Sch 1Oaths and affirmations

Schedule 1 Oaths and affirmations (see s 21 (4) and s 22 (3)) Oaths by witnesses name a god recognised by the person’s religion) that the evidence I give will be the truth, the whole truth and nothing but the truth. Oaths by interpreters name a god recognised by the person’s religion) that I will well and truly interpret the evidence that will be given and do all other matters and things that are required of me in this case to the best of my ability. Oaths by intermediaries name a god recognised by the person’s religion) that I will impartially and faithfully inform the court about the witness’s communication needs and communicate questions and answers, make true explanation of all matters and things that are required of me, and do all other matters and things that are required of me in this case, to the best of my ability. Schedule 1 Oaths and affirmations Affirmations by witnesses I solemnly and sincerely declare and affirm that the evidence I give will be the truth, the whole truth and nothing but the truth. Affirmations by interpreters I solemnly and sincerely declare and affirm that I will well and truly interpret the evidence that will be given and do all other matters and things that are required of me in this case to the best of my ability. Affirmations by intermediaries I solemnly and sincerely declare and affirm that I will impartially and faithfully inform the court about the witness’s communication needs and communicate questions and answers, make true explanation of all matters and things that are required of me, and do all other matters and things that are required of me in this case, to the best of my ability. (see s 3) Note 1 The Legislation Act contains definitions and other provisions relevant to this Act. Note 2 For example, the Legislation Act, dict, pt 1, defines the following terms: • Australian statistician • child • Corporations Act • domestic partner (see s 169 (1)) • entity • exercise (a function) • external territory • fail • foreign country • function • gazette • government printer • indictable offence (see s 190) • individual • Minister (see s 162) • office • parent • police officer • territory law. ACT court means the Supreme Court or Magistrates Court, and includes an entity that, in exercising a function under a territory law, is required to apply the laws of evidence. Note This definition differs from the definition in the Commonwealth Act. admission means a previous representation that is— (a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding); and (b) adverse to the person’s interest in the outcome of the asserted fact, for part 3.2 (Hearsay)—see section 59. associated defendant, in relation to a defendant in a criminal proceeding, means a person against whom a prosecution has been started, but not yet completed or terminated, for— (a) an offence that arose in relation to the same events as those in relation to which the offence for which the defendant is being prosecuted arose; or (b) an offence that relates to, or is connected with, the offence for which the defendant is being prosecuted. Australia includes the external territories. Australian court means— (a) the High Court; or (b) a court exercising federal jurisdiction; or (c) a court of a State or Territory; or (d) a judge, justice or arbitrator under an Australian law; or (e) an entity authorised by an Australian law, or by consent of parties, to hear, receive and examine evidence; or (f) an entity that, in exercising a function under an Australian law, is required to apply the laws of evidence. Australian law means a law of the Commonwealth, a State or Territory. Note Law—see the dictionary, pt 2. Australian lawyer—see the Legal Profession Act 2006, dictionary. Australian legal practitioner—see the Legal Profession Act 2006, dictionary. Australian or overseas proceeding means a proceeding (however described) in an Australian court or foreign court. Australian Parliament means the Legislative Assembly, the Commonwealth Parliament, a Parliament of a State or a Legislative Assembly of another Territory. Australian practising certificate—see the Legal Profession Australian-registered foreign lawyer—see the Legal Profession Note The Commonwealth Act and NSW Act include a definition of Australian statistician. In the ACT, that term is defined in the Legislation Act, business—see the dictionary, part 2, section 1. case of a party means the facts in issue in relation to which the party bears the legal burden of proof. child—see the dictionary, part 2, section 10 (1). Note Child is also defined in the Legislation Act, dictionary, pt 1. civil penalty—see the dictionary, part 2, section 3. civil proceeding means a proceeding other than a criminal client, for division 3.10.1 (Client legal privilege)—see section 117. coincidence evidence means evidence of a kind mentioned in section 98 (1) that a party seeks to present for the purpose mentioned in that subsection. coincidence rule means the rule mentioned in section 98 (1). Commonwealth Act means the Evidence Act 1995 (Cwlth). Note The Commonwealth Act does not include this definition. Commonwealth-owned body corporate means a body corporate that, were the Commonwealth a body corporate, would, for the purposes of the Corporations Act, be— (a) a wholly-owned subsidiary of the Commonwealth; or (b) a wholly-owned subsidiary of another body corporate that is, under this definition, a Commonwealth-owned body corporate because of the application of paragraph (a) (including the application of that paragraph together with another application or other applications of this paragraph). Commonwealth record—see the Evidence Act 1995 (Cwlth), dictionary. confidant, for division 3.10.1A (Professional confidential confidential communication, for division 3.10.1 (Client legal privilege)—see section 117. confidential document, for division 3.10.1 (Client legal privilege)— see section 117. court means ACT court. Note The Commonwealth Act does not include this definition. credibility— (a) of a person who has made a representation that has been admitted in evidence—means the credibility of the representation, and includes the person’s ability to observe or remember facts and events about which the person made the representation; and (b) of a witness—means the credibility of any part or all of the evidence of the witness, and includes the witness’s ability to observe or remember facts and events about which the witness has given, is giving or is to give evidence. credibility evidence—see section 101A. credibility rule means the rule mentioned in section 102. criminal proceeding means a prosecution for an offence and includes— (a) a proceeding for the committal of a person for trial or sentence for an offence; and (b) a proceeding relating to bail; but does not include a prosecution for an offence that is a prescribed taxation offence within the meaning of the Taxation Administration Act 1953 (Cwlth), part 3. cross-examination—see the dictionary, part 2, section 2 (2). cross-examiner means a party who is cross-examining a witness. Note The Commonwealth Act and NSW Act include a definition of de facto partner. In the ACT, the term domestic partner is used. That term is defined in the Legislation Act, s 169 (1). document—see the dictionary, part 2, section 8. Note Document is also defined in the Legislation Act, dictionary, pt 1. document in question, for part 2.2 (Documents)—see section 47. electronic communication—see the Electronic Transactions Act 2001, dictionary. examination-in-chief—see the dictionary, part 2, section 2 (1). Note The Commonwealth Act and NSW Act include a definition of exercise of a function. In the ACT, that term is defined in the Legislation Act, fax, in relation to a document, means a copy of the document that has been reproduced by facsimile telegraphy. Note The Commonwealth Act includes a definition of federal court. foreign court means any court (including any entity authorised to take or receive evidence, whether on behalf of a court or otherwise and whether or not the entity is empowered to require the answering of questions or the production of documents) of a foreign country or part of that country. Note The Commonwealth Act and NSW Act include a definition of function. In the ACT, that term is defined in the Legislation Act, dictionary, pt 1. government or official gazette includes the gazette. Note 1 This definition differs from the Commonwealth Act and NSW Act. Note 2 The NSW Act includes definitions of Governor of a State and Governor- General. In the ACT, those terms are defined in the Legislation Act, harm, for division 3.10.1A (Professional confidential relationship privilege)—see section 126A (1). hearsay rule means the rule mentioned in section 59 (1). identification evidence means evidence that is— (a) an assertion by a person to the effect that a defendant was, or resembles (visually, aurally or otherwise) a person who was, present at or near a place where— (i) the offence for which the defendant is being prosecuted was committed; or (ii) an act connected to the offence was done; at or about the time at which the offence was committed or act was done, that is an assertion based completely or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time; or (b) a report (whether oral or in writing) of the assertion. informant, for division 3.10.1C (Journalist privilege)—see intermediary, in relation to a proceeding, means a person appointed as an intermediary for a witness in the proceeding under the Evidence (Miscellaneous Provisions) Act 1991 chapter 1B (Witness intermediaries—criminal proceedings). investigating official means— (a) a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior); or (b) a person appointed by or under an Australian law (other than a person who is engaged in covert investigations under the orders of a superior) whose functions include functions in relation to the prevention or investigation of offences. joint sitting means— (a) in relation to the Commonwealth Parliament—a joint sitting of the members of the Senate and House of Representatives convened by the Governor-General under the Constitution, section 57 or convened under any Commonwealth Act; or (b) in relation to a bicameral legislature of a State—a joint sitting of both houses of the legislature convened under a law of the State. journalist, for division 3.10.1C (Journalist privilege)—see judge, in relation to a proceeding, means the judge, magistrate or other person before whom the proceeding is being held. law—see the dictionary, part 2, section 9. lawyer, for division 3.10.1 (Client legal privilege)—see section 117. leading question means a question asked of a witness that— (a) directly or indirectly suggests a particular answer to the question; or (b) assumes the existence of a fact the existence of which is in dispute in the proceeding and as to the existence of which the witness has not given evidence before the question is asked. legal counsel means an Australian lawyer employed in or by a government agency or other body who by law is exempted from holding an Australian practising certificate, or who does not require an Australian practising certificate, to engage in legal practice in the course of that employment. 1 in-house counsel 2 government solicitor Legislative Assembly, of another Territory, includes any present or former Legislative Assembly of that Territory. Note Legislative Assembly is also defined in the Legislation Act, dictionary, pt 1. member of the Australian Federal Police includes a special member or staff member of the Australian Federal Police. news medium, for division 3.10.1C (Journalist privilege)—see NSW Act means the Evidence Act 1995 (NSW). Note The Commonwealth Act and NSW Act do not include this definition. offence means an offence against or arising under an Australian law. opinion rule means the rule mentioned in section 76. overseas-registered foreign lawyer—see the Legal Profession parent—see the dictionary, part 2, section 10 (2). party, for division 3.10.1 (Client legal privilege)—see section 117. police officer includes a member of the police force of a State or another Territory. Note Police officer is also defined in the Legislation Act, dictionary, pt 1. postal article—see the Australian Postal Corporation Act 1989 (Cwlth), section 3. previous representation— (a) for this Act generally—means a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be presented; and (b) for division 3.2.2 (First-hand hearsay) (other than section 62 (2))—see section 62. prior consistent statement of a witness means a previous representation that is consistent with evidence given by the witness. prior inconsistent statement of a witness means a previous representation that is inconsistent with evidence given by the witness. probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. prosecutor means a person who starts, or is responsible for the conduct of, a prosecution. protected confidence, for division 3.10.1A (Professional confidential protected confider, for division 3.10.1A (Professional confidential protected identity information, for division 3.10.1A (Professional confidential relationship privilege)—see section 126A (1). public document means a document that— (a) forms part of the records of the Commonwealth, a State or a Territory; or (b) forms part of the records of the government of a foreign country; or (c) forms part of the records of an entity holding office or exercising a function under or because of the Constitution, an Australian (d) is being kept by or on behalf of an entity mentioned in paragraph (a), (b) or (c); and includes the records of the proceedings of, and papers presented to— (e) an Australian Parliament, a house of an Australian Parliament, a committee of an Australian Parliament or of a house of an Australian Parliament; and (f) a legislature of a foreign country, including a house or committee (however described) of that legislature. re-examination—see the dictionary, part 2, section 2 (3) and (4). representation includes— (a) an express or implied representation (whether oral or in writing); or (b) a representation to be inferred from conduct; or (c) a representation not intended by its maker to be communicated to or seen by someone else; or (d) a representation that for any reason is not communicated. request, for division 4.6.1 (Requests to produce documents or call witnesses)—see section 166. seal includes a stamp. tendency evidence means evidence of a kind mentioned in section 97 (1) that a party seeks to present for the purpose mentioned in that subsection. tendency rule means the rule mentioned in section 97 (1). traditional laws and customs of an Aboriginal or Torres Strait Islander group (including a kinship group) includes any of the traditions, customary laws, customs, observances, practices, knowledge and beliefs of the group. witness—see the dictionary, part 2, section 7. 1 References to business (1) For this Act, a business includes the following: (a) a profession, calling, occupation, trade or undertaking; (b) an activity engaged in or carried on by the Commonwealth, a State or a Territory; (c) an activity engaged in or carried on by the government of a foreign country; (d) for an entity holding office or exercising power under or because of the Constitution, an Australian law or a law of a foreign country—an activity engaged in or carried on by the entity in the exercise of the functions of the office or the exercise of the power (otherwise than in a private capacity); (e) the proceedings of an Australian Parliament, a house of an Australian Parliament, a committee of an Australian Parliament or of a house of an Australian Parliament; (f) the proceedings of a legislature of a foreign country, including a house or committee (however described) of the legislature. (2) For this Act, a business also includes the following: (a) a business that is not engaged in or carried on for profit; (b) a business engaged in or carried on outside Australia. 2 References to examination-in-chief, cross-examination and re-examination (1) For this Act, a reference to examination-in-chief of a witness is a reference to the questioning of a witness by the party who called the witness to give evidence, other than questioning that is re-examination. (2) For this Act, a reference to cross-examination of a witness is a reference to the questioning of a witness by a party other than the party who called the witness to give evidence. (3) For this Act, a reference to re-examination of a witness is a reference to the questioning of a witness by the party who called the witness to give evidence, that is questioning (other than further examination-in- chief with the leave of the court) conducted after the cross-examination of the witness by another party. (4) For this Act, if a party has recalled a witness who has already given evidence, a reference to re-examination of a witness does not include a reference to the questioning of the witness by that party before the witness is questioned by another party. 3 References to civil penalties For this Act, a person is taken to be liable to a civil penalty if, in an Australian or overseas proceeding (other than a criminal proceeding), the person would be liable to a penalty arising under an Australian law or a law of a foreign country. 4 Unavailability of people (1) For this Act, a person is taken not to be available to give evidence about a fact if— (a) the person is dead; or (b) the person is, for any reason other than the application of section 16 (Competence and compellability—judges and jurors), not competent to give the evidence; or (c) the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability; or (d) it would be unlawful for the person to give the evidence; or (e) a provision of this Act prohibits the evidence being given; or (f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or to secure the person’s attendance, but without success; or (g) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success. (2) In all other cases the person is taken to be available to give evidence about the fact. 5 Unavailability of documents and things For this Act, a document or thing is taken not to be available to a party if and only if— (a) it cannot be found after reasonable inquiry and search by the party; or (b) it was destroyed by the party, or by a person on behalf of the party, otherwise than in bad faith, or was destroyed by someone else; or (c) it would be impractical to produce the document or thing in the (d) production of the document or thing in the proceeding could render a person liable to conviction for an offence; or (e) it is not in the possession or under the control of the party and— (i) it cannot be obtained by any judicial procedure of the court; or (ii) it is in the possession or under the control of another party to the proceeding who knows or might reasonably be expected to know that evidence of the contents of the document, or evidence of the thing, is likely to be relevant in the proceeding; or (iii) it was in the possession or under the control of that other party at a time when that party knew or might reasonably be expected to have known that the evidence was likely to be relevant in the proceeding. 6 Representations in documents For this Act, a representation contained in a document is taken to have been made by a person if— (a) the document was written, made or otherwise produced by the person; or (b) the representation was recognised by the person as the person’s representation by signing, initialling or otherwise marking the document. 7 Witnesses (1) For this Act, a reference to a witness includes a reference to a party giving evidence. (2) For this Act, a reference to a witness who has been called by a party to give evidence includes a reference to the party giving evidence. (3) For this section, a reference to a party includes a defendant in a criminal proceeding. 8 References to documents For this Act, a reference to a document includes a reference to the (a) any part of the document; (b) any copy, reproduction or duplicate of the document or of any part of the document; (c) any part of the copy, reproduction or duplicate. 8A References to offices etc For this Act— (a) a reference to a person appointed or holding office under or because of an Australian law includes a reference to an APS employee within the meaning of the Public Service Act 1999 (Cwlth); and (b) in that context, a reference to an office is a reference to the position occupied by the APS employee and a reference to an officer includes a reference to a Secretary, or APS employee, within the meaning of that Act. 9 References to laws (1) For this Act, a reference to a law of the Commonwealth, a State, a Territory or a foreign country is a reference to a law (whether written or unwritten) of or in force in that place. (2) For this Act, a reference to an Australian law is a reference to an Australian law (whether written or unwritten) of or in force in Australia. 10 References to children and parents (1) For this Act, a child of a person includes the following: (a) an adopted child of the person; (b) a child of the person born outside the person’s domestic partnership; (c) a child living with the person as if the child were a member of the person’s family. (2) For this Act, a parent of a person includes the following: (a) if the person is adopted—an adoptive parent of the person; (b) if the person is a child mentioned in subsection (1) (b)—the person’s natural father; (c) if the person is a child mentioned in subsection (1) (c)—the person whose family the child is living with. Note The Commonwealth Act and NSW Act include a provision about references to de facto partners. 1 About the endnotes 1 About the endnotes Amending and modifying laws are annotated in the legislation history and the amendment history. Current modifications are not included in the republished law but are set out in the endnotes. Not all editorial amendments made under the Legislation Act 2001, part 11.3 are annotated in the amendment history. Full details of any amendments can be obtained from the Parliamentary Counsel’s Office. Uncommenced amending laws are not included in the republished law. The details of these laws are underlined in the legislation history. Uncommenced expiries are underlined in the legislation history and amendment history. If all the provisions of the law have been renumbered, a table of renumbered provisions gives details of previous and current numbering. The endnotes also include a table of earlier republications. 2 Abbreviation key A = Act NI = Notifiable instrument AF = Approved form o = order am = amended om = omitted/repealed amdt = amendment ord = ordinance AR = Assembly resolution orig = original ch = chapter par = paragraph/subparagraph CN = Commencement notice pres = present def = definition prev = previous DI = Disallowable instrument (prev...) = previously dict = dictionary pt = part disallowed = disallowed by the Legislative r = rule/subrule Assembly reloc = relocated div = division renum = renumbered exp = expires/expired R[X] = Republication No Gaz = gazette RI = reissue hdg = heading s = section/subsection IA = Interpretation Act 1967 sch = schedule ins = inserted/added sdiv = subdivision LA = Legislation Act 2001 SL = Subordinate law LR = legislation register sub = substituted LRA = Legislation (Republication) Act 1996 underlining = whole or part not commenced mod = modified/modification or to be expired Legislation history 3 3 Legislation history Evidence Act 2011 A2011-12 notified LR 13 April 2011 s 1, s 2 commenced 13 April 2011 (LA s 75 (1)) remainder commenced 1 March 2012 (s 2 and CN2012-4) as amended by Evidence Amendment Act 2011 A2011-47 notified LR 22 November 2011 s 1, s 2 commenced 22 November 2011 (LA s 75 (1)) remainder commenced 1 March 2012 (s 2 and see Evidence Act 2011 A2011-12, s 2 and CN2012-4) Evidence (Consequential Amendments) Act 2011 A2011-48 sch 1 pt 1.18 notified LR 22 November 2011 s 1, s 2 commenced 22 November 2011 (LA s 75 (1)) sch 1 pt 1.18 commenced 1 March 2012 (s 2 (1) and see Evidence Act