respect of the order,13\ndirection, leave or other thing as if it were still in force.14\n(3) In particular —15\n(a) section 11A(2) and (3) of the former Act continue to16\napply to any order made under section 11A(1) of the17\nformer Act; and18\n(b) section 27(2) of the former Act continues to apply to any19\nquestion or inquiry that is the subject of an order under20\nsection 27(1)(a) or (b) of the former Act.21\n410. Saving of self-incrimination certificates given under former22\nAct23\nA certificate given under section 11 or 12 of the former Act24\ncontinues to have the same effect as it would have if the former25\nAct had not been repealed.26\n411. Construction of references27\n(1) A reference in any other written law or in any instrument to the28\nformer Act is to be read, from the repeal day, as a reference to29\nthis Act.30","sortOrder":28},{"sectionNumber":"retrieval-0030","sectionType":"document_chunk","heading":"Document excerpt 30","content":"Evidence Bill 2025\nPart 11 Repeal, savings and transitional provisions\nDivision 2 Savings and transitional provisions\ns. 412\npage 312\n(2) A reference in any other written law or in any instrument to a1\nprovision of the former Act is to be read, from the repeal day, as2\na reference to the provision of this Act that, having regard to the3\nreference and context in which the reference occurs, most nearly4\ncorresponds to the provision of the former Act.5\n(3) This section does not apply in relation to a proceeding, a6\nhearing of a proceeding or other matter to which this Act does7\nnot apply.8\n412. Transitional regulations9\n(1) In this section —10\nspecified means specified or described in the regulations;11\ntransitional matter —12\n(a) means a matter or issue of a transitional nature that13\narises as a result of —14\n(i) the repeal of the former Act; or15\n(ii) an amendment made under Part 12; or16\n(iii) the enactment of this Act;17\nand18\n(b) includes a savings or application matter or issue.19\n(2) If there is not sufficient provision in this Division for dealing20\nwith a transitional matter, regulations may prescribe anything21\nrequired, necessary or convenient to be prescribed in relation to22\nthe matter.23\n(3) Without limiting subsection (2), regulations made for the24\npurposes of that subsection may provide that specified25\nprovisions of this Act —26\n(a) do not apply to, or in relation to, a specified matter or27\nthing; or28\n(b) apply with specified modifications to, or in relation to, a29\nspecified matter or thing.30\n\nEvidence Bill 2025\nRepeal, savings and transitional provisions Part 11\nSavings and transitional provisions Division 2\ns. 412\npage 313\n(4) If regulations made for the purposes of subsection (2) provide1\nthat a specified state of affairs is taken to have existed, or not to2\nhave existed, on and from a day that is earlier than the day on3\nwhich the regulations are published in accordance with the4\nInterpretation Act 1984 section 41(1)(a) but not earlier than the5\nday on which this section comes into operation, the regulations6\nhave effect according to their terms.7\n(5) If regulations made for the purposes of subsection (2) contain a8\nprovision of a kind described in subsection (4), the provision9\ndoes not operate so as to —10\n(a) affect, in a manner prejudicial to any person (other than11\nthe State or an authority of the State), the rights of that12\nperson existing before the day of publication of those13\nregulations; or14\n(b) impose liabilities on any person (other than the State or15\nan authority of the State) in respect of anything done or16\nomitted to be done before the day of publication of those17\nregulations.18\n\nEvidence Bill 2025\nPart 12 Consequential amendments to other Acts\nDivision 1 Aquatic Resources Management Act 2016 amended\ns. 413\npage 314\nPart 12 — Consequential amendments to other Acts1\nDivision 1 — Aquatic Resources Management Act 2016 amended2\n413. Act amended3\nThis Division amends the Aquatic Resources Management4\nAct 2016.5\n414. Section 240 amended6\nIn section 240(4) delete “Evidence Act 1906.” and insert:7\n8\nEvidence Act 2025.9\n10\nDivision 2 — Australia and New Zealand Banking Group11\nAct 1970 amended12\n415. Act amended13\nThis Division amends the Australia and New Zealand Banking14\nGroup Act 1970.15\n416. Section 10 deleted16\nDelete section 10.17\n417. Section 18 deleted18\nDelete section 18.19\n\nEvidence Bill 2025\nConsequential amendments to other Acts Part 12\nAustralia and New Zealand Banking Group Limited (NMRB)\nAct 1991 amended\nDivision 3\ns. 418\npage 315\nDivision 3 — Australia and New Zealand Banking Group Limited1\n(NMRB) Act 1991 amended2\n418. Act amended3\nThis Division amends the Australia and New Zealand Banking4\nGroup Limited (NMRB) Act 1991.5\n419. Section 10 amended6\nDelete section 10(2) and (3).7\n420. Section 18 amended8\nDelete section 18(2) and (3).9\n421. Section 19 amended10\nDelete section 19(2) and (3).11\nDivision 4 — Australia and New Zealand Banking Group Limited12\n(Town & Country) Act 1995 amended13\n422. Act amended14\nThis Division amends the Australia and New Zealand Banking15\nGroup Limited (Town & Country) Act 1995.16\n423. Section 11 amended17\nDelete section 11(2) and (3).18\nDivision 5 — Bank of Western Australia Act 1995 amended19\n424. Act amended20\nThis Division amends the Bank of Western Australia Act 1995.21\n425. Section 33 amended22\nDelete section 33(2) and (3).23\n\nEvidence Bill 2025\nPart 12 Consequential amendments to other Acts\nDivision 6 Child Care Services Act 2007 amended\ns. 426\npage 316\nDivision 6 — Child Care Services Act 2007 amended1\n426. Act amended2\nThis Division amends the Child Care Services Act 2007.3\n427. Section 44 amended4\nIn section 44 delete “Evidence Act 1906.” and insert:5\n6\nEvidence Act 2025.7\n8\nNote: The heading to amended section 44 is to read:9\nEvidence Act 2025 not affected10\n428. Section 46A inserted11\nAfter section 46 insert:12\n13\n46A. Interaction with protections in Evidence Act 202514\n(1) In this section —15\nchild care record has the meaning given in16\nsection 46(1);17\nprotected communication has the meaning given in the18\nEvidence Act 2025 section 165(1);19\nprotected disclosure provisions means the Evidence20\nAct 2025 Part 4 Division 3.21\n(2) If a child care record contains a protected22\ncommunication —23\n(a) a party to a criminal proceeding cannot require24\nthe production or disclosure of the protected25\ncommunication except with the leave of the26\ncourt in accordance with the protected27\ndisclosure provisions; and28\n\nEvidence Bill 2025\nConsequential amendments to other Acts Part 12\nChildren and Community Services Act 2004 amended Division 7\ns. 429\npage 317\n(b) section 46(3) and (4) do not apply to the1\nproduction of the child care record in the2\ncriminal proceeding.3\n(3) Section 46(5) to (8) apply to a child care record4\ncontaining a protected communication that is produced5\nin a criminal proceeding with the leave of the court6\nunder the protected disclosure provisions, or to enable7\nthe court to determine an application for leave under8\nthe protected disclosure provisions, as if the child care9\nrecord had been produced in response to a requirement10\nunder section 46(2).11\n(4) Section 46(5) to (8) apply to a document containing12\nany protected information (as defined in the Education13\nand Care Services National Law (Western Australia)14\nsection 273(3)) that is produced in a criminal15\nproceeding with the leave of the court under the16\nprotected disclosure provisions, or to enable the court17\nto determine an application for leave under the18\nprotected disclosure provisions, as if —19\n(a) the document were a child care record; and20\n(b) the document had been produced in response to21\na requirement under section 46(2).22\n23\nDivision 7 — Children and Community Services Act 200424\namended25\n429. Act amended26\nThis Division amends the Children and Community Services27\nAct 2004.28\n\nEvidence Bill 2025\nPart 12 Consequential amendments to other Acts\nDivision 7 Children and Community Services Act 2004 amended\ns. 430\npage 318\n430. Section 149 amended1\nDelete section 149(2) and insert:2\n3\n(2) Subsection (1) is subject to —4\n(a) any order made in respect of the child under the5\nChildren’s Court of Western Australia Act 19886\nsection 31; and7\n(b) the Evidence Act 2025 Part 7.8\n9\n431. Section 238A inserted10\nAfter section 238 insert:11\n12\n238A. Interaction with protections in Evidence Act 202513\n(1) In this section —14\ndepartmental record has the meaning given in15\nsection 238(1);16\nprotected communication has the meaning given in the17\nEvidence Act 2025 section 165(1);18\nprotected disclosure provisions means the Evidence19\nAct 2025 Part 4 Division 3.20\n(2) If a departmental record contains a protected21\ncommunication —22\n(a) a party to a criminal proceeding cannot require23\nthe production of the departmental record24\nexcept with the leave of the court in accordance25\nwith the protected disclosure provisions; and26\n(b) section 238(3) and (4) do not apply to the27\nproduction of the departmental record in the28\ncriminal proceeding.29\n\nEvidence Bill 2025\nConsequential amendments to other Acts Part 12\nControl of Vehicles (Off-road Areas) Act 1978 amended Division 8\ns. 432\npage 319\n(3) Section 238(5) to (8) apply to a departmental record1\nthat is produced in a criminal proceeding with the leave2\nof the court under the protected disclosure provisions,3\nor to enable the court to determine an application for4\nleave under the protected disclosure provisions, as if5\nthe departmental record had been produced in response6\nto a requirement under section 238(2).7\n8\n432. Section 239 amended9\nAfter section 239(4) insert:10\n11\n(5) This section operates in addition to any restrictions on12\nthe disclosure of a protected communication (as13\ndefined in the Evidence Act 2025 section 165(1)) that14\nare imposed by the Evidence Act 2025 Part 415\nDivision 3.16\n17\nDivision 8 — Control of Vehicles (Off-road Areas) Act 197818\namended19\n433. Act amended20\nThis Division amends the Control of Vehicles (Off-road Areas)21\nAct 1978.22\n434. Section 28A amended23\nIn section 28A(1)(b) delete “made pursuant to section 106 of the24\nEvidence Act 1906,”.25\n\nEvidence Bill 2025\nPart 12 Consequential amendments to other Acts\nDivision 9 Corruption, Crime and Misconduct Act 2003 amended\ns. 435\npage 320\nDivision 9 — Corruption, Crime and Misconduct Act 20031\namended2\n435. Act amended3\nThis Division amends the Corruption, Crime and Misconduct4\nAct 2003.5\n436. Section 3 amended6\nIn section 3(1) delete the definition of record and insert:7\n8\nrecord includes anything that is a document as defined9\nin the Evidence Act 2025 section 6(1) and (2);10\n11\n437. Section 94 amended12\nIn section 94(6) delete “under section 21 of the Evidence13\nAct 1906.” and insert:14\n15\nin cross-examination under section 52 of the Evidence Act 202516\n(including any questioning permitted under section 47(1)(c) of17\nthat Act).18\n19\n438. Section 145 amended20\nIn section 145(2) delete “under section 21 of the Evidence21\nAct 1906.” and insert:22\n23\nin cross-examination under section 52 of the Evidence Act 202524\n(including any questioning permitted under section 47(1)(c) of25\nthat Act).26\n27\n\nEvidence Bill 2025\nConsequential amendments to other Acts Part 12\nThe Criminal Code amended Division 10\ns. 439\npage 321\nDivision 10 — The Criminal Code amended1\n439. Act amended2\nThis Division amends The Criminal Code.3\n440. Sections 540 and 541 deleted4\nDelete sections 540 and 541.5\nDivision 11 — Criminal Investigation Act 2006 amended6\n441. Act amended7\nThis Division amends the Criminal Investigation Act 2006.8\n442. Section 48 amended9\nIn section 48(4) and (5) delete “section 155.” and insert:10\n11\nthe Evidence Act 2025 section 204.12\n13\n443. Section 118 amended14\nIn section 118(3)(b)(ii) delete “section 155.” and insert:15\n16\nthe Evidence Act 2025 section 204.17\n18\n\nEvidence Bill 2025\nPart 12 Consequential amendments to other Acts\nDivision 11 Criminal Investigation Act 2006 amended\ns. 444\npage 322\n444. Part 11A inserted1\nAfter section 124 insert:2\n3\nPart 11A — Creating recorded statements for4\nuse as evidence5\n124A. Terms used6\nIn this Part —7\noffence includes a suspected offence;8\nrecorded statement has the meaning given in the9\nEvidence Act 2025 section 239;10\nstatement admissibility regulations has the meaning11\ngiven in the Evidence Act 2025 section 241(1).12\n124B. Police officer may create recorded statement for use13\nas evidence14\n(1) A police officer may create a recorded statement from15\na person who is reasonably suspected to be the victim16\nof an offence for use as evidence under the Evidence17\nAct 2025 Part 7 Division 4 in a proceeding to which18\nthat Division applies.19\n(2) The police officer may create the recorded statement20\nonly if —21\n(a) the police officer is qualified to create a22\nrecorded statement under the statement23\nadmissibility regulations; and24\n(b) the person making the statement to the police25\nofficer has reached 18 years of age.26\n\nEvidence Bill 2025\nConsequential amendments to other Acts Part 12\nCriminal Investigation Act 2006 amended Division 11\ns. 444\npage 323\n(3) The police officer must, before interviewing the person1\nabout the offence in a recorded statement, advise the2\nperson —3\n(a) that the recorded statement may be used in4\nevidence at a hearing; and5\n(b) that the person may be called to give evidence6\nin cross-examination or in further examination;7\nand8\n(c) about the access that the accused will have to9\nthe recorded statement if a proceeding is10\ncommenced.11\n124C. Consent of person making statement12\n(1) A police officer must not create a recorded statement13\nfrom a person for use as evidence under the Evidence14\nAct 2025 Part 7 Division 4 without the consent of the15\nperson making the statement.16\n(2) The person is not obliged to give that consent.17\n124D. Recordings to be retained by police18\n(1) The Commissioner of Police must keep any recorded19\nstatement created by a police officer for use as20\nevidence under the Evidence Act 2025 Part 721\nDivision 4, or a copy of it, in safe custody for at least22\n10 years.23\n(2) If the Supreme Court is satisfied there is good cause to24\nkeep a recorded statement for more than 10 years, it25\nmay order the Commissioner of Police to keep the26\nrecorded statement for an additional period set by the27\nCourt.28\n(3) The Commissioner of Police must ensure that the29\nprosecutor in any proceedings in which the recorded30\n\nEvidence Bill 2025\nPart 12 Consequential amendments to other Acts\nDivision 11 Criminal Investigation Act 2006 amended\ns. 445\npage 324\nstatement may be admitted as the evidence in chief of a1\nperson is given a copy of the statement.2\n(4) The Commissioner of Police may, in writing, authorise3\na person to destroy a recorded statement after the4\nexpiry of the period for which it must be kept.5\n(5) The person is authorised to destroy a recorded6\nstatement in accordance with the direction of the7\nCommissioner of Police.8\n(6) The powers conferred by this section are subject to any9\nregulations referred to in the Evidence Act 202510\nsection 249.11\n12\n445. Section 138 amended13\nIn section 138(2)(b) delete “suspect;” and insert:14\n15\nsuspect that the arrested suspect does not have to say or do16\nanything but that anything the arrested suspect does say or do17\nmay be used in evidence;18\n19\n446. Section 154 amended20\nDelete section 154(2)(d) and insert:21\n22\n(d) the court decides otherwise under the Evidence23\nAct 2025 section 204; or24\n25\n447. Section 155 deleted26\nDelete section 155.27\n\nEvidence Bill 2025\nConsequential amendments to other Acts Part 12\nCriminal Procedure Act 2004 amended Division 12\ns. 448\npage 325\nDivision 12 — Criminal Procedure Act 2004 amended1\n448. Act amended2\nThis Division amends the Criminal Procedure Act 2004.3\n449. Section 42 amended4\nIn section 42(1) in the definition of evidentiary material5\nparagraph (a)(iii) delete “Evidence Act 1906” and insert:6\n7\nEvidence Act 20258\n9\n450. Section 64 amended10\nDelete section 64(1)(d) and insert:11\n12\n(d) permit the accused to make any admission or13\ngive any consent under the Evidence Act 202514\nsection 368;15\n16\n451. Section 88 amended17\n(1) In section 88(1) in the definition of proceedings delete18\n“Evidence Act 1906,” and insert:19\n20\nEvidence Act 2025,21\n22\n(2) After section 88(5) insert:23\n24\n(5A) The operation of this section is subject to the Evidence25\nAct 2025.26\n27\n\nEvidence Bill 2025\nPart 12 Consequential amendments to other Acts\nDivision 12 Criminal Procedure Act 2004 amended\ns. 452\npage 326\n452. Section 98 amended1\nDelete section 98(2)(g) and insert:2\n3\n(g) may permit the accused to make any admission4\nor give any consent under the Evidence5\nAct 2025 section 368;6\n7\n453. Section 109 amended8\nDelete section 109(1) and insert:9\n10\n(1) The judge may at any time make an order under the11\nEvidence Act 2025 section 64 that the jury inspect a12\nplace or thing and may give any orders necessary for13\nthe inspection to take place.14\n15\nNote: The heading to amended section 109 is to read:16\nInspection by jury17\n454. Section 119 amended18\nDelete section 119(2).19\n455. Section 137A amended20\nDelete section 137A(a) and insert:21\n22\n(a) section 137B; and23\n(aaa) the Evidence Act 2025 sections 166, 236(10),24\n242(3), 254(3), 300(1) and 400(2); and25\n26\n\nEvidence Bill 2025\nConsequential amendments to other Acts Part 12\nCriminal Procedure Act 2004 amended Division 12\ns. 456\npage 327\n456. Section 137B inserted1\nAfter section 137A insert:2\n3\n137B. Restrictions on disclosure of recorded evidence4\n(1) In this section —5\nevidentiary material has the meaning given by6\nsection 42;7\nserve, a person, means to serve the person in8\naccordance with Schedule 2 clause 2, 3 or 4.9\n(2) A prosecutor must not serve on an accused a copy of10\nany recording or recorded statement if —11\n(a) it is a recording to which Schedule 3 clause 812\napplies; or13\n(b) the accused is not entitled to be in possession of14\nthe recording or recorded statement under the15\nEvidence Act 202516\nsection 236(10), 242(3), 254(3), 300(1)17\nor 400(2).18\n(3) If another provision of this Act requires a prosecutor to19\nserve on an accused evidentiary material that is a copy20\nof a recording or a recorded statement, and21\nsubsection (2) applies to the copy of the recording or22\nrecorded statement, the prosecutor must comply with23\nthat requirement by —24\n(a) serving a copy of the recording or recorded25\nstatement on the accused’s legal practitioner; or26\n(b) if the accused is not represented by a legal27\npractitioner —28\n(i) serving a transcript of the recording or29\nrecorded statement on the accused; and30","sortOrder":29},{"sectionNumber":"retrieval-0031","sectionType":"document_chunk","heading":"Document excerpt 31","content":"Evidence Bill 2025\nPart 12 Consequential amendments to other Acts\nDivision 12 Criminal Procedure Act 2004 amended\ns. 457\npage 328\n(ii) giving the accused a reasonable1\nopportunity to view the recording or2\nrecorded statement in accordance with3\nany applicable requirements of the4\nEvidence Act 2025.5\n(4) A prosecutor who complies with subsection (3) is6\ntaken, for the purposes of this Act, to have served a7\ncopy of the relevant evidentiary material on the8\naccused.9\n(5) This section applies to any relevant authorised officer10\n(as defined in section 80) who is required by this Act to11\nserve evidentiary material on an accused in the same12\nway as it applies to a prosecutor.13\n14\n457. Section 144 amended15\nIn section 144(2) delete “Evidence Act 1906” and insert:16\n17\nEvidence Act 202518\n19\n458. Section 168 amended20\nDelete section 168(4) and insert:21\n22\n(4) Subsection (1) does not affect the operation of the23\nEvidence Act 2025 sections 357 to 359.24\n25\n\nEvidence Bill 2025\nConsequential amendments to other Acts Part 12\nCriminal Procedure Act 2004 amended Division 12\ns. 459\npage 329\n459. Section 171 amended1\n(1) In section 171(4):2\n(a) in paragraph (c) delete “offence.” and insert:3\n4\noffence;5\n6\n(b) after paragraph (c) insert:7\n8\n(d) order that robes not be worn by any judge or9\nmagistrate, or any legal practitioners, during the10\nwhole of the proceedings, or a part of them11\nspecified by the court.12\n13\n(2) After section 171(6) insert:14\n15\n(6A) An order made under subsection (4)(a) may allow any16\npersons or class of persons excluded or directed to17\nleave to observe or listen to the whole or part of the18\nproceedings by means of a video link or audio link.19\n20\n460. Section 172 amended21\nIn section 172(2) delete “Evidence Act 1906” and insert:22\n23\nEvidence Act 202524\n25\n\nEvidence Bill 2025\nPart 12 Consequential amendments to other Acts\nDivision 12 Criminal Procedure Act 2004 amended\ns. 461\npage 330\n461. Schedule 3 clause 2 replaced1\nDelete Schedule 3 clause 2 and insert:2\n3\n2. Evidence Act 2025 not affected4\nThis Schedule is in addition to and does not limit the5\noperation of the Evidence Act 2025.6\n7\n462. Schedule 3 clause 6 amended8\nDelete Schedule 3 clause 6(3) and insert:9\n10\n(3) A court conducting an examination of a witness under this11\nclause is not prevented from making orders under the12\nEvidence Act 2025 Part 7 in relation to the witness.13\n14\n463. Schedule 3 clause 7 amended15\nIn Schedule 3 clause 7(1):16\n(a) in paragraph (e) delete “witness.” and insert:17\n18\nwitness; or19\n20\n(b) after paragraph (e) insert:21\n22\n(f) that all the parties consent to the statement or23\nrecording being admitted as the whole or part of the24\nevidence in chief of the witness and that the witness25\nis available to give further evidence in the26\nproceeding if required.27\n28\n\nEvidence Bill 2025\nConsequential amendments to other Acts Part 12\nCriminal Procedure Act 2004 amended Division 12\ns. 464\npage 331\n464. Schedule 3 clause 8 inserted1\nAfter Schedule 3 clause 7 insert:2\n3\n8. Access of accused to some recorded evidence restricted4\n(1) In this clause —5\nspecial procedure for giving evidence has the meaning6\ngiven in the Evidence Act 2025 section 228(1).7\n(2) A court that conducts an examination under clause 6 must8\nnot give to the accused a copy of an electronic recording of9\na witness’s evidence at the examination if —10\n(a) the evidence of the witness at the examination is11\ngiven using a special procedure for giving evidence;12\nor13\n(b) the court considers that any evidence of the witness14\nat trial may be given using a special procedure for15\ngiving evidence.16\n(3) If this clause prevents the court from giving an accused a17\ncopy of an electronic recording of a witness’s evidence, the18\ncourt must comply with clause 6(7) by —19\n(a) giving a copy of the recording to the accused’s legal20\npractitioner; or21\n(b) if the accused is not represented by a legal22\npractitioner, giving a transcript of the recording to23\nthe accused.24\n(4) If an accused is not given a copy of an electronic recording25\nof evidence given at an examination under clause 6 because26\nthe accused is not represented by a legal practitioner, the27\nrecording of evidence is not admissible in evidence under28\nclause 7 unless the court is satisfied that the prosecutor has29\ngiven the accused a reasonable opportunity to view the30\nrecording (if it is an audio visual recording) or to hear the31\nrecording (if it is an audio recording).32\n33\n\nEvidence Bill 2025\nPart 12 Consequential amendments to other Acts\nDivision 13 Criminal Property Confiscation Act 2000 amended\ns. 465\npage 332\nDivision 13 — Criminal Property Confiscation Act 20001\namended2\n465. Act amended3\nThis Division amends the Criminal Property Confiscation4\nAct 2000.5\n466. Sections 109A to 109E inserted6\nAfter section 109 insert:7\n8\n109A. Terms used9\n(1) In this section and sections 109B to 109D —10\nbusiness record means a book of account or other11\ndocument prepared or used in the ordinary course of a12\nbusiness for the purpose of recording any matter13\nrelating to the business;14\nderived means derived, by the use of a computer or15\notherwise, by calculation, comparison, selection,16\nsorting, consolidation or by accounting, statistical or17\nlogical procedures;18\nqualified person, in relation to a statement, means a19\nperson who —20\n(a) if the statement is not admissible in evidence21\nunless made by an expert on the subject of the22\nstatement — was at the time of making of the23\nstatement such an expert; or24\n(b) otherwise — had, at the time of making of the25\nstatement, or may reasonably be supposed to26\nhave had at that time, personal knowledge of27\nthe matters dealt with by the statement;28\nstatement includes any representation of fact or29\nopinion whether made in words or otherwise.30\n\nEvidence Bill 2025\nConsequential amendments to other Acts Part 12\nCriminal Property Confiscation Act 2000 amended Division 13\ns. 466\npage 333\n(2) A reference in subsection (1) to a business includes a1\nreference to the following —2\n(a) a profession, calling, occupation, trade or3\nundertaking;4\n(b) an activity engaged in or carried on by the5\nCommonwealth, a State or a Territory;6\n(c) an activity engaged in or carried on by the7\ngovernment of a foreign country;8\n(d) an activity engaged in or carried on by a person9\nor body holding office or exercising power10\nunder or because of the Commonwealth11\nConstitution, an Australian law or a law of a12\nforeign country, being an activity engaged in or13\ncarried on in the performance of the functions14\nof the office or in the exercise of the power15\n(otherwise than in a private capacity);16\n(e) the proceedings of an Australian Parliament, a17\nHouse of an Australian Parliament, a committee18\nof a House of an Australian Parliament or a19\ncommittee of an Australian Parliament;20\n(f) the proceedings of a legislature of a foreign21\ncountry, including a House or committee22\n(however described) of a legislature of a23\nforeign country.24\n(3) A reference in subsection (1) to a business also25\nincludes a reference to each of the following —26\n(a) a business that is not engaged in or carried on27\nfor profit;28\n(b) a business engaged in or carried on outside29\nAustralia.30\n\nEvidence Bill 2025\nPart 12 Consequential amendments to other Acts\nDivision 13 Criminal Property Confiscation Act 2000 amended\ns. 466\npage 334\n109B. Admissibility of business records1\n(1) Subsection (2) applies if, in a proceeding under this2\nAct, oral evidence of a fact or opinion would be3\nadmissible.4\n(2) A statement in a document and tending to establish the5\nfact or opinion is, on production of the document,6\nadmissible as evidence of that fact or opinion, if —7\n(a) the statement is, or directly or indirectly8\nreproduces, or is derived from, a business9\nrecord; and10\n(b) the court is satisfied that the business record is11\na genuine business record.12\n(3) If a statement referred to in subsection (2) is made by a13\nqualified person, that person must not be called as a14\nwitness unless the court otherwise orders.15\n(4) This section —16\n(a) makes a statement admissible despite —17\n(i) the hearsay rule as defined in the18\nEvidence Act 2025 section 3(1); and19\n(ii) the rules against secondary evidence of20\nthe contents of a document; and21\n(iii) if applicable, the fact that the person22\nwho made the statement, or the person23\nwho made a statement from which the24\ninformation in the statement is25\nreproduced or derived, is a witness in26\nthe proceeding (whether or not the27\nperson gives evidence consistent or28\ninconsistent with the statement); and29\n\nEvidence Bill 2025\nConsequential amendments to other Acts Part 12\nCriminal Property Confiscation Act 2000 amended Division 13\ns. 466\npage 335\n(iv) if applicable, the fact that the statement1\nis in such a form that it would not be2\nadmissible if given as oral evidence;3\nbut4\n(b) does not make admissible a statement that is5\notherwise inadmissible.6\n(5) For the purpose of deciding under subsection (2)7\nwhether or not a statement is admissible as evidence,8\nthe court may draw any reasonable inference from —9\n(a) the form of contents of the document10\ncontaining the statement; or11\n(b) any other circumstances.12\n109C. Weight of evidence admitted under s. 109B13\n(1) This section applies to a court estimating the weight, if14\nany, to be given to a statement admitted as evidence in15\na proceeding under section 109B.16\n(2) The court must have regard to all the circumstances17\nfrom which any inference can reasonably be drawn as18\nto the accuracy or otherwise of the statement,19\nincluding —20\n(a) the question of whether or not the statement21\nwas made contemporaneously with the22\noccurrence or existence of the facts stated; and23\n(b) the question of whether or not the qualified24\nperson, or any person concerned with making25\nor keeping the document containing the26\nstatement, had any incentive to conceal or27\nmisrepresent the facts; and28\n(c) the question of whether or not the information29\nin the statement was of a kind that was30\ncollected systematically; and31\n\nEvidence Bill 2025\nPart 12 Consequential amendments to other Acts\nDivision 13 Criminal Property Confiscation Act 2000 amended\ns. 466\npage 336\n(d) the question of whether or not the information1\nin the statement was collected under a duty to2\ndo so; and3\n(e) if the statement wholly or partly reproduces or4\nis derived from information from 1 or more5\ndevices — the reliability of the device or6\ndevices; and7\n(f) if the statement reproduces or is derived from8\nany information — the reliability of the means9\nof reproduction or derivation.10\n109D. Evidence as to credibility of qualified persons11\n(1) This section applies if —12\n(a) a statement is admitted as evidence in a13\nproceeding under section 109B; and14\n(b) the qualified person who made the statement is15\nnot called as a witness in the proceeding.16\n(2) Evidence that, if the qualified person had been called,17\nwould have been admissible under the Evidence18\nAct 2025 Part 3 Division 7 Subdivision 2 for the19\npurpose of destroying or supporting the person’s20\ncredibility, is admissible in the proceeding for that21\npurpose.22\n(3) Evidence tending to prove that, whether before or after23\nthe qualified person made the statement, the person24\nmade another statement (whether orally, in a document25\nor otherwise) inconsistent with the statement, is26\nadmissible in the proceeding for the purpose of27\nshowing that the person has contradicted themself.28\n(4) Nothing in subsection (2) or (3) allows evidence to be29\ngiven of a matter if, had the qualified person been30\ncalled as a witness and denied the matter in31\n\nEvidence Bill 2025\nConsequential amendments to other Acts Part 12\nCriminal Property Confiscation Act 2000 amended Division 13\ns. 466\npage 337\ncross-examination, evidence of that matter could not1\nhave been adduced by the cross-examining party.2\n(5) Evidence proving that the qualified person has been3\nconvicted of an indictable offence is admissible in the4\nproceeding to the same extent as it would be if —5\n(a) the person had been called; and6\n(b) on being questioned as to whether or not the7\nperson had been convicted of an indictable8\noffence the person had —9\n(i) denied the fact; or10\n(ii) not admitted the fact; or11\n(iii) refused to answer the question.12\n109E. Dispute as to happening of event13\n(1) Subsection (2) applies if —14\n(a) in a proceeding under this Act the happening of15\nan event of a particular kind is in question; and16\n(b) a system has been followed of making and17\nkeeping a record of the occurrence of all events18\nof that kind.19\n(2) Oral or other evidence to establish that there is no20\nrecord of the happening of the event is admissible in21\nthe proceeding to prove that the event did not happen.22\n(3) If evidence is, or is proposed to be, tendered in a23\nproceeding under subsection (2), the court may —24\n(a) order that the whole or part of the record be25\nproduced; and26\n(b) if the order is not complied with —27\n(i) reject the evidence; or28\n(ii) if the evidence has been received,29\nexclude it.30\n\nEvidence Bill 2025\nPart 12 Consequential amendments to other Acts\nDivision 14 High Risk Serious Offenders Act 2020 amended\ns. 467\npage 338\n(4) Subsection (5) applies to a court estimating the weight,1\nif any, to be given to evidence admitted in a proceeding2\nunder subsection (2).3\n(5) The court must have regard to all the circumstances4\nfrom which any inference can reasonably be drawn as5\nto the accuracy or otherwise of the evidence, including6\nwhether or not any person concerned with the making7\nor keeping of the relevant record had any incentive to8\nomit recording the happening of the event in question.9\n10\n467. Glossary clause 1 amended11\nIn the Glossary clause 1 delete the definition of document and12\ninsert:13\n14\ndocument has the meaning given in the Evidence Act 202515\nsection 6(1) and (2);16\n17\nDivision 14 — High Risk Serious Offenders Act 2020 amended18\n468. Act amended19\nThis Division amends the High Risk Serious Offenders20\nAct 2020.21\n469. Section 39 amended22\nDelete section 39(5)(a) and insert:23\n24\n(a) the Evidence Act 2025 sections 166, 236(10),25\n242(3), 254(3), 300(1) and 400(2); and26\n27\n\nEvidence Bill 2025\nConsequential amendments to other Acts Part 12\nJuries Act 1957 amended Division 15\ns. 470\npage 339\n470. Section 69 amended1\nDelete section 69(3)(d) and insert:2\n3\n(d) a decision under the Evidence Act 20254\nsection 169 to give or refuse leave to disclose5\nor require disclosure of a protected6\ncommunication in or in connection with a7\nrestriction order application;8\nDivision 15 — Juries Act 1957 amended9\n471. Act amended10\nThis Division amends the Juries Act 1957.11\n472. Part VIII heading amended12\nIn the heading to Part VIII delete “View,” and insert:13\n14\nInspections and15\n16\n473. Section 51 amended17\n(1) In section 51(1):18\n(a) delete “an order,” and insert:19\n20\nan order under the Evidence Act 2025 section 64,21\n22\n(b) delete “have a view of ” and insert:23\n24\ninspect25\n26\n\nEvidence Bill 2025\nPart 12 Consequential amendments to other Acts\nDivision 16 Licensed Surveyors Act 1909 amended\ns. 474\npage 340\n(c) delete “the view” and insert:1\n2\nthe inspection3\n4\n(2) In section 51(2) and (3) delete “viewers” and insert:5\n6\ninspectors7\n8\nNote: The heading to amended section 51 is to read:9\nInspection by jury on a civil trial10\nDivision 16 — Licensed Surveyors Act 1909 amended11\n474. Act amended12\nThis Division amends the Licensed Surveyors Act 1909.13\n475. Section 8B amended14\nIn section 8B delete “section 11 of the Evidence Act 1906,” and15\ninsert:16\n17\nthe Evidence Act 2025 section 186,18\n19\n476. Third Schedule amended20\nIn the Third Schedule delete “And I make this solemn declaration21\nby virtue of section 106 of the Evidence Act 1906.”.22\n\nEvidence Bill 2025\nConsequential amendments to other Acts Part 12\nPrivacy and Responsible Information Sharing Act 2024\namended\nDivision 17\ns. 477\npage 341\nDivision 17 — Privacy and Responsible Information Sharing1\nAct 2024 amended2\n477. Act amended3\nThis Division amends the Privacy and Responsible Information4\nSharing Act 2024.5\n478. Section 158 amended6\nDelete section 158(1)(b)(i) and insert:7\n8\n(i) the identity of a person who is a9\ncomplainant (as defined in the Evidence10\nAct 2025 section 3(1)) in relation to a11\nsexual offence (as defined in12\nsection 3(1) of that Act); or13\n14\nDivision 18 — Restraining Orders Act 1997 amended15\n479. Act amended16\nThis Division amends the Restraining Orders Act 1997.17\n480. Section 53B replaced18\nDelete section 53B and insert:19\n20\n53B. Evidence of children21\n(1) In this section —22\npre-recording procedure has the meaning given in the23\nEvidence Act 2025 section 228(1);24\nvideo link separation procedure has the meaning given25\nin the Evidence Act 2025 section 3(1).26","sortOrder":30},{"sectionNumber":"retrieval-0032","sectionType":"document_chunk","heading":"Document excerpt 32","content":"Evidence Bill 2025\nPart 12 Consequential amendments to other Acts\nDivision 19 Spent Convictions Act 1988 amended\ns. 481\npage 342\n(2) This section applies if —1\n(a) in accordance with section 53A, a child is2\ngiving oral evidence in any proceedings under3\nthis Act; and4\n(b) the necessary facilities and equipment for that5\nevidence to be given using a video link6\nseparation procedure are available.7\n(3) The child’s evidence must be given using a video link8\nseparation procedure.9\n(4) This section does not apply if the evidence of the child10\nis given using a pre-recording procedure.11\n12\nDivision 19 — Spent Convictions Act 1988 amended13\n481. Act amended14\nThis Division amends the Spent Convictions Act 1988.15\n482. Section 14 replaced16\nDelete section 14 and insert:17\n18\n14. Division 4 does not apply to proceedings in which19\nlaws of evidence apply20\n(1) Division 4 does not apply —21\n(a) to a proceeding in a court or tribunal that22\napplies the laws of evidence; or23\n(b) to the making of any decision by a court or24\ntribunal that applies the laws of evidence.25\n(2) Division 4 does not affect the operation of the Evidence26\nAct 2025, in particular section 357.27\n\nEvidence Bill 2025\nConsequential amendments to other Acts Part 12\nSupreme Court Act 1935 amended Division 20\ns. 483\npage 343\n(3) A court, tribunal or judge that receives evidence of a1\nspent conviction must take any steps that are2\nreasonably available to prevent or minimise publication3\nof a spent conviction.4\n14A. Division 4 does not affect Commissioner of Police5\nacting under s. 76\nDivision 4 does not affect the Commissioner of Police7\nacting under section 7.8\n9\nDivision 20 — Supreme Court Act 1935 amended10\n483. Act amended11\nThis Division amends the Supreme Court Act 1935.12\n484. Section 42 amended13\nIn section 42(1)(b) delete “seduction,”.14\n485. Section 172 deleted15\nDelete section 172.16\nDivision 21 — The Commercial Bank of Australia Limited17\n(Merger) Act 1982 amended18\n486. Act amended19\nThis Division amends The Commercial Bank of Australia20\nLimited (Merger) Act 1982.21\n487. Section 11 amended22\nDelete section 11(2) and (3).23\n\nEvidence Bill 2025\nPart 12 Consequential amendments to other Acts\nDivision 22 The Commercial Banking Company of Sydney Limited\n(Merger) Act 1982 amended\ns. 488\npage 344\nDivision 22 — The Commercial Banking Company of Sydney1\nLimited (Merger) Act 1982 amended2\n488. Act amended3\nThis Division amends The Commercial Banking Company of4\nSydney Limited (Merger) Act 1982.5\n489. Section 10 amended6\nDelete section 10(2) and (3).7\nDivision 23 — Westpac Banking Corporation (Challenge Bank)8\nAct 1996 amended9\n490. Act amended10\nThis Division amends the Westpac Banking Corporation11\n(Challenge Bank) Act 1996.12\n491. Section 15 amended13\nDelete section 15(2) and (3).14\nDivision 24 — Other Acts amended15\n492. Various references to “Evidence Act 1906” amended16\n(1) In the provisions listed in the Table:17\n(a) delete “Evidence Act 1906” and insert:18\n19\nEvidence Act 202520\n21\n(b) delete “Evidence Act 1906” and insert:22\n23\nEvidence Act 202524\n25\n\nEvidence Bill 2025\nConsequential amendments to other Acts Part 12\nOther Acts amended Division 24\ns. 492\npage 345\nTable1\nArchitects Act 2004 s. 75(6)\nBiodiversity Conservation\nAct 2016\ns. 254\nBiosecurity and Agriculture\nManagement Act 2007\ns. 124\nBuilding Act 2011 s. 137\nBuilding Services (Complaint\nResolution and Administration)\nAct 2011\ns. 108(4)\nBuilding Services (Registration)\nAct 2011\ns. 103(4)\nCat Act 2011 s. 75(3)\nDangerous Goods Safety\nAct 2004\ns. 58(7)\nEmergency Management\nAct 2005\ns. 99(4)\nEnergy Operators (Powers)\nAct 1979\ns. 87(4)(a)\nFamily Court Act 1997 s. 202H(2)\ns. 202H(6) def. of excluded\nrules of evidence\ns. 219AA\n\nEvidence Bill 2025\nPart 12 Consequential amendments to other Acts\nDivision 24 Other Acts amended\ns. 492\npage 346\nFamily Provision Act 1972 s. 21A(13)\nHealth Services Act 2016 s. 225\nLegislation Act 2021 s. 7 note\nLiquor Control Act 1988 s. 16(7)\nLocal Government Act 1995 s. 9.32\nMedicines and Poisons Act 2014 s. 125(3)\nNational Disability Insurance\nScheme (Worker Screening)\nAct 2020\ns. 77(6)\nState Administrative Tribunal\nAct 2004\ns. 32(2)\nState Records Act 2000 s. 79(6)\nTeacher Registration Act 2012 s. 120\nTobacco Products Control\nAct 2006\ns. 113(6)\nVeterinary Practice Act 2021 s. 148\nWater Services Act 2012 s. 206\nWaterways Conservation\nAct 1976\ns. 75(9)(a)\nWestern Australian Marine\nAct 1982\ns. 126(3)\n\nEvidence Bill 2025\nConsequential amendments to other Acts Part 12\nOther Acts amended Division 24\ns. 492\npage 347\nWorkers Compensation and\nInjury Management Act 2023\ns. 336(2)\nWorking with Children\n(Screening) Act 2004\ns. 44(6)\n(2) Amend the provisions listed in the Table as set out in the Table.1\nTable2\nProvision Delete Insert\n1. Architects Act 2004\ns. 13 Evidence Act 1906\nsection 11\nEvidence Act 2025\nsection 186\n2. Auditor General Act 2006\ns. 36(4) Evidence Act 1906\nsection 21\nEvidence Act 2025\nsection 52\n3. Civil Liability Act 2002\ns. 3A(1) Table\nit. 1(b)\nEvidence Act 1906\nsection 36A\nEvidence Act 2025\nsection 3(1)\n4. Community Protection (Offender Reporting) Act 2004\ns. 85G(1) def. of\nprescribed offence\nEvidence Act 1906\nsection 36A\nEvidence Act 2025\nsection 3(1)\n5. Courts and Tribunals (Electronic Processes Facilitation)\nAct 2013\ns. 6(1)(j) Evidence Act 1906\n(other than\nsection 19B)\nEvidence Act 2025\n\nEvidence Bill 2025\nPart 12 Consequential amendments to other Acts\nDivision 24 Other Acts amended\ns. 492\npage 348\nProvision Delete Insert\n6. Criminal Appeals Act 2004\ns. 40(1)(d) Evidence Act 1906\nsection 9\nEvidence Act 2025\nsection 28\n7. District Court of Western Australia Act 1969\ns. 5(3) within the meaning\nof the term “Court”\nin the Evidence\nAct 1906, and\nfor the purposes of the\nEvidence Act 2025 and\n8. Education Service Providers (Full Fee Overseas Students)\nRegistration Act 1991\ns. 33 section 11 of the\nEvidence Act 1906\nthe Evidence Act 2025\nsection 186\n9. Fair Trading Act 2010\ns. 86(2) Evidence Act 1906\nsection 11\nEvidence Act 2025\nsection 186\n10. Finance Brokers Control Act 1975\ns. 18E section 11 of the\nEvidence Act 1906\nthe Evidence Act 2025\nsection 186\n11. Magistrates Court (Civil Proceedings) Act 2004\ns. 16(1)(l) Evidence Act 1906\nsection 120\nEvidence Act 2025\nsection 3(1)\n\nEvidence Bill 2025\nConsequential amendments to other Acts Part 12\nOther Acts amended Division 24\ns. 492\npage 349\nProvision Delete Insert\n12. Mental Health Act 2014\ns. 4 def. of\ndocument\nEvidence Act 1906\nsection 79B\nEvidence Act 2025\nsection 6(1) and (2)\n13. Oaths, Affidavits and Statutory Declarations Act 2005\ns. 7(3) Evidence Act 1906\nsection 120\nEvidence Act 2025\nsection 3(1)\n14. Petroleum Products Pricing Act 1983\ns. 24(2) section 11 of the\nEvidence Act 1906\nthe Evidence Act 2025\nsection 186\n15. Royal Commissions Act 1968\ns. 4 def. of\ndocuments\nsection 79B of the\nEvidence Act 1906\nthe Evidence Act 2025\nsection 6(1) and (2)\ns. 8A(8) section 21 of the\nEvidence Act 1906\nthe Evidence Act 2025\nsection 52\n16. Teacher Registration Act 2012\ns. 48C(7)\ns. 68A(5)\ns. 77B(5)\nEvidence Act 1906\nsection 11\nEvidence Act 2025\nsection 186\ns. 118(3A) Evidence Act 1906\nsection 36C\nEvidence Act 2025\nsection 381\n\nEvidence Bill 2025\nPart 12 Consequential amendments to other Acts\nDivision 24 Other Acts amended\ns. 492\npage 350\nProvision Delete Insert\n17. Transfer of Land Act 1893\ns. 9(2) section 55 or 56 of\nthe Evidence\nAct 1906\nthe Evidence Act 2025\nsection 337\n18. Veterinary Practice Act 2021\ns. 95(4)\ns. 116(4)\nEvidence Act 1906\nsection 11\nEvidence Act 2025\nsection 186\nNote: In the Acts listed in the Table, the headings to the amended sections1\nlisted in the Table are to read as set out in the Table.2\nTable3\nAmended section Section heading\n1. Biodiversity Conservation Act 2016\ns. 254 Provisions in addition to Evidence Act 2025\n2. Biosecurity and Agriculture Management Act 2007\ns. 124 Provisions in addition to Evidence Act 2025\n3. Building Act 2011\ns. 137 Evidence Act 2025 not excluded\n4. Family Court Act 1997\ns. 219AA Evidence Act 2025 not excluded\n5. Health Services Act 2016\ns. 225 Evidence Act 2025 not affected\n6. Local Government Act 1995\ns. 9.32 Evidence Act 2025 not excluded\n\nEvidence Bill 2025\nConsequential amendments to other Acts Part 12\nOther Acts amended Division 24\ns. 492\npage 351\nAmended section Section heading\n7. Teacher Registration Act 2012\ns. 120 Evidence Act 2025 not affected\n8. Veterinary Practice Act 2021\ns. 148 Evidence Act 2025 not affected\n9. Water Services Act 2012\ns. 206 Provisions in addition to Evidence Act 2025\n1\n\nEvidence Bill 2025\nDefined terms\npage 352\nDefined terms\n[This is a list of terms defined and the provisions where they are defined.\nThe list is not part of the law.]\nDefined term Provision(s)\naccredited witness intermediary ........................................................................ 284\naccused ............................................................................................................. 3(1)\nacquittal........................................................................................................ 357(1)\nadmission ......................................................................................................... 3(1)\naffected child................................................................................................ 228(1)\nAFP employee.............................................................................................. 359(1)\nAFP special member .................................................................................... 359(1)\nagreed fact .................................................................................................... 372(1)\naircraft .......................................................................................................... 365(1)\nalleged sexual interest or act ........................................................................ 114(6)\nalter ................................................................................................. 228(1), 400(1)\napplicable court ............................................................................................ 357(1)\nasserted fact........................................................................................... 3(1), 72(1)\nassistance application ...................................................................... 221(1), 222(1)\nassistance order ............................................................................... 221(1), 223(1)\naudio link ......................................................................................................... 3(1)\nAustralia ........................................................................................................... 3(1)\nAustralian court................................................................................................ 3(1)\nAustralian law .................................................................................................. 3(1)\nAustralian or overseas proceeding ................................................................... 3(1)\nAustralian Parliament....................................................................................... 3(1)\nAustralian Statistician .................................................................................. 340(1)\nauthorised officer ......................................................................................... 361(1)\nauthorised person ......................................................................................... 352(1)\nbusiness ....................................................................................... 3(1), 4(1) and (2)\ncase .................................................................................................................. 3(1)\nchild ................................................................................................................. 3(1)\nchild protection proceeding .......................................................................... 228(1)\nchild sexual offence ..................................................................................... 114(1)\ncivil proceeding................................................................................................ 3(1)\nclient ................................................................................................... 3(1), 148(1)\nco-accused........................................................................................................ 3(1)\ncoincidence evidence ....................................................................................... 3(1)\ncoincidence rule ............................................................................................... 3(1)\nCommonwealth record ................................................................................. 335(1)\ncommunication directions .................................................................... 293, 294(1)\ncomplainant...................................................................................................... 3(1)\nconfidant ...................................................................................................... 158(1)\nconfidential communication ......................................................................... 148(1)","sortOrder":31},{"sectionNumber":"retrieval-0033","sectionType":"document_chunk","heading":"Document excerpt 33","content":"Evidence Bill 2025\nDefined terms\npage 353\nconfidential document .................................................................................. 148(1)\ncopy..................................................................................................................... 58\ncorresponding legislation .................................................................................. 207\ncorresponding provision.................................................................. 187(5), 189(5)\ncounselling communication ............................................................ 164(1), 165(2)\ncounsellor ..................................................................................................... 165(2)\ncounsels........................................................................................... 164(1), 165(4)\ncourt ................................................................................................................. 3(1)\ncredibility ......................................................................................................... 3(1)\ncredibility evidence ........................................................................................... 119\ncredibility rule .................................................................................................. 3(1)\ncriminal or identified organisation ................................................................... 3(1)\ncriminal or identified organisation offence ...................................................... 3(1)\ncriminal proceeding ......................................................................................... 3(1)\ncross-examination ................................................................................... 3(1), 5(2)\ncross-examiner ................................................................................................. 3(1)\ndelay .................................................................................................................. 316\nDepartment................................................................................................... 310(1)\ndestroy............................................................................................. 228(1), 400(1)\nDirector of Public Prosecutions ........................................................................ 299\ndisability .......................................................................................................... 3(1)\ndisallowable question ..................................................................................... 50(1)\ndiscloses .......................................................................................... 164(1), 166(2)\ndisclosure certificate ............................................................................ 185, 188(7)\ndisclosure order ................................................................................................. 185\ndisclosure requirement ................................................................................. 183(1)\ndispute .......................................................................................................... 194(1)\nDNA profile ................................................................................................. 360(4)\ndocument..................................................................................... 3(1), 6(1) and (2)\ndocument in question .......................................................................................... 58\nduties Act ....................................................................................................... 62(1)\nelectronic communication ................................................................................ 3(1)\neligible service ................................................................................. 378(1) and (2)\nevidence certificate .............................................................................. 185, 186(7)\nevidence of family violence ......................................................................... 137(1)\nexamination..................................................................................... 216(1), 360(1)\nexamination in chief................................................................................ 3(1), 5(1)\nexcluded party ...................................................................................... 275, 276(1)\nexclusion order ..................................................................................... 179, 181(1)\nexpert ........................................................................................................... 138(1)\nexpert certificate .......................................................................................... 356(1)\nexternal Territory ............................................................................................. 3(1)\nextra-territorial examination order .................................................. 216(1), 217(1)\nfamily member .................................................................................................. 136\n\nEvidence Bill 2025\nDefined terms\npage 354\nfamily violence ................................................................................................ 3(1)\nfamily violence direction matter .................................................................. 147(1)\nfamily violence offence.................................................................................... 3(1)\nforeign court..................................................................................................... 3(1)\nforensic biology certificate ............................................................. 360(3), 361(2)\nforensic scientist .......................................................................................... 360(1)\nformer Act ......................................................................................................... 388\nformer Act recording......................................................................................... 388\ngovernment or official gazette ......................................................................... 3(1)\ngovernment or official website ........................................................................ 3(1)\nground rules hearing ........................................................................... 3(1), 295(1)\nharm ................................................................................................................. 3(1)\nhearsay rule ...................................................................................................... 3(1)\nhelp-seeking behaviour ..................................................................................... 136\nidentification evidence ............................................................................. 3(1), 133\nidentification record .......................................................................................... 133\nidentifying evidence ..................................................................................... 181(2)\nimmunity certificate ..................................................................................... 191(4)\nincriminate ........................................................................................................ 185\ninference ...................................................................................................... 104(1)\ninferior court ................................................................................................ 216(1)\ninformant........................................................................................................... 179\ninquest .......................................................................................................... 378(1)\ninterview admissibility regulations ...................................................... 251, 253(1)\ninvestigating official ........................................................................................ 3(1)\njoint sitting ..................................................................................................... 25(1)\njournalist ........................................................................................................... 179\njournalist privilege ............................................................................................ 179\njudge ................................................................................................................ 3(1)\njudicial authority .......................................................................................... 216(1)\nJustice document .......................................................................................... 310(1)\nlaw............................................................................................. 3(1), 10(1) and (2)\nleading question ............................................................................................... 3(1)\nlegal counsel .................................................................................................... 3(1)\nlegal representative ...................................................................................... 148(1)\nliable person ................................................................................................. 378(1)\nmatter raised by evidence............................................................................... 55(1)\nmental impairment ........................................................................................... 3(1)\nminister of religion ........................................................................................... 3(1)\nmisconduct ........................................................................................................ 179\nnews medium .................................................................................................... 179\noffence ............................................................................................................. 3(1)\noffice holder ................................................................................................. 337(1)\noffspring ................................................................................................ 3(1), 13(1)\n\nEvidence Bill 2025\nDefined terms\npage 355\nopinion rule ...................................................................................................... 3(1)\noriginal document .......................................................................................... 62(2)\nout-of-court representation................................................................... 228(1), 235\nparent .................................................................................................... 3(1), 13(2)\nparticipating jurisdiction ................................................................................... 207\nparty .................................................................................................... 3(1), 148(1)\nperson acting judicially .................................................................................... 3(1)\npersonal knowledge of the asserted fact............................................. 75(2) and (3)\npolice-assisted identification evidence.............................................................. 133\npolice officer .................................................................................................... 3(1)\npostal article ................................................................................................. 348(1)\npower .............................................................................................. 156(1), 194(1)\npreliminary question .................................................................................... 370(1)\npre-recording order .............................................................................. 261, 262(1)\npre-recording procedure ............................................................................... 228(1)\nprevious representation ......................................................................... 3(1), 75(1)\nprior consistent statement ................................................................................ 3(1)\nprior inconsistent statement ............................................................................. 3(1)\nprivilege affidavit ......................................................................................... 188(2)\nprobative value ................................................................................................. 3(1)\nproceeding........................................................................................................ 3(1)\nprosecutor ........................................................................................................ 3(1)\nprotected communication .................................................................... 3(1), 165(1)\nprotected confidence .................................................................................... 158(1)\nprotected confider ........................................................................................ 158(1)\nprotected identity information ...................................................................... 158(1)\nprotected person ........................................................................................... 164(1)\nprotected recording ........................................................................................... 299\npublic document .......................................................................... 3(1), 6(3) and (4)\npublish.............................................................................................................. 3(1)\nrecognised court ................................................................................................ 207\nrecorded interview ............................................................................... 228(1), 251\nrecorded statement ............................................................................... 228(1), 239\nrecorded statement provisions ...................................................................... 385(1)\nre-examination ........................................................................................ 3(1), 5(3)\nrelated proceeding ............................................................................................ 3(1)\nrelevant person ............................................................................................. 188(1)\nreligious confession ..................................................................................... 200(1)\nrepeal day .......................................................................................................... 388\nrepresentation ................................................................................................... 3(1)\nrequest ............................................................................................................... 323\nrequesting court............................................................................................ 221(1)\nrequesting party................................................................................................. 323\nrequire disclosure ............................................................................ 164(1), 166(3)","sortOrder":32},{"sectionNumber":"retrieval-0034","sectionType":"document_chunk","heading":"Document excerpt 34","content":"Evidence Bill 2025\nDefined terms\npage 356\nsafety option...................................................................................................... 136\nscreening procedure ......................................................................................... 3(1)\nseal ................................................................................................................... 3(1)\nsexual abuse ..................................................................................................... 3(1)\nsexual offence .................................................................................................. 3(1)\nsexual offence complainant.............................................................................. 3(1)\nshipping document ....................................................................................... 365(1)\nspecial hearing .................................................................................................. 261\nspecial procedure for giving evidence.......................................................... 228(1)\nspecial witness .................................................................................... 3(1), 228(1)\nspecified ....................................................................................................... 412(1)\nstamped .......................................................................................................... 62(1)\nstatement admissibility regulations ...................................................... 239, 241(1)\nsuperior court ................................................................................................... 3(1)\nsupport animal.............................................................................................. 232(1)\nsupporting affidavit ......................................................................... 164(1), 167(1)\nsupport person .............................................................................................. 164(1)\ntendency evidence ............................................................................................ 3(1)\ntendency rule .................................................................................................... 3(1)\ntendency sexual interest or act ..................................................................... 114(6)\nthing ............................................................................................................. 360(1)\nthird party....................................................................................................... 98(1)\ntraditional laws and customs ............................................................................ 3(1)\ntransitional matter ........................................................................................ 411(1)\ntribunal ............................................................................................................. 3(1)\nvehicle .......................................................................................................... 365(1)\nvessel............................................................................................................ 365(1)\nvideo link ......................................................................................................... 3(1)\nvideo link separation order................................................................... 275, 276(1)\nvideo link separation procedure ....................................................................... 3(1)\nvisual recording............................................................................................ 228(1)\nWA tribunal ..................................................................................................... 3(1)\nwitness ............................................................................................................. 3(1)\nwitness assessment .......................................................................... 228(1), 289(1)\nwitness intermediary .................................................................................... 228(1)\nwitness intermediary service ............................................................................. 284\nworking day ................................................................................................. 348(1)","sortOrder":33}],"analysis":{"flash_summary":{"complexity_score":9,"scope_assessment":{"changed":true,"description":"Yes. The Bill goes well beyond a simple restatement of admissibility rules. It folds in detailed procedural law and operational regulation: (1) an extensive witness‑assistance architecture (Part 7) that prescribes when and how evidence may be pre‑recorded, given by video link or with intermediaries (see sections 228, 261–276, 284–296); (2) a statutory admissibility pathway for police‑created recorded statements and recorded interviews (sections 238–246 and 251–256 plus Criminal Investigation Act amendments, ss.124A–124D); (3) a new regime restricting possession, copying and publication of recordings and imposing criminal penalties (sections 299–307, 306, 400, 401); (4) affirmative statutory protection and a leave test for counselling communications and journalist informant privilege (Part 4 Divisions 3–4, sections 164–176, 178–184); and (5) numerous cross‑Act consequential amendments. Mechanically this expands the law of evidence into operational, disclosure and information‑management domains (police storage and retention obligations, magistrates’ and prosecutors’ disclosure practices, and court supervision of publication). Those changes concentrate benefits (vulnerable witnesses, evidentiary efficiency) and create diffuse costs (court and agency resourcing, administrative compliance) and potential tensions with defence access to evidence that will be resolved in detailed practice and by judicial exercise of the many new discretions (see ss. 159, 169, 201–206, and the Criminal Investigation Act amendments 124A–124D)."},"complexity_factors":["Very long instrument: multiple Parts (12), many Divisions and Subdivisions covering substantive law, procedure, proof, privileges, special witness regimes and transitional/consequential amendments","Large number of defined terms in interpretation and throughout (extensive 'Defined terms' list and s.3 definitions across many concepts: special witness, recorded statement/interview, protected recording, etc.)","Extensive cross‑referencing within the Bill (e.g. Parts 3, 4 and 7 interlock) and to other statutes (Criminal Investigation Act 2006, Children and Community Services Act 2004, many more in Part 12)","Multiple, nested exceptions and carve‑outs (e.g. hearsay/opinion/tendency rules contain numerous conditional exceptions and competence/availability qualifications)","Heavy procedural conditionality (notice periods, time limits and prerequisites: e.g. sections 81, 116, 324, 361, and many rules of court/regulations delegated)","Numerous judicial discretions and mandatory duties interleaved (many \"may\" and \"must\" provisions; courts must weigh public interest, probative value, prejudice — see ss. 159, 169, 201–206)","New special procedures with operational dependencies (pre‑recording, video‑link separation, screening, witness intermediaries) create cross‑cutting technical, evidentiary and disclosure rules (Part 7)","Significant publication and possession offences tied to protected recordings (criminal penalties) creating interaction between evidence rules and media/communications law (ss. 299–306, 401)","Comprehensive transitional and consequential amendment schedule affecting dozens of other Acts (Part 11 & Part 12), increasing interpretive complexity at the point of commencement"],"plain_english_summary":"**What this Bill does (mechanically)\n\n- Replaces and modernises the State's evidence law by repealing the Evidence Act 1906 and enacting the Evidence Act 2025 (s. 386 and whole text).  It consolidates rules on which evidence may be put before courts, who may be compelled to give it, and how it is proved (Parts 1–5, 8–9).  \n\n- Introduces an extensive witness‑assistance and special‑procedure regime (Part 7).  That Part creates: special‑witness status, mandatory or discretionary use of pre‑recordings, video‑link separation and screening, recorded statements and recorded interviews as evidence in chief (sections 228, 261–274, 238–256, 251–259), witness intermediaries (284–292), communicators and support persons/animals (231–233), and ground‑rules hearings (295–297).\n\n- Reformulates admissibility rules: new hearsay, opinion, tendency/ coincidence, credibility and character rules, and detailed notice requirements (Part 3, e.g. sections 72–79, 90–95, 113–118, 119–127).  The Act follows the modern uniform evidence model in many places and preserves or modifies older special exceptions.\n\n- Re‑casts privileges and confidentiality protections (Part 4): updated client/legal‑advice and litigation privilege (148–156), professional confidant privilege (158–163), special protection for counselling communications about sexual offences (164–176), journalist privilege about informants (178–184), and self‑incrimination / disclosure certificates (185–191).\n\n- Sets out court powers to exclude or limit evidence (Part 5, sections 201–206), and defines many proof‑facilitation mechanisms (Part 9) — judicial notice, presumptions about documents and electronic communications, certificates for convictions and forensic biology (sections 327–363, 356–363).\n\n- Regulates access to and use of recordings of evidence (Part 7 Division 10) and creates criminal penalties and suppression powers for unlawful copying, publishing or altering of protected recordings (sections 299–307; publication prohibitions carry significant penalties).\n\n- Enables inter‑jurisdictional video/audio links and assistance to/from foreign or other Australian courts, and extra‑territorial examination orders (Part 6, sections 207–226, 216–224).\n\n- Repeats transitional and consequential amendment machinery: repeal of the old Act, savings and transitional provisions (Part 11), and amendments across many other Acts (Part 12).\n\nOfficial rationale the Bill states\n\n- The Bill modernises and consolidates evidence law (including alignment with parts of the uniform evidence law), provides clearer rules for admissibility and proof, facilitates electronic and extra‑territorial evidence processes, and strengthens protections and supports for vulnerable witnesses (see notes to s. 3 and the structure of Parts 7 and 4).\n\nTesting those rationales against concrete mechanisms, costs and trade‑offs\n\n- Who pays and who does the work: the State (police, courts, prosecution services) take on material new tasks and costs — recording and retaining recorded statements and interviews, providing secure storage, operating video‑link facilities, training staff, and running witness‑intermediary services (see sections 124D, 299–305, 284–292, 261–269).  Courts gain broad discretionary powers to order special procedures or to limit access (e.g. sections 261–263, 276–279, 159(1)–(4)).\n\n- Compliance and administrative burden: police and prosecution must follow specified admissibility steps for recorded statements and interviews (e.g. sections 240–246, 252–256), including giving copies or transcripts to accused/legal counsel (sections 242, 254) unless restricted by protected‑recording rules (sections 299–307).  Those steps create operational requirements (training, equipment, custody chains) and detailed notice deadlines (see sections 81, 116, 324, 361).\n\n- Restrictions on disclosure and defence access: the Bill creates tightly controlled categories of \"protected recordings\" and limits who may possess, copy or publish them (sections 299–307).  In some cases, accused persons are expressly not entitled to possession of the relevant recordings; the prosecutor may instead serve copies on legal counsel or provide transcripts with controlled access (see s. 137B insertion and Evidence Act cross‑references: 236(10), 242(3), 254(3), 300(1), 400(2)).  Mechanically, the Bill shifts some document‑access decisions from routine disclosure to judicial discretion (sections 159, 169, 308).  That can speed presentation of vulnerable‑witness evidence but narrows direct access to original material, creating a tension between protection and the defence right to examine evidence.\n\n- Concentrated beneficiaries and diffuse costs: benefits are concentrated among vulnerable witnesses (children, sexual‑assault complainants, those with disabilities, and family‑violence victims) who gain procedural support, and among prosecutors who will be able to tender recorded evidence in‑chief under specified conditions (Parts 7 and Divs 4–5).  Costs are borne by taxpayers and by defendants (greater procedural complexity and potentially more expensive pre‑trial preparation), and by organisations that must change record‑keeping practices (regulatory and training costs).\n\n- Bureaucratic discretion and judicial gatekeeping: the Bill gives broad judicial discretion to admit, exclude or limit evidence (s. 201–206, s. 159(1)–(4), s.169).  That centralises decision-making in courts and creates significant gatekeeping roles (e.g. leave to disclose counselling communications, s. 169; journalist‑identity exclusion orders, s. 181).  These are predictable legal trade‑offs: proportional protection vs risk of inconsistent exercise in different courts.\n\n- Implementation risk and opportunity cost: operationalising the Bill requires investment in recording facilities, secure storage, accredited witness intermediary services, and training for police, lawyers and judges.  If those investments are delayed or under‑resourced there is a risk of uneven application and litigation over compliance with admissibility steps (e.g. s. 241 and 253 on admissibility regulations).\n\nWhat changes people’s behaviour and who decides?\n\n- Police: encouraged (and regulated) to create recorded statements for use in evidence (Criminal Investigation Act amendments, ss. 124A–124D).  They must retain recordings (s. 124D) and follow admissibility requirements (s. 240, s. 241 regs).\n\n- Prosecutors: must follow notice and disclosure rules and may use recorded statements/interviews as evidence in chief under stated conditions (s. 240, 252).  They will also decide whether to seek leave to disclose counselling communications (ss. 167–171).\n\n- Courts and judges: given wide powers to require special procedures, to exclude or admit evidence on public‑interest or privilege grounds (e.g. ss. 159, 169, 181, 201–206), and to control disclosure of protected recordings (ss. 299–308).\n\n- Defence and accused: face new rules about how they access recordings and how they may cross‑examine; there are specific protections where accused are unrepresented (see ss. 56–57) and procedural safeguards for jury directions (e.g. ss. 248, 259, 273, 283).\n\nConcrete legal hooks you will want to watch first\n\n- Hearsay/first‑hand restriction and exceptions (ss. 72–80) and notice obligations (s. 81); recorded statements/interviews admissibility tests (ss. 238–246, 251–259, and associated regulations at ss. 241 and 253); counselling communications protections and leave tests (ss. 164–174, 167–171); and the new protected‑recording rules and publication offences (ss. 299–307, 306, 401).\n\nBottom line (analyst’s précis)\n\nMechanically the Bill is a full replacement of the State’s evidence statute that modernises admissibility rules, builds in extensive support and special procedures for vulnerable witnesses, tightens protections around certain communications and recordings, and embeds many procedural obligations on police and prosecutors.  The trade‑offs are clear and concrete: improved accessibility and protection for vulnerable witnesses and greater use of recorded evidence versus higher state and administrative costs, added compliance burdens, and narrower immediate access to certain original materials for accused persons — all mediated through substantial judicial discretion (see the cited sections above)."},"summary":{"status_summary":"The Evidence Bill 2025 has passed the Western Australian Legislative Assembly and received royal assent; most provisions will come into effect on a day or days to be proclaimed, while Part 1 and certain consequential amendments commence on royal assent.","complexity_score":10,"likely_questions":["When will the majority of the Act commence, and will there be a staged rollout?","How does the new Act affect proceedings that started before but continue after the commencement date?","What are the new requirements for admitting a recorded statement as evidence in chief, and who can create one?","How does the privilege for counselling communications in sexual offence cases work, and what does an applicant need to prove to obtain leave?","Can an accused still remain silent without adverse inference, and what are the new rules on commenting on silence?","What are the practical implications for businesses that routinely rely on business records as evidence?","How will the witness intermediary service be established and funded, and which witnesses are entitled to an assessment?"],"complexity_factors":["Bill spans over 350 pages with 12 parts, 492 sections, and extensive schedules","Replaces a long-standing Act with entirely new codified evidence law, requiring complete relearning by practitioners","Contains multiple interlinked divisions on privileges, witness protections, and evidentiary exceptions with cross-references","Introduces novel mechanisms (recorded statements, witness intermediaries, pre-recording procedures) with accompanying regulations yet to be drafted","Transitional provisions are detailed and apply differently depending on when proceedings commenced or hearings occurred","Consequential amendments touch over 30 other Acts, creating complex interactions"],"plain_english_summary":"The Evidence Bill 2025 repeals WA’s Evidence Act 1906 and replaces it with a modern, comprehensive evidence code governing admission, use and exclusion of evidence across state courts. It updates hearsay, opinion, credibility, privilege regimes and introduces broad new witness-assistance measures—recorded evidence, video-link separation, intermediaries and restricted access to protected recordings—aimed at reducing trauma in sexual, family-violence and child-witness cases.\n\nThe reform imposes new procedural steps for prosecutors, broader judicial discretion, transitional protections for existing orders, and commences on proclamation."}},"importantCases":[],"_links":{"self":"/api/acts/evidence-bill-2025","history":"/api/acts/evidence-bill-2025/history","analysis":"/api/acts/evidence-bill-2025/analysis","conflicts":"/api/acts/evidence-bill-2025/conflicts","importantCases":"/api/acts/evidence-bill-2025/important-cases","documents":"/api/acts/evidence-bill-2025/documents"}}