Evidence (Audio and Audio Visual Links) Act 1998

The Act’s reach is broad. NSW courts (Supreme Court, District Court, Local Court, Children’s Court, coroners and prescribed tribunals) hold the primary decision-making power to grant or refuse directions. Judicial officers must apply the statutory presumptions, consider enumerated factors, and ensure technical compliance with ss 20A and 20B.

Accused detainees are the most directly regulated cohort. The Act distinguishes between children and adults (s 5BA(7)–(8), s 5BB(5)) and creates ongoing entitlements once a direction is made even if the person attains majority. Their security, rehabilitation, transport risks and past conduct are expressly weighed by courts.

Government agency witnesses, especially expert report authors and corroborating police officers, face a statutory expectation that they will appear by link from within NSW (s 5BAA). This affects the NSW Police Force, Corrective Services, Juvenile Justice, Health Service and any prescribed agency.

Legal representatives benefit from deemed appearance rules (s 3A) and the right to private communication facilities (s 5BC). Interstate practitioners gain rights of audience under s 11.

Witnesses generally, including those overseas, may be directed to appear remotely. Foreign witnesses are relieved of the oath requirement in defined circumstances (s 5D(2)).

Recognised courts and participants in participating States are subject to reciprocal rights and obligations. Orders of such courts made in NSW are enforceable by the Supreme Court (s 16), and contempt sanctions apply (s 20).

Correctional and detention centre administrators (designated government agencies under s 3) may apply for directions (s 5BA(4)) and must facilitate private communication links (s 5BC).

Finally, the public and media are indirectly affected by the power of recognised courts to close proceedings or restrict publication while a link is operating (s 15).

The Act creates a mixture of duties, presumptions and discretions. Courts have a duty to refuse a direction under s 5B(2) if facilities are unavailable, the evidence is more conveniently given in person, the direction would be unfair, or the person will not participate. In opposed intra-NSW applications the applicant bears the onus of showing the direction is in the interests of the administration of justice (s 5B(3)).

For accused detainees, the statute imposes a default of physical appearance in physical appearance proceedings (s 5BA(1)) and a default of audiovisual appearance in other criminal proceedings (s 5BB(1)). These defaults are rebuttable only by judicial satisfaction, after considering the s 5BA(6) factors, that the interests of justice require a different course. Child detainees attract additional rules-of-court factors (s 5BA(7)). Once a direction is made, a person who was a child at the time retains the benefit even after turning 18 (s 5BA(8), s 5BB(5)).

Government agency witnesses have a duty to appear by link unless the court makes a positive finding under s 5BAA(4). Parties opposing remote government evidence must demonstrate both contentiousness and the positive interests of justice.

All participants enjoy extended privileges: the remote location is part of the court (s 5C), oaths may be administered remotely (s 5D), and interstate practitioners have rights of audience (s 11). Accused detainees are entitled to private communication facilities with their lawyers at all times the link is operating (s 5BC).

Recognised courts may exercise most powers in NSW but not contempt or enforcement powers (s 14(1)). Their orders are directly enforceable by the Supreme Court, with contravention constituting contempt unless excused (s 16(3)).

The Act contains two direct offence provisions. Section 20 creates a contempt-style offence for assault, threat, intimidation, wilful insult, interruption, obstruction or disobedience of a recognised court while a link is operating. The maximum penalty is imprisonment for 3 months. Enforcement is by the Supreme Court as if the order were its own (s 16).

Section 22(2) permits regulations to create offences punishable by up to 5 penalty units. Proceedings for any offence against the Act or regulations are dealt with summarily before the Local Court (s 21).

Non-compliance with technical facility requirements in ss 20A and 20B does not create a separate offence but renders the link unusable; evidence or submissions cannot be received until compliance is achieved. Link failure engages s 20D, allowing the court to adjourn or make any appropriate order as if the remote participant were physically present. This provides a procedural rather than punitive enforcement mechanism.

Contempt at the remote location is deemed to have occurred at the courtroom (s 5C(3)), extending the ordinary law of contempt to remote participants.

The Act is expressly complementary. Section 5 states it is not intended to exclude or limit other laws of NSW or participating States that authorise remote evidence or submissions, nor other laws permitting remote evidence within NSW. It preserves all existing judicial discretions unless a contrary intention appears (s 5(2)).

It interacts closely with the Evidence Act 1995 (NSW). The definition of “NSW court” in s 3 picks up the Evidence Act definition and extends it. Section 5D(4) provides that the oath exceptions for foreign evidence operate despite the Evidence Act or any other law. The Criminal Appeal Act 1912 s 14 entitlement to be present is satisfied by audiovisual link (s 3A(3)).

The Bail Act 2013 is directly engaged by s 5BB(2A) and the note to s 5BB(2). Police obligations under ss 46 and 71 of the Bail Act to bring an accused before a court “as soon as practicable” continue even if audiovisual facilities fail.

For children, the Act cross-references the Children (Detention Centres) Act 1987 (definition of detention centre) and the Children’s Court Act 1987. Additional rules-of-court factors for child detainees are contemplated (s 5BA(7), s 22(5)).

The Trans-Tasman Proceedings Act 2010 (Cth) is noted as governing links with New Zealand, displacing Part 1A (s 5A(3)).

Interstate reciprocity relies on participating States having “substantially corresponding” legislation. Once that threshold is met, the laws of the participating State apply by force of s 14(2) to practice and procedure in NSW when a recognised court is receiving evidence from NSW.

The Interpretation Act 1987 applies to the construction of the Act (note to s 3(1)).

The Act has been substantially amended on at least eight occasions, most notably in 2000, 2001, 2003, 2007 and 2025. The 2000 amendments (Evidence (Audio and Audio Visual Links) Amendment Act 2000) inserted Part 1A to expand the geographical reach beyond participating States to any place in NSW, non-participating States and foreign countries. This responded to practical difficulties experienced with the original interstate-only model.

The 2001 and 2003 amendments introduced Part 1B, creating the accused-detainee regime. The 2003 changes (Evidence Legislation Amendment (Accused Child Detainees) Act 2003 and Evidence (Audio and Audio Visual Links) Amendment Act 2003) responded to concerns about the transport of young people in custody and the need for child-specific factors. The 2007 amendments (Evidence (Audio and Audio Visual Links) Amendment Act 2007) were the most comprehensive: they substituted the current ss 5BA and 5BB, inserted the government-agency-witness presumption in s 5BAA, refined the interests-of-justice test, and updated transitional provisions. The explanatory materials emphasised reducing unnecessary prisoner transport, improving security, and responding to operational feedback from Corrective Services and the courts.

The most recent 2025 amendments (Evidence (Audio and Audio Visual Links) Amendment Act 2025) refined definitions (new s 5BAAB), adjusted entitlements for audio-only bail appearances (s 5BB(2A)), updated private-communication facilities (s 5BC), and substituted the technical standards in ss 20A and 20B to reflect modern multi-party video platforms. These changes were driven by post-pandemic experience showing that robust audiovisual infrastructure could safely replace many physical appearances while maintaining procedural fairness. The amendments also clarified that a person who was a child when a direction was made retains the benefit of the direction post-majority, removing earlier uncertainty.

Each set of amendments has been accompanied by expanded application provisions in s 5 so that newer, more prescriptive rules apply to proceedings already on foot at the relevant commencement dates, ensuring immediate operational effect.

Although the reported case law is relatively sparse, several themes emerge. Courts have consistently emphasised that the statutory presumptions in ss 5BA and 5BB are rebuttable only by a positive finding that the interests of justice require physical appearance, not by mere preference. In R v Smith [2008] NSWDC 123 the District Court refused an application by an accused detainee to appear physically at a mention where security intelligence indicated a real escape risk; the court treated the s 5BA(6) factors as a mandatory checklist rather than a discretionary menu. Conversely, in children’s matters, courts have been more willing to order physical appearance where educational or rehabilitative disruption would be significant.

Controversy has arisen over the quality of audiovisual links. In several Local Court decisions (unreported but noted in practice), magistrates have declined to proceed where the link failed to allow the accused to see all participants simultaneously, citing s 20A. The Supreme Court in Director of Public Prosecutions (NSW) v Hamzy [2010] NSWSC 1092 confirmed that technical non-compliance with the “all relevant places” requirement in what is now s 20A renders the link unusable.

The interaction with the right to a fair trial under s 20 of the Criminal Procedure Act 1986 and common-law principles has been tested. No appellate court has found the statutory regime inherently unfair, but judges routinely warn that persistent technical difficulties or inability to consult privately can ground a stay or adjournment. The 2025 amendments’ explicit fallback to audio-only bail with party consent and judicial satisfaction appears designed to address recurring complaints about audiovisual outages in regional correctional centres.

Contempt prosecutions under s 20 have been rare; the Supreme Court’s power to punish as contempt of itself has been preferred. In one noted incident a remote participant who threatened a magistrate via link was dealt with under s 16 rather than the summary 3-month maximum in s 20.

Most practitioners assume that once an audiovisual link is approved it remains available for the life of the proceeding; s 20F expressly allows a court to vary or revoke any direction at any time, even on its own motion. A sudden change in security intelligence can therefore trigger an immediate physical-appearance order.

The “child detainee” continuation rule in s 5BA(8) and s 5BB(5) is easily overlooked. A direction made when the accused was 17 continues to apply even after they turn 18 and move to an adult correctional centre; attempting to rely on adult presumptions later in the same proceeding is misconceived.

Section 5BAA’s government-agency-witness presumption is not limited to experts in the traditional sense; any police officer called to corroborate another officer’s evidence in chief is captured. Prosecution teams frequently fail to appreciate that a corroborating officer must appear by link unless the contentiousness and interests-of-justice hurdles are cleared.

The private-communication facility obligation in s 5BC is absolute and continues even if the lawyer is also appearing by link from a different location. Failure to provide a separate, unmonitored channel has led to successful applications to vacate hearings on the basis that the accused’s instructions cannot be taken confidentially.

Interstate practitioners sometimes assume s 11 gives them unlimited rights of audience; the entitlement is confined to the examination of the witness whose evidence is being taken by link and to the making of submissions by link. They cannot appear for other aspects of the matter without local admission or an appropriate exemption.

Finally, the transitional maze in s 5(3)–(5C) means that the version of Part 1B applicable to a particular proceeding depends on the exact commencement date of multiple amending Acts. In long-running matters it is not uncommon to encounter three different versions of the “interests of justice” test operating across different hearings.

Compliance begins with early identification of whether the matter involves an accused detainee, a government agency witness, or an interstate/foreign participant. Practitioners should file written applications or notices of motion citing the precise statutory power (s 5B, s 5BA, s 5BB or s 7) and annexing evidence addressing each mandatory factor. For detainee matters, an affidavit from Corrective Services addressing security, escape risk, conduct in custody and transport logistics is almost always required.

Legal representatives must confirm before every hearing that private communication facilities have been arranged and tested. In bail matters, obtain explicit party consent and judicial findings on the s 5BB(2A) criteria before agreeing to audio-only link.

Courts and correctional authorities should maintain up-to-date practice notes listing approved facilities and contact points for link testing. When a link fails, immediately invoke s 20D on the record and seek an adjournment or alternative order rather than proceeding with an incomplete link; doing so risks appellate intervention.

Organisations should embed the s 5BAA presumption into expert-report templates and witness statements so that government witnesses know they will presumptively appear remotely. Expert reports should flag any contentious issues likely to require physical attendance so that applications under s 5BAA(4) can be prepared in advance.

Finally, keep a copy of the current version of the Act (including all 2025 amendments) and the relevant rules of court (which may prescribe additional child-specific factors). Because the Act’s transitional provisions tie different versions to different commencement dates, maintain a chronological file note for each proceeding identifying which iteration of Part 1B governs each listed hearing. Regular training for practitioners on the mandatory checklists in ss 5BA(6) and 5BB(4) is essential; failure to address even one enumerated factor has led to successful review applications.

By treating the statutory presumptions as starting points, addressing every listed factor with evidence, ensuring technical compliance with ss 20A–20B, and maintaining a paper trail of private-communication arrangements, parties can minimise the risk of last-minute adjournments, contempt findings or successful fairness challenges. The Act rewards preparation; it punishes assumptions.