The Act sets rules about how certain pieces of evidence and parts of trial procedure are treated in Queensland courts.
Key operative rules in the text provided are:
Certified copies of judgments, decrees, rules and orders from the Supreme Court at Brisbane may be admitted in other courts and tribunals as evidence of their contents without producing the originals, if they are certified by the appropriate officer (master in equity for equitable orders; prothonotary or chief clerk for common‑law or ecclesiastical orders). Such copies are treated as prima facie certified when they purport to carry the certification (sec.31).
Oaths, affidavits and notarial acts required for Queensland proceedings may be made, sworn or done before certain consular officers or authorised Commonwealth employees outside Australia; those acts are to have the same legal effect as if made before a Queensland authority. Documents that must be attested, verified, sealed, signed, acknowledged or declared before a Queensland justice of the peace may likewise be executed before those overseas officers and will be as effectual (sec.37A, subsections 1–4).
Documents that purport to carry the seal or signature of a consular officer or authorised employee are prima facie evidence of that seal or signature and are admissible without separate proof of authenticity (sec.38).
In civil trials, the Act prescribes who may open and reply in addresses to the court or jury and allows the party who begins to make a second address at the close of their case under specified circumstances (sec.43).
This instrument sets out procedural evidentiary rules that remain on the statute book from the Evidence and Discovery Act 1867 and a small number of later insertions and amendments preserved in the text you supplied. Read plainly, the operative mechanics in the supplied text are:
Admissibility of certified copies of Supreme Court judgments, decrees, rules and orders: sec.31 allows copies filed or recorded in the Supreme Court at Brisbane to be admitted in any Queensland court or tribunal "without production of the originals" provided the copies from the equitable jurisdiction are certified under the master in equity and those from the common law and ecclesiastical jurisdictions are certified under the prothonotary or chief clerk; such copies are "deemed prima facie to be so certified if they purport to be so certified" (sec.31, subsecs.1-2).
Overseas notarial acts and oaths: sec.37A permits persons abroad to make, swear or do oaths, affidavits and certain notarial acts before a consular officer or an "authorised employee" exercising functions in that country or place, and declares those acts "as effectual as if duly made, sworn, or done before a lawful authority in Queensland" (sec.37A, subsecs.2-2A). The section defines "consular officer" by office titles and defines "authorised employee" by reference to the Commonwealth Consular Fees Act 1955 (sec.37A, ssec.1).
Evidence of consular seals and signatures: sec.38 provides that a document purporting to bear a consular officer's or authorised employee's seal or signature is "deemed prima facie to be so affixed" and admitted without further proof of the official character or authenticity of the seal or signature (sec.38).
Civil trial addresses: sec.43 prescribes the order of addresses in civil trials, including that the party who begins may reply (including a second address in specified circumstances), the opposing party may open and sum up, and that the "right to reply shall be the same as at present" (sec.43, subsecs.1-3).
Current sections
Direct links to the current provisions in Evidence and Discovery Act 1867.
89
Official source available
Zoe has indexed the source text for search and analysis. Use the official register for the original document and download formats.
Sourced from Queensland Legislation (legislation.qld.gov.au), CC BY 4.0.
Affidavits and affirmations properly taken under this Act may be read and used in any court or judicature in the State and have the same force as if taken before that court or a person authorised by it (sec.61).
In criminal cases involving a prisoner, a witness’s deposition taken at committal may be read at trial for the prisoner’s defence if the witness died or is too ill to attend or if justices certified the witness’s evidence as material and the prisoner could not afford attendance; but a Crown‑subpoenaed witness (if subpoenaed in due time) is an exception and the deposition is not admissible under that certificate (sec.67).
The Act’s formal commencement date and short title are recorded (sec.79).
Who is affected and who decides (practical lines of authority)
Parties in civil and criminal proceedings: the rules affect litigants who rely on court records, affidavits, overseas notarisation/attestation and depositions (secs.31, 37A, 38, 61, 67).
Court officers and registrars: certification by the master in equity, prothonotary or chief clerk controls whether copies of Supreme Court records can be received without originals (sec.31).
Consular officers and certain Commonwealth or trade commission employees abroad: they are authorised for making oaths, affidavits and notarial acts that Queensland courts must treat as effective (sec.37A).
Judges and tribunals: they are directed to accept the specified certified copies, prima facie seals/signatures, affidavits taken under the Act, and overseas consular acts as effective evidence (secs.31, 38, 61, 37A).
Who pays, incentives and behaviour changes
Who pays: the text directly touches payment only in one place — sec.67 presumes that a prisoner may be unable to bear the expense of a witness’s attendance; the rule allows reading the deposition in that circumstance rather than incurring attendance costs. The Act itself does not specify fees for consular or notarial acts or for certification by court officers.
Incentives created:
Certifying officers and registrars become gatekeepers for admitting copies without originals; parties have an incentive to obtain the proper certification to avoid producing originals (sec.31).
Litigants with overseas transactions or parties have an incentive to use consular or authorised officers abroad to take oaths or attest documents because those acts will be treated as valid in Queensland (sec.37A).
Defence teams for prisoners may rely on committal depositions where witnesses cannot attend or die, subject to the Crown‑subpoena exception; this reduces the financial burden of producing witnesses (sec.67).
Compliance burden, discretion and implementation risks
Compliance burdens:
Parties must obtain the correct form of certification from the specified court officers for Supreme Court copies (sec.31).
Where documents are executed abroad, parties must ensure a consular officer or an authorised employee performs the act to get the legal effect in Queensland (sec.37A).
To rely on depositions under sec.67, a party must show the justices previously certified the witness’s evidence as material and the prisoner’s inability to pay, or that the witness died or was too ill to travel (sec.67).
Discretion and implementation risk:
The Act treats documents as prima facie certified or sealed where they purport to be so (sec.31; sec.38). That reduces the immediate documentary proof burden but leaves open the possibility of later rebuttal; it places initial trust in the form of the document rather than an independent authentication step.
Consular officers and authorised employees operate under their own appointment and functional rules overseas; the Act asks local courts to treat their acts as equivalent to Queensland authorities (sec.37A). That creates reliance on the competence and bona fides of overseas officers and on the cross‑jurisdictional mechanisms that govern them.
Trade‑offs, opportunity costs and likely operational effects (source‑grounded)
The Act substitutes certified copies and certain overseas attestations for the production of originals or in‑person attestations in Queensland (secs.31, 37A, 38). The concrete effects are lower transactional and travel costs for parties and courts, and faster documentary proof in many cases; the text does not itself create funding for those services nor set fees.
The Act centralises evidentiary acceptability on formal certification language and on the office of particular officials (masters, prothonotaries, consular officers). That concentrates the authority to admit evidence in named office‑holders and in the formal appearance of documents (secs.31, 37A, 38).
Where the Act permits depositions to be read for prisoners (sec.67), it trades the live‑testimony advantage of cross‑examination in person against cheaper, earlier evidence preservation at committal.
What the Act does not do (in the text provided)
The text does not set fees, penalties, or detailed procedural steps for obtaining the certifications or consular acts; it simply prescribes their legal effect when done as stated (secs.31, 37A, 38).
Source citations: principal operative provisions relied on in this summary include sec.31 (certified copies), sec.37A (oaths and notarial acts abroad), sec.38 (prima facie acceptance of consular seals/signatures), sec.43 (addresses to court/jury), sec.61 (affidavits received without fresh proof), sec.67 (prisoners’ witnesses’ depositions), and sec.79 (commencement/short title).
Affidavits and depositions: sec.61 declares affidavits and affirmations taken under the Act may be "received, read and made use of" in any court in Queensland and "shall be of the same force and effect" as affidavits taken before the court itself. Sec.67 provides for reading to a jury of depositions of prisoners' witnesses who die before trial, or are too ill to travel, or where justices have certified the evidence is material and the prisoner cannot afford attendance; the section expressly excludes depositions where the witness has been subpoenaed by the Crown (sec.67, subsecs.1-2).
Formalities and scope: the Act's short title and commencement are specified in sec.79 (commenced 31 December 1867). Many original sections are shown in the text as omitted by later enactments or replaced; the supplied extract records those omissions and specific amendment citations where applicable (for example the numerous "om 1977 No. 47 s 3 (2) sch 1 pt B" notations).
Mechanically, the text therefore affects the admissibility and proof burden for certain documentary and testimonial materials (certified copies, consularly‑made documents, affidavits, depositions) and prescribes a rule for counsel addresses in civil trials. The provisions alter evidentiary procedures rather than create substantive rights or penalties. The text supplied includes amendment notations that indicate other original sections have been repealed or omitted; this means the surviving operative parts are the certificatory/admissibility provisions, the consular/notarial provisions, the civil-address rule and the affidavits/depositions rules referenced above (secs.31, 37A, 38, 43, 61, 67, 79).
Main concepts
The Act, as preserved in the supplied text, operates around a small set of repeatable legal mechanisms:
Certification as a route to admissibility: sec.31 creates a certification-based shortcut to admit copies of Supreme Court records without originals. The mechanism is twofold: (1) the copy must be certified by an identified official depending on the court's jurisdiction (master in equity for equitable orders; prothonotary or chief clerk for common law and ecclesiastical orders) and (2) a document that merely "purports" to be so certified is sufficient to establish a prima facie certification, shifting initial evidential burden away from the proponent (sec.31, subsecs.1-2).
Extraterritorial notarial competence: sec.37A authorises a consular officer or an "authorised employee" to perform oaths, affidavits and certain notarial acts in any country or place outside the Commonwealth of Australia where those acts would, if done in the United Kingdom, be performable by a notary public. Once performed, those acts are declared to be "as effectual as if duly made" before a Queensland authority (sec.37A, subsecs.2-2A, 2-4). The section contains an internal definition of "consular officer" by listing offices (ambassador, consul, trade commissioner, etc.) and delegates "authorised employee" to the Commonwealth Consular Fees Act 1955 (Cwlth) (sec.37A, ssec.1).
Prima facie evidence of consular seals and signatures: sec.38 extends a presumption of authenticity to documents bearing consular seals or signatures or those of authorised employees by treating the presence of such markings as prima facie evidence of the official act and of the identity or official character of the signer (sec.38).
Procedural sequencing in civil trials: sec.43 lays down the sequence of counsel addresses in civil causes: the party who opens can be permitted a second address in particular circumstances, the opposing party may open and sum up, and the right to reply remains as previously established (sec.43, subsecs.1-3). This is a procedural rule about who speaks and when; it affects trial strategy and allocation of rhetorical turns.
Equivalence and portability of affidavits: sec.61 declares that affidavits and affirmations taken under the Act are admissible in any Queensland court "in like manner" as if taken before the court itself or before someone commissioned by it. The mechanism treats such affidavits as carrying the same legal force and requiring no further proof of regularity in the receiving court (sec.61).
Admissibility exceptions for prisoner witness depositions: sec.67 creates a narrow mechanism to admit pre-trial depositions for prisoners' witnesses who die or are incapacitated or where justices certify materiality and that the accused cannot afford attendance. The section also provides an explicit exclusion where the Crown has timely subpoenaed the witness (sec.67, subsecs.1-2).
Repeal and omission markers: the text contains repeated "om" (omitted) annotations and amendment citations (for example "om 1977 No. 47 s 3 (2) sch 1 pt B"), which indicate the Act has been subject to substantial repeal or replacement by later statutes. Those entries function as signals that the surviving provisions are a reduced subset of the original 1867 Act.
These concepts map to predictable evidentiary incentives: certification and consular forms reduce friction in proving documents and obtaining sworn statements across borders; prima facie rules reduce initial litigation costs by limiting the need for proof of authenticity; the civil-address rule shapes trial practice; the prisoner-deposition exception balances accused persons’ ability to use unavailable witnesses against Crown subpoena power. The text concentrates procedural advantages in the hands of parties who can obtain the specified certifications or consular attestations and relocates some of the verification cost onto opposing parties challenging authenticity, because of the "prima facie" language in secs.31 and 38.
Who it affects
The preserved provisions affect a defined set of participants and public institutions:
Litigants and their counsel in Queensland courts: Any party seeking to prove the contents of a Supreme Court judgment, decree, rule or order can rely on sec.31 to tender certified copies in any Queensland court, tribunal, or judicial proceeding without producing originals. That reduces the logistical burden on litigants and their lawyers when relying on Supreme Court records (sec.31, subsecs.1-2). Civil litigators are also affected by sec.43, which sets the order of addresses (sec.43, subsecs.1-3).
Prisoners and accused persons, and their witnesses: sec.67 permits reading depositions of witnesses who die before trial, are too ill to travel, or where justices have certified their evidence is material and the accused cannot afford attendance. The section creates a route for accused persons to rely on prior depositions in specified circumstances; it also limits that route where the Crown has subpoenaed the witness (sec.67, subsecs.1-2).
Clerks and court officers of the Supreme Court at Brisbane: the master in equity, the prothonotary and the chief clerk are the official certifiers whose signatures make copies admissible under sec.31. Those officers perform a gatekeeping role: their certification (or an instrument that purports to be their certification) is the statutory route to admitting court records without an original (sec.31).
Consular officers and authorised employees overseas: sec.37A directly empowers consular officers and authorised employees performing functions outside Australia to administer oaths, affirmations, and perform notarial acts that will be treated as valid in Queensland (sec.37A, subsecs.2-3A). The definition in sec.37A, ssec.1 names the offices that qualify (ambassador, high commissioner, consul-general, trade commissioner, etc.), while “authorised employee” is defined with reference to the Commonwealth Consular Fees Act 1955 (Cwlth).
Notaries, justices of the peace and other domestic attesting officers: sec.37A and sec.38 create substitution effects. Where a person could have obtained a notarial act or a JP attestation in Queensland, they can instead obtain a consular or authorised-employee act abroad and have it treated as equivalent (sec.37A, subsecs.2-3A; sec.38). The effect is to allow persons abroad to fulfil Queensland formalities without returning to Australia.
Courts and judges in Queensland: courts are the decision‑makers about admissibility and retain discretion to accept or reject evidence; the Act supplies statutory presumptions (prima facie certification and authenticity) that courts must apply unless displaced by evidence to the contrary (secs.31, 38). Judges will adjudicate disputes about whether certifications are genuine, whether a deposition is admissible under sec.67, and whether foreign consular acts fall within sec.37A's scope.
Commonwealth agencies and legislative instruments referenced: sec.37A ties to the Consular Fees Act 1955 (Cwlth) by reference for the definition of "authorised employee" (sec.37A, ssec.1) and sec.38 references the Australian Consular Officers’ Notarial Powers and Evidence Act 1946 and later amendments (sec.38). These cross-references bind the domestic evidentiary effect to Commonwealth authorisations and to other federal instruments listed in the text.
Who pays and who decides: the immediate monetary cost-bearers are private litigants and individuals seeking consular attestations (fees for consular services are governed by the Consular Fees Act, which the section references), as well as parties contesting authenticity who carry the cost of challenging a prima facie certification. Decision authority rests with court officers for certification (sec.31), consular officers and authorised employees for out-of-country acts (sec.37A), and judges for ultimate admissibility rulings.
Key duties and rights
The Act sets limited statutory duties and confers evidentiary rights and presumptions rather than broad regulatory obligations. The operative duties and rights, grounded in the supplied text, are:
Duties (express or practical)
Duty to provide specified certification to use sec.31: to take advantage of sec.31’s admission rule, a proponent must have a copy certified by the appropriate officer,master in equity for equitable jurisdiction copies, prothonotary or chief clerk for common law and ecclesiastical jurisdiction copies (sec.31, ssec.1). Practically, that imposes on the proponent an obligation to obtain the specified officer’s certification or at least a document that purports to bear that certification.
Duty to secure proper consular or authorised-employee attestation abroad: where an oath, affidavit or notarial act is required for a Queensland matter, the person seeking the act abroad must have it made before a consular officer or authorised employee exercising functions in that country or place; that is the means to secure statutory equivalence under sec.37A (sec.37A, ssec.2-3A).
Rights and evidentiary entitlements
Right to tender certified copies as evidence without originals: sec.31 gives litigants an entitlement to have copies of Supreme Court records admitted in evidence without producing originals, subject to the certification rule (sec.31, ssec.1-2). The entitlement is procedural: produce the certified copy and the receiving court must admit it as evidence of its contents.
Right to rely on consularly attested documents as effectual in Queensland: sec.37A confers on persons the right to have oaths, affidavits and certain notarial acts performed by consular officers or authorised employees treated "as effectual" as if done in Queensland (sec.37A, subsecs.2-2A, 3-3A). The legal consequence is equivalence in evidentiary effect.
Prima facie presumptions: two statutory presumptions help evidence-providers. Sec.31, ssec.2 declares that copies purporting to be certified "shall be deemed prima facie to be so certified." Sec.38 declares documents bearing consular seals or signatures to be "deemed prima facie to be so affixed" and admissible without further proof of the official character of the signatory (sec.38). These presumptions shift initial evidential burdens and provide a default acceptance posture for courts.
Right to use affidavits taken under the Act in any Queensland court: sec.61 entitles parties to have affidavits and affirmations taken under the Act "received, read and made use of" as if taken before the court, and "shall be of the same force and effect" (sec.61). That is a broad right to portability of such affidavits across Queensland courts.
Limitations and carve-outs
Crown subpoena exception for prisoner depositions: sec.67 explicitly limits the right to read depositions by providing that where a witness has been subpoenaed by the Crown in due time before trial, the justices’ certificate will not make the deposition admissible (sec.67, ssec.2).
Territorial and functional limits on consular acts: sec.37A applies to acts done "in any country or place outside the Commonwealth of Australia" and concerns notarial acts that "if done in the United Kingdom ... a notary public could do." The definition of "consular officer" is restricted to certain offices defined in the text (sec.37A, ssec.1, 2, 4). The rights conferred operate within those criteria.
Procedural effects and decision allocations
Certifier roles: sec.31 gives specified court officers the duty of certification, which confers them with procedural gatekeeping power over the ease with which copies can be admitted (sec.31). Judges remain responsible for adjudicating the ultimate weight and any challenge to such certified materials.
Documentary authenticity presumptions reduce immediate proof duties: the two prima facie rules (secs.31 and 38) give providers a practical advantage by removing the need at first instance to produce originals or further proof of consular authenticity, placing a burden on opponents to produce contrary evidence if they contest authenticity.
The Act does not create statutory offences, fines, or criminal sanctions in the supplied text. The main "duties" are procedural steps necessary to obtain the evidentiary rights and presumptions the Act confers.
Penalties and enforcement
The supplied text contains no express penalty provisions or enforcement regime for non-compliance. The material mechanisms for enforcement are judicial and evidentiary rather than penal. Key enforcement points derived from the text:
Judicial discretion and admissibility rulings: courts and judges are the primary enforcers. Sections such as sec.31 and sec.38 create statutory presumptions ("prima facie") but do not eliminate judicial oversight. A court can assess whether a document indeed falls within the statutory descriptions and can entertain contrary evidence to rebut the prima facie status, so enforcement of the rules is exercised by judges through admissibility determinations (secs.31, 38).
Procedural consequences rather than sanctions: non-compliance with the certification/formalities will generally manifest as exclusion of evidence, not as a monetary or criminal penalty specified by the Act. For example, a party who cannot produce a certified copy under sec.31 will lack the statutory route to admit the copy without the original and instead must rely on ordinary rules for proving documents (sec.31).
Crown subpoena limitation as a direct exclusionary rule: sec.67 includes a substantive enforcement-type consequence (an exclusion) by providing that where a witness was subpoenaed by the Crown in due time, the justices' certificate will not render the deposition admissible. That is a statutory limitation on admissibility rather than a penalty, but it is an enforceable exclusion in practice (sec.67, ssec.2).
Reliance upon Commonwealth authorisations: sec.37A links recognition of consular acts to persons authorised under the Consular Fees Act 1955 (Cwlth) and to the Australian Consular Officers’ Notarial Powers and Evidence Act 1946 (sec.37A, ssec.1; sec.38 references). Enforcement of who qualifies as an "authorised employee" or a consular officer for the purpose of sec.37A will involve application of those other statutes. That means administrative authorisations under federal law affect admissibility in Queensland courts, but the supplied text does not spell out enforcement steps beyond the cross-reference.
No express sanctioning officer or fines: the text contains no specification of fines, imprisonment, civil penalties, professional disciplinary mechanisms or other statutory sanctions in the supplied excerpts. The available enforcement tools are therefore ordinary courtroom remedies (admission or exclusion of evidence, adverse inferences, costs orders) rather than dedicated statutory penalties.
Implementation risk and evidentiary remedy landscape
Challenges to prima facie presumptions: the "prima facie" wording in secs.31 and 38 reduces upfront proof obligations but leaves open the risk of post‑admission attack. If authenticity is disputed, the opposing party bears the evidential task of displacing the presumption in court. Courts will make enforcement judgments, and the Act does not prescribe a special mode of proof to rebut the presumptions.
Administrative dependence on other statutes: because sec.37A depends on Commonwealth definitions and authorisations, enforcement of the consular‑act regime requires coordination with federal administrative determinations. The supplied text does not provide enforcement mechanisms for cases where a consular officer’s authority is challenged; the issue will be litigated in the receiving Queensland court.
In short, enforcement is judicial and remedial rather than penal, with admissibility and exclusion as the primary levers. The text does not create standalone criminal or civil penalty apparatus.
How it interacts with other laws
The supplied text contains explicit cross‑references and repeated amendment/omission annotations that demonstrate interaction with federal legislation and later state repeals. The key interactions evident in the text are:
Cross-reference to Commonwealth Consular Fees Act 1955 (Cwlth): sec.37A defines "authorised employee" by reference to persons authorised under section 3(c) and 3(d) of the Consular Fees Act 1955 (Cwlth) (sec.37A, ssec.1). That means the reach of sec.37A in practice depends on who the Commonwealth has authorised for consular functions; the state evidentiary regime therefore depends on federal administrative determinations and the statutory framework governing consular fees and authorisations.
Linkage to Australian Consular Officers’ Notarial Powers and Evidence Act 1946: sec.38 expressly mentions the Australian Consular Officers’ Notarial Powers and Evidence Act 1946 (and sec.37A refers to the Notarial Powers Act in its amendment history). The recognition of consular seals and signatures and their evidentiary effect is legislatively aligned with federal law that defines consular notarial competence.
Territorial and functional limitation referencing the United Kingdom notary practice: sec.37A repeatedly states that certain notarial acts which "if done in the United Kingdom ... a notary public could do" may be performed before a consular officer in another country. The text therefore borrows an external benchmark (notarial acts as understood under UK practice) to define the functional ambit of consular notarial work that Queensland will accept (sec.37A, ssec.2).
Substantial state repeals and amendments: many sections in the supplied text are marked "om 1977 No. 47 s 3 (2) sch 1 pt B" or similar. Those notations show that large parts of the original Act have been omitted by later state legislation. The precise statutory effect is that the surviving operative clauses in the supplied extract are only a fragment of the original Act; this fragment must be read alongside the later repealing instrument(s) to understand the current law comprehensively.
Procedural interface with court rules and judicial practice: sec.43 prescribes the sequence of speeches in civil trials. That procedural rule will interact with court rules of practice and procedure concerning time limits, addresses, and judicial direction. The supplied text does not reproduce contemporary rules, but sec.43 remains a statutory baseline for who may speak and when in civil causes where it applies.
Interaction with Crown procedural rights: sec.67’s exclusion where the Crown has subpoenaed a witness creates an interaction between the accused’s ability to rely on deposition evidence and the Crown’s procedural right to secure witnesses by subpoena, establishing a statutory priority for Crown subpoenas in determining admissibility (sec.67, ssec.2).
Reliance on procedural equivalence across jurisdictions: sec.61 treats affidavits and affirmations taken under the Act as having the same force as those taken before the receiving court, which in practice interacts with general principles of evidence and any special rules of particular courts about form and filing of affidavits.
Because the text refers to federal statutes and contains multiple omission annotations, it should be read in a statutory ecosystem: the admissibility and authorisation mechanisms rely on Commonwealth legislation and on later Queensland repeals/amendments. The supplied extract does not reproduce those other instruments, but the cross-references are explicit (sec.37A ssec.1; sec.38 references), so practitioners must consult the Consular Fees Act 1955 (Cwlth) and the Australian Consular Officers’ Notarial Powers and Evidence Act 1946, together with the later state instruments that effected omissions, to complete the legal picture.
Amendment history
The supplied text contains numerous amendment and omission notations. From that material we can extract these specific historical markers and their statutory citations. The list below is limited to entries present in the text you provided; do not treat it as exhaustive for the Act's entire history but as the amendment notes the supplied extract records.
Insertion of sec.37A: sec.37A was inserted in 1960, cited as "s 37A ins 1960 9 Eliz 2 No. 22 s 4." That section was later amended in 2000 as indicated by "amd 2000 No. 58 s 2 sch" referencing changes to definitions or drafting (sec.37A notes).
Amendments and additions to sec.38: sec.38 records amendment history "amd 1946 10 Geo 6 No. 43 s 5(i); 1960 9 Eliz 2 No. 22 s 5; 2000 No. 58 s 2 sch." That indicates sec.38 was amended in 1946, 1960 and was subject to a schedule change in 2000.
Widespread omissions by a 1977 Act: many sections carry the note "om 1977 No. 47 s 3 (2) sch 1 pt B." This notation appears against numerous section headings (secs.1-30, 32-37, 39-42C, and dozens of others). The repeated "om 1977 No. 47 ..." signals that a substantial re-enactment or repeal in 1977 removed or replaced many provisions of the original 1867 Act. Where the text shows "hdg prec s 4 impliedly om 1977 No. 47 s 3 (2) sch 1 pt B" and similar, that indicates headings or prior provisions were impliedly omitted at the same time.
Other historic amendments: scattered sections record older nineteenth and early twentieth century amendments, for example "s 3 amd 1903 3 Edw 7 No. 10 s 10 sch 3" and "s 6 om 1874 37 Vic No. 9 s 1" among others. These notes show that the Act was amended multiple times across decades.
Specific insertions in the 1960s: sec.25A, sec.41A, sec.42A, sec.42B and sec.42C are marked "ins 1962 No. 9 s 4" or "ins 1962 No. 9 s 5/6" and then "om 1977 No. 47 ...", indicating they were inserted in the early 1960s and later omitted in 1977 (secs.25A, 41A, 42A-42C).
Commencement date unchanged: sec.79 retains the original commencement statement that the Act "shall commence on 31 December 1867 and may be referred to as the Evidence and Discovery Act 1867" (sec.79). That provision is the historical origin point of the Act.
Post‑1960 amendments to sec.37A and sec.38: the side notes show 1960 insertion/amendments and later 2000 amendments (sec.37A and sec.38 references to 2000 No. 58 s 2 sch), reflecting continued statutory housekeeping into the late 20th century.
Interpretative consequence: the multiple "om 1977 No. 47 ..." entries indicate that a 1977 statutory instrument significantly altered the Act, removing many sections. The surviving provisions in the supplied text (notably secs.31, 37A, 38, 43, 61, 67, 79) are those that were either preserved or reinserted. To trace the complete amendment lineage and ascertain current operative text in force, practitioners must read this Act in conjunction with the 1977 instrument(s) cited, the 1960 and 2000 amendments and the Commonwealth statutes referenced (Consular Fees Act 1955 and the 1946 Notarial Powers Act). The supplied text provides concrete amendment citations but does not reproduce the 1977 instrument itself; hence the amendment history here is a map of the notations present in the extract.
Litigation history
The supplied text contains no case citations, reported judicial decisions, or references to litigation precedents. It names no authorities by case law. Consequently:
No cases are cited within the Act text you provided, and there is no internal litigation history recorded in these excerpts.
Any statements about how courts have interpreted the provisions (for example how strictly courts have applied the "prima facie" language in secs.31 and 38, or how sec.37A has been applied to particular categories of consular officers or authorised employees) cannot be supported from the supplied material alone. The text does not present judicial interpretations, sample rulings, or citations.
Practitioners seeking litigation history , reported decisions applying secs.31, 37A, 38, 43, 61 or 67 , must consult case reporters and online law databases, because the Act extract does not provide that information.
The absence of litigation references in the statutory text means that all evaluative claims below about how courts might treat the presumptions are analytic in nature; they are not citations to judicial treatment. Any statements about how burdens of proof may shift or how judges must exercise discretion derive from the statutory wording itself (for example the "deemed prima facie" phrasing in secs.31 and 38) rather than from recorded case law present in the supplied text.
In short, the statute excerpt contains no litigation history; for precedential authority or to assess how courts have operationalised the statutory mechanisms, a practitioner will need to research reported decisions externally.
Gotchas
The Act’s surviving provisions yield several practical pitfalls for practitioners and clients. Each "gotcha" below is grounded in the statutory language supplied.
Prima facie does not equal irrebuttable: secs.31 and 38 declare certified copies and consular seals/signatures to be "deemed prima facie" evidence of certification or authenticity (sec.31, ssec.2; sec.38). That presumption eases initial admission but can be rebutted. Opposing parties can still challenge authenticity, which may require further proof, forensic evidence or cross-examination. Do not assume a certificate ends all contest.
Who may certify for sec.31 is jurisdiction‑specific: sec.31 distinguishes between equitable jurisdiction (master in equity) and common law/ ecclesiastical jurisdiction (prothonotary or chief clerk) (sec.31, ssec.1). Using the wrong certifier risks rejection of the simplified admission route and may require production of originals. Confirm the originating judgment’s jurisdiction before obtaining certification.
"Purports to be so certified" is helpful but creates risk: sec.31, ssec.2 states such copies "shall be deemed prima facie to be so certified if they purport to be so certified." That enables reliance on a document that only appears to have the requisite certification. However, if a document only purports to be certified and is later shown to be fraudulent or improperly certified, admission can be overturned and costs or credibility consequences may follow.
Territorial and functional limits on consular acts: sec.37A applies only to acts "in any country or place outside the Commonwealth of Australia" and permits notarial acts that "if done in the United Kingdom ... a notary public could do" (sec.37A, ssec.2). That phrasing creates two constraints: geographic (outside the Commonwealth) and functional (acts analogous to those a UK notary could do). Practitioners must check that the particular notarial act sought fits within that functional scope and that it was done outside Australia.
Narrow definition of "consular officer": sec.37A defines "consular officer" by listing specific offices and ties "authorised employee" to the Consular Fees Act 1955 (Cwlth) (sec.37A, ssec.1). The textual definition is particular; a person who is not one of the listed officeholders or not authorised under the Consular Fees Act may not qualify. Do not assume any embassy official can serve; check the office and authorisation.
Reliance on external Commonwealth instruments: sec.37A’s reliance on the Consular Fees Act 1955 and sec.38’s references to the Australian Consular Officers’ Notarial Powers and Evidence Act 1946 mean admissibility may depend on federal administrative lists or definitions. Practitioners must verify current Commonwealth authorisations; the state Act alone does not guarantee admissibility if the federal authorisation is lacking or revoked.
Crown subpoena exception for prisoner depositions: sec.67 excludes depositions where the witness has been subpoenaed by the Crown in due time before trial (sec.67, ssec.2). If the prosecution has subpoenaed a witness, the accused cannot rely on the justices’ certificate route to admission. Practitioners representing accused persons should carefully check subpoena history and timing.
The text shows numerous omissions: many sections are marked as omitted (e.g. "om 1977 No. 47 ..."). That creates the risk of relying on provisions that no longer exist. Always cross-check the current consolidated statute to ensure a provision shown in an older source remains in force; the supplied extract is partial and contains explicit omission signals (multiple "om 1977 ..." annotations).
Civil addresses rule is concise and may be superseded by court rules: sec.43 provides a short statutory rule on the order of addresses, but contemporary court rules may regulate time limits, oral vs. written addresses, page limits, or other procedure. Do not assume sec.43 overrides court rules or practice directions; check current procedural rules in the relevant jurisdiction (sec.43, subsecs.1-3).
No penalty provisions in the text: because the supplied material contains no express penalties for failure to comply with its formalities, remedies for non‑compliance are primarily evidentiary. That means loss of admissibility, not statutory fines, but practitioners should still expect costs consequences and adverse case outcomes if critical evidence is excluded.
Ambiguity over "notarial act" scope: sec.37A ties notarial competence to what a UK notary could do, but it does not list discrete acts. This can generate disputes over whether a particular act (e.g. certification of corporate signatures, powers of attorney, or complex transactional certificates) falls within the authorised class. When in doubt, seek specialist certification or invoke dual certification lines.
These "gotchas" arise directly from the statutory words. They point to routine diligence steps: verify certifier identity, confirm consular office and authorisation, check Crown subpoenas, and consult the consolidated statute and relevant Commonwealth instruments to confirm present law.
How to comply
This section gives concrete compliance steps and checklists drawn from the statutory text to help practitioners and clients secure the evidentiary advantages the Act provides. Each step refers to the relevant section(s).
Admitting certified copies of Supreme Court judgments (sec.31)
Confirm the originating court and jurisdiction of the judgment, decree, rule or order.
For equitable jurisdiction documents, obtain a copy certified under the hand of the master in equity of the Supreme Court at Brisbane; for common law or ecclesiastical jurisdiction documents, obtain certification under the prothonotary or chief clerk (sec.31, ssec.1).
When lodging or tendering the copy in another Queensland court or tribunal, include the certified copy and ensure the certification appears on the face of the copy because the statute deems a copy "prima facie to be so certified if it purports to be so certified" (sec.31, ssec.2).
Retain originals or chain-of-custody proof in case the opposing party seeks to rebut the prima facie presumption.
Using consular officers or authorised employees for oaths and notarial acts abroad (sec.37A; sec.38)
Determine that the act will be done "in any country or place outside the Commonwealth of Australia" (sec.37A, ssec.2).
Verify that the person performing the act is a qualifying "consular officer" as defined in sec.37A, ssec.1 (for example ambassador, consul-general, trade commissioner, etc.) or an "authorised employee" as defined under section 3(c)/(d) of the Consular Fees Act 1955 (Cwlth) referenced in sec.37A, ssec.1.
Ascertain whether the notarial act sought is within the functional scope described (i.e. an act which, if done in the United Kingdom, a notary public could do) (sec.37A, ssec.2).
Ensure the consular officer or authorised employee signs and applies an official seal where appropriate. Sec.38 makes such documents "prima facie" evidence of the seal and signature without further proof (sec.38).
Keep records of the consular authorisation or a formal receipt showing the person’s official capacity; the Commonwealth Consular Fees Act may list authorised employees and fees relevant to compliance.
Filing and using affidavits taken under the Act (sec.61)
For affidavits or affirmations taken under the Act, file them in the receiving Queensland court with any required file covers or affidavits of service in accordance with that court’s rules, noting sec.61’s rule that such instruments "shall be of the same force and effect" as if taken before the court (sec.61).
Where the affidavit originated under this Act outside the court, ensure the person taking the affidavit is a person identified in the Act or in relevant rules to avoid later challenge on authority grounds.
Using depositions of prisoners’ witnesses (sec.67)
If relying on a witness’s deposition on behalf of an accused, confirm one of the statutory grounds applies: the witness has died before trial; the witness is so ill as not to be able to travel; or the committing justices certified the evidence as material and that the prisoner is willing to attend but cannot bear the expense (sec.67, ssec.1).
Check Crown subpoena records. If the Crown served a subpoena on the witness "in due time before the trial" then sec.67 disallows admission of the deposition on that basis (sec.67, ssec.2).
Preserve the justices’ certificate and documentary proof of the witness’s incapacity or death for tendering to the jury.
Civil trial addresses (sec.43)
Follow sec.43 sequence: if you are the party who begins, note you may have a second address where the opponent does not announce their intention to adduce evidence at the close of your case; the opponent may open and sum up; and the right to reply is as previously understood (sec.43, ssec.1-3).
Check the current court rules for any time limits or directions that may augment or refine sec.43. The statute provides a baseline; court practice may add procedural constraints.
Documentation and recordkeeping
Keep clear, dated records of who certified what and when (master in equity, prothonotary, chief clerk, consular officer), noting that statutory presumptions depend on the certification or the appearance of certification (secs.31, 38).
Where documents "purport" to be certified, maintain evidence of how that appearance was created (official stamp impressions, scanned certified copies from court records, email confirmations from court registries).
Verify external authorisations and fees
Where sec.37A is to be invoked, confirm the relevant Commonwealth authorisations under the Consular Fees Act 1955 and applicable notarial powers legislation (sec.37A, ssec.1; sec.38 references). This may involve checking Commonwealth lists of authorised employees or embassy/consulate directories and confirming applicable fees.
Prepare for challenges to prima facie status
Anticipate that opposing parties may challenge authenticity. Keep originals and supporting proof (chain of custody, registry confirmations, the original certified copy) available. The "prima facie" label makes initial admission easier but does not foreclose rebuttal (secs.31, 38).
Liaise with registries and consular posts early
For cross-border transactions or litigation, plan early to obtain consular attestations and certified copies, because obtaining signatures from masters/prothonotaries or consular officers can take time and may involve fee schedules governed by the Consular Fees Act (sec.37A ssec.1).
In short, compliance is primarily documentary: ensure the right official certifies the document, confirm functional and territorial scope for consular acts, retain originals where possible, and check Crown subpoena history in criminal or prisoner-related matters. The relevant statutory hooks are secs.31, 37A, 38, 43, 61 and 67.