{"id":"F2018L01705","name":"Evidence Regulations 2018","slug":"evidence-regulations-2018","collection":"legislative_instrument","jurisdiction":"commonwealth","status":"in_force","isInForce":true,"actNumber":null,"makingDate":null,"administeringDepartment":null,"currentVersion":{"id":98369,"registerId":"commonwealth-F2018L01705-current","compilationNumber":null,"startDate":"2026-04-02","status":"InForce","reasons":null,"registeredAt":null},"sections":[{"sectionNumber":"1","sectionType":"section","heading":"Name","content":"#### 1 Name\n\n This instrument is the Evidence Regulations 2018.","sortOrder":0},{"sectionNumber":"3","sectionType":"section","heading":"Authority","content":"#### 3 Authority\n\n This instrument is made under the Evidence Act 1995.","sortOrder":1},{"sectionNumber":"5","sectionType":"section","heading":"Definitions","content":"#### 5 Definitions\n\n (1) In this instrument:\n\n> Act means the Evidence Act 1995.\n\n> address includes a private, business or official address.\n\n> notice of previous representation means a notice given under subsection 67(1) of the Act.\n\n> notifying party, in relation to a notice, means the person giving the notice.\n\n (2) In this instrument, a reference to a Form by number is a reference to the Form of that number set out in Schedule 1.\n\n> Note: Section 25C of the Acts Interpretation Act 1901 provides that strict compliance with a form is not required and substantial compliance is sufficient.","sortOrder":2},{"sectionNumber":"6","sectionType":"section","heading":"Exceptions to hearsay rule—notices of previous representations","content":"#### 6 Exceptions to hearsay rule—notices of previous representations\n\n (1) This section is made for the purposes of section 67 of the Act.\n (2) A notice of previous representation must state:\n (a) subject to subsection (6), the substance of evidence of a previous representation that the notifying party intends to adduce; and\n (b) the substance of all other relevant representations made by the person who made that previous representation, so far as they are known to the notifying party; and\n (c) particulars of:\n (i) the date, time, place and circumstances at or in which each of the representations mentioned in paragraph (a) or (b) was made; and\n (ii) the names of the persons by whom, and the persons to whom, each of those representations was made; and\n (iii) in a civil proceeding—the address of each person so named;\n so far as they are known to the notifying party.\n (3) If a notifying party intends to rely on any of paragraphs 63(2)(a) or (b), 65(2)(a), (b), (c) or (d), 65(3)(a) or (b) or 65(8)(a) or (b) of the Act, the party’s notice of previous representation must state particulars of the facts on the basis of which it is alleged that the person who made a representation referred to in the notice is not available to testify concerning the fact to be proved by adducing evidence of that representation.\n (4) If a notifying party intends to rely on paragraph 64(2)(a) or (b) of the Act, the party’s notice of previous representation must state particulars of the facts that the party will rely on to establish the grounds specified in subsection 64(2) of the Act.\n (5) If a notice of previous representation refers to a previous representation that is in writing:\n (a) a copy of the document, or of the relevant portion of the document, containing the representation must be attached to the notice; and\n (b) the notice must identify the document unless:\n (i) a copy of the document is attached to the notice; and\n (ii) the identity of the document is apparent on the face of the copy.\n (6) Where a copy of a document, or of a portion of a document, is attached to a notice it is a sufficient compliance for the purposes of paragraph (2)(a) to specify in the notice, or in the copy of a document or portion of a document attached to the notice, the representation evidence of which the notifying party intends to adduce.\n (7) On the application of a party in a criminal proceeding, the court may make an order directing the notifying party to disclose the address of any person named in a notice of previous representation.\n (8) The direction may be given on the terms the court considers appropriate.","sortOrder":3},{"sectionNumber":"7","sectionType":"section","heading":"The tendency rule and the coincidence rule—form of notices","content":"#### 7 The tendency rule and the coincidence rule—form of notices\n\n (1) This section is made for the purpose of section 99 of the Act.\n (2) A notice given under subsection 97(1) of the Act (relating to the tendency rule) must state:\n (a) the substance of the evidence of the kind referred to in that subsection that the party giving the notice intends to adduce; and\n (b) if that evidence consists of, or includes, evidence of the conduct of a person, particulars of:\n (i) the date, time, place and circumstances at or in which the conduct occurred; and\n (ii) the names of each person who saw, heard or otherwise perceived the conduct; and\n (iii) in a civil proceeding—the address of each person so named;\n so far as they are known to the notifying party.\n (3) A notice given under subsection 98(1) of the Act (relating to the coincidence rule) must state:\n (a) the substance of the evidence of the occurrence of 2 or more events that the party giving the notice intends to adduce; and\n (b) particulars of:\n (i) the date, time, place and circumstances at or in which each of those events occurred; and\n (ii) the names of each person who saw, heard or otherwise perceived each of those events; and\n (iii) in a civil proceeding—the address of each person so named;\n so far as they are known to the notifying party.\n (4) On the application of a party in a criminal proceeding, the court may make an order directing the notifying party to disclose the address of any person named in a notice mentioned in this section.\n (5) The direction may be given on the terms the court considers appropriate.","sortOrder":4},{"sectionNumber":"8","sectionType":"section","heading":"Privilege against self‑incrimination—form of certificate","content":"#### 8 Privilege against self‑incrimination—form of certificate\n\n (1) A certificate under section 128 or 128A of the Act may be in accordance with Form 1.\n (2) A certificate is not liable to be called into question by reason of its non‑compliance with Form 1.","sortOrder":5},{"sectionNumber":"9","sectionType":"section","heading":"State and Territory provisions about certificates for subsection 128(12) of the Act","content":"#### 9 State and Territory provisions about certificates for subsection 128(12) of the Act\n\n For the purposes of paragraph 128(13)(b) of the Act, the following provisions are prescribed for the purposes of subsection 128(12) of the Act:\n (a) section 128 of the Evidence Act 2008 (Vic);\n (b) section 11 of the Evidence Act 1906 (WA);\n (c) section 128 of the Evidence Act 2001 (Tas.);\n (d) section 128 of the Evidence Act 2011 (ACT);\n (e) section 128 of the Evidence (National Uniform Legislation) Act 2011 (NT).","sortOrder":6},{"sectionNumber":"10","sectionType":"section","heading":"Fingerprint evidence of identity—affidavits by State or Territory police officers","content":"#### 10 Fingerprint evidence of identity—affidavits by State or Territory police officers\n\n For the purposes of paragraph 179(1)(a) of the Act, Form 2 is prescribed.","sortOrder":7},{"sectionNumber":"11","sectionType":"section","heading":"Fingerprint evidence of identity—affidavits by Australian Federal Police officers","content":"#### 11 Fingerprint evidence of identity—affidavits by Australian Federal Police officers\n\n For the purposes of paragraph 180(1)(a) of the Act, Form 3 is prescribed.","sortOrder":8},{"sectionNumber":"12","sectionType":"section","heading":"State and Territory laws for certain definitions in the Act","content":"#### 12 State and Territory laws for certain definitions in the Act\n\n (1) For the purposes of the definitions of Australian lawyer, Australian legal practitioner and Australian practising certificate in Part 1 of the Dictionary at the end of the Act, the following laws are specified:\n (a) the Legal Profession Uniform Law Application Act 2014 (NSW);\n (b) the Legal Profession Uniform Law Application Act 2014 (Vic);\n (c) the Legal Profession Act 2007 (Qld);\n (d) the Legal Profession Act 2008 (WA);\n (e) the Legal Practitioners Act 1981 (SA);\n (f) the Legal Profession Act 2007 (Tas.);\n (g) the Legal Profession Act 2006 (ACT);\n (h) the Legal Profession Act 2006 (NT).\n (2) For the purposes of the definition of Australian‑registered foreign lawyer in Part 1 of the Dictionary at the end of the Act, the following laws are specified:\n (a) the Legal Profession Uniform Law Application Act 2014 (NSW);\n (b) the Legal Profession Uniform Law Application Act 2014 (Vic);\n (c) the Legal Profession Act 2007 (Qld);\n (d) the Legal Profession Act 2008 (WA);\n (e) the Legal Profession Act 2007 (Tas.);\n (f) the Legal Profession Act 2006 (ACT);\n (g) the Legal Profession Act 2006 (NT).","sortOrder":9},{"sectionNumber":"Form 1—Certificate under section 128 or ","sectionType":"part","heading":"Form 1—Certificate under section 128 or 128A of the Evidence Act 1995","content":"## Form 1—Certificate under section 128 or 128A of the Evidence Act 1995\n\nNote: See subsection 8(1).\n\n\\[Set out heading to action or matter\\]\n\nCERTIFICATE UNDER SECTION 128 OR 128A OF THE \nEVIDENCE ACT 1995\n\n This Court certifies under section 128\\*/128A\\* of the Evidence Act 1995 of the Commonwealth that evidence in these proceedings by \\[state name of witness\\] on \\[state date or dates\\], a record of which is attached to this certificate\\*, is evidence\\*/information\\* to which subsection 128(7)\\*/128A(8)\\* of that Act applies.\n \\[A transcript, or other record, of the evidence is to be attached to this certificate, and duly authenticated by the court or its proper officer.\\]\n\nDated:\n\n L.S.\n (affix seal)\n\n| Judge or magistrate of the Court |\n| -------------------------------- |\n\n\\*Delete if not applicable\n\n Note: Subsection 128(7) of the Evidence Act 1995 provides as follows:\n\n(7) In any proceeding in an Australian court:\n\n (a) evidence given by a person in respect of which a certificate under this section has been given; and\n (b) evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence;\n\ncannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence.\n\n Subsection 128A(8) of the Evidence Act 1995 provides as follows:\n\n(8) In any proceeding in an Australian court:\n\n (a) evidence of information disclosed by a relevant person in respect of which a certificate has been given under this section; and\n (b) evidence of any information, document or thing obtained as a direct result or indirect consequence of the relevant person having disclosed that information;\n\ncannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence concerned.","sortOrder":10},{"sectionNumber":"Form 2—Affidavit of member of State or T","sectionType":"part","heading":"Form 2—Affidavit of member of State or Territory police force concerning fingerprints","content":"## Form 2—Affidavit of member of State or Territory police force concerning fingerprints\n\nNote: See section 10.\n\nSection 179 of the Evidence Act 1995\n\nAffidavit of member of State or Territory police force concerning fingerprints\n\n> Note: \\[Set out heading to action or matter\\]\n\n> Note: I, \\[name of deponent\\] of \\[address of deponent\\], a member of the police force of \\[State or Territory\\] make oath and say\\*/affirm\\*:\n\n> Note: 1. I am a fingerprint expert for the police force of \\[State or Territory\\].\n\n> Note: 2. I have examined the fingerprint form marked for identification with the letter ‘A’.\n\n> Note: 3. I have compared the fingerprints shown on that form with the fingerprints shown on the fingerprint form in the records held by the police force of \\[State or Territory\\] showing the fingerprints of \\[name of person and alias, if any\\].\n\n> Note: 4. The fingerprints on those forms were compared and in my opinion were made by the same source.\n\n> Note: 5. According to the records of the police force of \\[State or Territory\\], which I believe to be accurate, \\[name of person\\] was convicted in that State\\*/Territory\\* of the following offences:\n\n> Note: 6. Annexed to this affidavit and marked with the letters \\[insert an alphabetical sequence of letters, commencing at ‘B’, corresponding to the number of annexures\\], are certified copies or certificates of conviction for each of those convictions.\n\n> Note: 7. From an examination of the records referred to above, I believe that the person referred to in each annexed certified copy or certificate as having been convicted of the offence stated in it is the person whose fingerprints are shown on the fingerprint forms referred to in paragraph 3 of this affidavit.\n\n> Note: SWORN\\*/AFFIRMED\\*\n\n by the deponent at \\[place\\]\n this day\n of \\[month and year\\] .\n Before me:\n\n| (signature) | | (signature) |\n| ------------------------------------------------------------------------------------------------------------------------- | --- | ----------- |\n| | | |\n| A Justice of the Peace*/notary public*/lawyer*/person authorised to take affidavits in the Australian Capital Territory*. | | Deponent |\n| *delete as appropriate | | |","sortOrder":11},{"sectionNumber":"Form 3—Affidavit of member of Australian","sectionType":"part","heading":"Form 3—Affidavit of member of Australian Federal Police concerning fingerprints","content":"## Form 3—Affidavit of member of Australian Federal Police concerning fingerprints\n\nNote: See section 11.\n\nAffidavit of member of Australian Federal Police concerning fingerprints\n\n \\[Set out heading to action or matter\\]\n I, \\[name of deponent\\] of \\[address of deponent\\], a member\\*/special member\\*/staff member\\* of the Australian Federal Police of, make oath and say\\*/affirm\\*:\n 1.I am a fingerprint expert for the Australian Federal Police.\n 2.I have examined the fingerprint form marked for identification with the letter ‘A’.\n 3.I have compared the fingerprints shown on that form with the fingerprints shown on the fingerprint form in the records held by the Australian Federal Police showing the fingerprints of \\[name of person and alias, if any\\].\n 4.The fingerprints on those forms were compared and in my opinion were made by the same source.\n 5.According to the records of the Australian Federal Police, which I believe to be accurate, \\[name of person\\] was convicted of the following offences against a law of the Commonwealth:\n 6.Annexed to this affidavit, and marked with the letters \\[insert an alphabetical sequence of letters, commencing at ‘B’, corresponding to the number of annexures\\], are certified copies or certificates of conviction for each of those convictions.\n 7.From an examination of the records referred to above, I believe that the person referred to in each annexed certified copy or certificate as having been convicted of the offence stated in it is the person whose fingerprints are shown on the fingerprint forms referred to in paragraph 3 of this affidavit.\n\n> Note: SWORN\\*/AFFIRMED\\*\n\n by the deponent at \\[place\\]\n this day\n of \\[month and year\\] .\n Before me:\n\n```html\n

(signature)

(signature)

A Justice of the Peace*/notary public*/lawyer*/person authorised to take affidavits in the Australian Capital Territory*.

Deponent

*delete as appropriate

\n```","sortOrder":12}],"analysis":{"kimi_summary":{"_metrics":{"source":"grok-batch-everything"},"content_quality":"ok","complexity_score":6,"scope_assessment":{"changed":false,"description":"The regulations have not changed the scope of the original Evidence Act 1995. They provide supporting mechanisms for notice giving, forms for certificates and affidavits, and definitions by reference to state laws, all of which align with and facilitate the Act's original intent regarding admissibility of evidence and procedural fairness."},"complexity_factors":["Extensive cross-referencing to specific paragraphs in sections 63, 64, 65, 67, 97, 98, 99, 128, 179 and 180 of the Evidence Act 1995","Different requirements depending on whether the proceeding is civil or criminal","Conditional logic in notice content requirements (e.g. if relying on particular subsections then additional particulars required)","Detailed specifications for attached documents and identification of written representations","Inclusion of prescribed forms that must be followed with notes on substantial compliance","Separate provisions for State/Territory and Federal police fingerprint affidavits"],"plain_english_summary":"**The Evidence Regulations 2018** provide the practical 'how-to' details for some of the more technical parts of the Evidence Act 1995.\n\nIn plain terms, if you want to use certain kinds of evidence in a court case, you must give the other side a proper notice first. These regulations explain exactly what information must be in those notices. They cover:\n\n- Notices about using old statements or representations made by people who might not be able to testify (the hearsay rule exceptions)\n- Notices about using evidence that a person has a tendency to behave in a particular way\n- Notices about using evidence that two or more events happened in similar circumstances (coincidence evidence)\n\nThe regulations also set out the exact wording and format for special certificates that protect witnesses from their own evidence being used against them later. Additionally, they provide standard affidavits for police experts to prove that fingerprints match a person who has previous convictions.\n\nFinally, they update the list of state and territory laws that define who counts as an 'Australian lawyer' under the federal Evidence Act.\n\nThis helps make sure court cases are fair, everyone knows what evidence is coming, and technical rules are followed consistently across Australia."},"flash_summary":{"complexity_score":3,"scope_assessment":{"changed":false,"description":"The Regulations implement and prescribe forms and particulars required by specified provisions of the Evidence Act 1995 (each relevant regulation states it is made for the purpose of a particular section of the Act: see sections 6 and 7). They set procedural and evidentiary detail (forms, required particulars, and limited court powers to order disclosure) but do not, on their face, expand or narrow the substantive admission rules of the Act. The instrument therefore clarifies procedural scope rather than changing the substantive scope of the Act."},"complexity_factors":["Primarily procedural requirements tied to specific sections of the Evidence Act (clear cross‑references: sections 6 and 7 state they are made for the purposes of particular Act provisions).","Multiple prescribed forms (Form 1, Form 2, Form 3) with non‑fatal strictness for one certificate (section 8(2)).","Several recurring particular requirements (dates, times, places, names, addresses) that create checklist‑style burdens (sections 6(2), 7(2)–(3)).","Court discretion to order address disclosure in criminal proceedings introduces case‑by‑case variability (sections 6(7)–(8), 7(4)–(5)).","References to and specification of State/Territory statutes for definitions (section 12) require cross‑jurisdictional mapping but are limited in number."],"plain_english_summary":"What this instrument does (mechanically)\n\n- Prescribes how certain procedural evidence rules under the Evidence Act 1995 must be put in writing and what those written notices or certificates must contain:\n - Notices that rely on previous representations (the hearsay exceptions) must set out the substance of the representation, other relevant representations known to the notifying party, dates/times/places/circumstances, who made and who received each representation, and (in civil proceedings) addresses of persons named. Copies of written previous representations must be attached when the notice refers to a written representation (see section 6(2)–(6)).\n - Notices that give notice under the tendency rule or the coincidence rule must state the substance of the intended evidence and give particulars including dates/times/places/circumstances and the names of persons who perceived the conduct or events; in civil proceedings those persons’ addresses must also be stated if known (see section 7(2)–(3)).\n - A court certificate under section 128 or 128A of the Evidence Act (privilege against self‑incrimination) may be in Form 1, but non‑compliance with the form does not of itself invalidate the certificate (see section 8(1)–(2) and Form 1).\n - Prescribes specific affidavit templates for fingerprint identity evidence: Form 2 for State/Territory police officers (for use with paragraph 179(1)(a) of the Act) and Form 3 for Australian Federal Police officers (for paragraph 180(1)(a)) (see sections 10–11 and Forms 2–3).\n - Specifies which State and Territory laws count for definitions in the Act’s Dictionary for terms such as Australian lawyer, Australian legal practitioner, Australian practising certificate and Australian‑registered foreign lawyer (see section 12(1)–(2)).\n - Gives courts discretion to order disclosure of the addresses of persons named in the notices in criminal proceedings and permits the court to attach appropriate terms to such orders (see sections 6(7)–(8) and 7(4)–(5)).\n\nWho this affects\n\n- Notifying parties in proceedings who intend to rely on hearsay exceptions (previous representations), tendency evidence or coincidence evidence. Those parties must prepare notices with the particulars the Regulations require (see sections 6 and 7). \n- Parties in civil proceedings have an added requirement that addresses of persons named in notices be stated if known (see sections 6(2)(c)(iii), 7(2)(b)(iii), 7(3)(b)(iii)).\n- Courts, which are given power to order disclosure of addresses of persons named in notices in criminal proceedings and to set the terms of such disclosure (see sections 6(7)–(8), 7(4)–(5)).\n- Members of State/Territory police forces and Australian Federal Police who give fingerprint‑identity affidavits, because the Regulations prescribe the affidavit texts (see sections 10–11 and Forms 2–3).\n- Lawyers and practitioners whose definitions are tied to specified State/Territory laws (see section 12).\n\nWhy it matters (official purpose and practical implications)\n\n- Officially, the Regulations are made to give effect to specific sections of the Evidence Act 1995 (the text repeatedly states each provision is “made for the purposes of” the relevant Act provision: see sections 6 and 7). They standardise the form and required particulars so courts and parties have predictable information when evidence of these kinds is relied on.\n\nPractical implications, incentives and burdens (source‑grounded)\n\n- Compliance burden on notifying parties: Notices must include substantive detail (substance of representations or events, dates/times/places/circumstances, names and, in civil proceedings, addresses) and, where the representation is written, copies of the document must be attached or identified (see sections 6(2)–(6), 7(2)–(3)). Preparing and assembling those particulars and attachments imposes time and file‑preparation costs on the party giving notice.\n\n- Tactical and private‑choice incentives: Requiring detailed notices and attachments may change parties’ decisions about whether to rely on hearsay, tendency or coincidence evidence because reliance triggers the information‑production obligations set out in sections 6 and 7.\n\n- Privacy and disclosure trade‑off: In criminal proceedings, the Regulations permit courts to order disclosure of the addresses of persons named in notices and to impose terms the court considers appropriate (see sections 6(7)–(8), 7(4)–(5)). That creates a mechanism by which parties or courts may obtain contact details that otherwise were omitted, balancing disclosure needs against any protection the court attaches when making the order.\n\n- Administrative and resource effects on police and courts: Police officers giving fingerprint affidavits must use the prescribed affidavit content (Forms 2 and 3). Courts are asked to authenticate and may attach records to certificates under s.128/128A (see Form 1 and section 8); courts also exercise discretion to order disclosure under sections 6 and 7. Those duties consume official time and may require administrative handling of attachments and sealed certificates.\n\n- Legal‑definition certainty: By specifying State and Territory statutes for terms in the Act’s Dictionary, the Regulations clarify which local laws determine who counts as an Australian lawyer, legal practitioner, practising certificate holder, or registered foreign lawyer (see section 12(1)–(2)). That reduces uncertainty about which domestic regimes govern those definitions for application of the Act.\n\nImplementation risk and discretion points\n\n- The Regulations leave factual sufficiency and many decisions to parties and courts: e.g., how much “substance” is sufficient in a notice (sections 6(2)(a), 7(2)(a), 7(3)(a)) and whether to order disclosure of addresses (sections 6(7)–(8), 7(4)–(5)). The Rules require particulars but do not set a rigid quantitative threshold for “substance,” which leaves room for judicial assessment.\n\n- Non‑fatal form compliance for s.128 certificates: A certificate “may be in accordance with Form 1,” and failure to comply exactly with Form 1 does not itself subject the certificate to question (section 8(1)–(2)). That reduces the risk that strict template errors will invalidate the protective effect claimed in s.128/128A.\n\nConcise summary of who pays, who decides and behaviour changes (source‑grounded)\n\n- Who pays (bears the upfront cost): notifying parties and parties who must prepare and attach documents to notices; police officers preparing affidavit material (see sections 6(2)–(6), 10–11 and Forms 2–3).\n- Who decides: courts decide whether to order additional disclosure (addresses) and may set terms for disclosure; notifying parties decide whether to rely on the Act provisions and must satisfy the notice content requirements (see sections 6(7)–(8), 7(4)–(5)).\n- What behaviour changes: parties may change evidentiary strategy to avoid or accept the cost of preparing detailed notices; police and courts will follow prescribed affidavit/certificate forms where applicable (see sections 6, 7, 8, 10–11)."}},"importantCases":[],"_links":{"self":"/api/acts/evidence-regulations-2018","history":"/api/acts/evidence-regulations-2018/history","analysis":"/api/acts/evidence-regulations-2018/analysis","conflicts":"/api/acts/evidence-regulations-2018/conflicts","importantCases":"/api/acts/evidence-regulations-2018/important-cases","documents":"/api/acts/evidence-regulations-2018/documents"}}