The Act lets NSW courts take evidence and submissions remotely by audio or audio‑visual link, including from other participating States, and treats remote sites as part of the court for evidence, contempt and oaths. It gives courts wide discretion to direct remote participation, sets technical minimums, and permits expense orders for providing links.
It imposes special rules for detainees (defaulting many hearings to AV unless court orders otherwise), requires private lawyer–client facilities, and expects government witnesses to give evidence remotely where facilities exist.
The Evidence (Audio and Audio Visual Links) Act 1998 (NSW) establishes a statutory framework authorising NSW courts to receive evidence and submissions via audio link (telephone or similar one-way sound facilities) or audio visual link (closed-circuit television or equivalent two-way sound-and-vision facilities) instead of requiring physical presence in the courtroom. Its core operative provisions are contained in Parts 1A, 1B and 1C, supplemented by reciprocal interstate arrangements in Parts 2 and 3.
Part 1A (ss 5A–5BAA) applies to any proceeding in a NSW court (defined in s 3 to include courts under the Evidence Act 1995, coroners, prescribed tribunals and Children’s Registrars). Section 5B empowers a NSW court, on its own motion or on application, to direct that any person (whether or not a party) give evidence or make submissions by audio or audio visual link from any place inside or outside NSW, including overseas, provided the facilities are available, the evidence cannot more conveniently be given in person, the direction would not be unfair, and the person will actually participate (s 5B(2)). A specific presumption operates in favour of government agency witnesses (defined in s 5BAA(5) to include expert report authors from the Government Service, NSW Health Service, police corroborating witnesses and prescribed classes). Such witnesses must give evidence by link from within NSW unless the court is satisfied the evidence is likely to be contentious and that physical attendance is in the interests of the administration of justice (s 5BAA(4)).
Part 1B (ss 5BA–5BC) imposes a more prescriptive regime for “accused detainees” (persons in custody in correctional centres, detention centres, police stations or other places of detention, including defendants in summary matters). In “physical appearance proceedings” (trials including arraignment, hearings of charges, and fitness inquiries—s 3), the detainee must appear physically unless the court directs otherwise after considering an exhaustive list of factors in s 5BA(6) (personal security risks, escape risk, past behaviour, conduct in custody, rehabilitation disruption, transport safety, resource efficiency and any other relevant matter). Parties may consent to audiovisual link, but the court must still be satisfied the direction serves the administration of justice (s 5BA(3), (5)). In all other criminal proceedings, audiovisual link is the default (s 5BB(1)), subject to availability and a residual discretion to require physical appearance if the interests of justice so require after weighing similar factors (s 5BB(4)). Bail proceedings attract additional safeguards: audiovisual link is preferred, but audio-only link is permitted only where audiovisual facilities have failed, audio is available, parties consent and the court finds it in the interests of justice (s 5BB(2A)). Facilities for private communication between the detainee and their legal representative must be provided regardless of where each is located (s 5BC).
Current sections
Direct links to the current provisions in Evidence (Audio and Audio Visual Links) Act 1998.
This Act commences on a day or days to be appointed by proclamation.
3
Interpretation
3 Interpretation
3 Interpretation
(1) In this Act—
accused detainee means a person who is being held in custody in a correctional centre, detention centre, police station or other place of detention and includes, in relation to a proceeding for a summary offence, a defendant who is so being held.
audio link means facilities (including telephone) that enable audio communication between persons at different places.
audio visual link means facilities (including closed-circuit television) that enable audio and visual communication between persons at different places.
designated government agency means the following—
(a) the Department of Corrective Services,
(b) the Department of Juvenile Justice,
(c) any other government agency prescribed by the regulations.
(c) a tribunal prescribed by the regulations as a NSW court for the purposes of this Act, or
(d) a Children’s Registrar exercising any function of the Children’s Court conferred or imposed on the Registrar by or under the Children’s Court Act 1987.
(including such a court exercising federal jurisdiction) and includes any person or body (other than a court) that, in exercising a function under the law of the State, is required to apply the laws of evidence.
participating State means another State in which provisions of a law in terms substantially corresponding to Parts 2 and 3 are in force.
physical appearance proceeding means the following—
(a) a trial, including an arraignment on the day appointed for the trial,
(b) a hearing of charges,
(c) an inquiry into a person’s fitness to be tried for an offence.
recognised court means a court or tribunal of a participating State that is authorised by the provisions of a law of that State in terms substantially corresponding to Parts 2 and 3 to direct that evidence be taken or submissions made by audio link or audio visual link from New South Wales.
State includes Territory.
tribunal of a State means a person or body authorised by or under a law of the State to take evidence on oath or affirmation.
Note.
The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.
(2) A reference in this Act (other than Part 1B) to making a submission to a court includes a reference to making an appearance before the court.
(3) (Repealed)
s 3: Am 2000 No 16, Sch 1 [1]; 2001 No 46, Sch 1 [1]–[3]; 2003 No 57, Sch 1 [1]–[3]; 2007 No 75, Sch 1 [1]–[4]; 2025 No 34, Sch 1[1].
3A
Appearances and entitlements to be present before courts
3A Appearances and entitlements to be present before courts
3A Appearances and entitlements to be present before courts
(1) A requirement by or under any other Act that a person appear (or be brought or be present) before a court is taken to be satisfied if the person appears before the court by way of an audio link or audio visual link under this Act.
Note.
Part 1B of this Act contains provisions with respect to the appearance by audio visual link of accused detainees who are in custody in criminal proceedings.
(2) An entitlement of a person under another Act or law for a person to be present in proceedings before a court relating to bail is taken to be satisfied if either of the following are used in relation to the person under this Act—
(a) audio links,
(b) audio visual links.
Note—
See section 5BB(2A), which provides for the criteria that must be satisfied before a person may be present by audio link in proceedings before a court relating to bail.
(3) Any entitlement of a person under section 14 of the Criminal Appeal Act 1912 to be present in proceedings on the hearing of an appeal is taken to be satisfied if audio visual links are used in relation to the person under this Act.
s 3A: Ins 2001 No 46, Sch 1 [4]. Am 2003 No 76, Sch 1 [1]; 2007 No 75, Sch 1 [5]; 2025 No 34, Sch 1[2].
4
Notes
4 Notes
4 Notes
Notes included in this Act do not form part of this Act.
5
Application of Act
5 Application of Act
5 Application of Act
(1) This Act is not intended to exclude or limit the operation of any other law of the State or a participating State that makes provision for the taking of evidence or making of submissions—
(a) outside the State or participating State for the purposes of a proceeding in that State, or
(b) in the State or participating State for the purposes of a proceeding outside that State.
(1A) This Act is not intended to exclude or limit the operation of any other law of the State or another place that makes provision for the taking of evidence or making of submissions in the State for the purposes of a proceeding in the State.
(2) Unless a contrary intention is shown, nothing in this Act limits or otherwise affects any discretion that a NSW court or a recognised court has with respect to the conduct of a proceeding.
(3) This Act (other than Part 1A or 1B) extends to any proceeding pending in a NSW court or a recognised court on the commencement of this section.
(4) Part 1A extends to any proceeding pending in a NSW court or court of a place outside New South Wales on the commencement of this subsection.
(5) Part 1B (as originally enacted) extends to any preliminary criminal proceeding or relevant criminal proceeding pending in a NSW court on the commencement of this subsection.
(5A) Part 1B (as amended by the Evidence Legislation Amendment (Accused Child Detainees) Act 2003) extends to any preliminary criminal proceeding or relevant criminal proceeding pending in a NSW court after the commencement of subsection (5) and at the commencement of this subsection.
(5B) Part 1B (as amended by the Evidence (Audio and Audio Visual Links) Amendment Act 2003) extends to any preliminary criminal proceeding or relevant criminal proceeding pending in a NSW court after the commencement of subsection (5) and at the commencement of this subsection.
(5C) Part 1B (as amended by the Evidence (Audio and Audio Visual Links) Amendment Act 2007) extends to any criminal proceedings pending in a NSW court after the commencement of subsection (5) and at the commencement of this subsection.
(6) (Repealed)
s 5: Am 2000 No 16, Sch 1 [2]–[4]; 2001 No 46, Sch 1 [5]–[7]; 2003 No 57, Sch 1 [5] (am 2003 No 76, Sch 2 [2]) [6]; 2003 No 76, Sch 1 [2] [3]; 2007 No 6, Sch 2.3; 2007 No 75, Sch 1 [6]–[8]; 2007 No 94, Sch 1.41; 2012 No 42, Sch 1.7.
Part 1A
Use of audio links or audio visual links with places in NSW, non-participating States and foreign countries in proceedings in NSW courts
Part 1A Use of audio links or audio visual links with places in NSW, non-participating States and foreign countries in proceedings in NSW courts
Part 1A Use of audio links or audio visual links with places in NSW, non-participating States and foreign countries in proceedings in NSW courts
pt 1A: Ins 2000 No 16, Sch 1 [5].
5A
Application of this Part
5A Application of this Part
5A Application of this Part
(1) This Part applies to any proceeding (including a criminal proceeding) in or before a NSW court.
(2) An application cannot be made, and the court may not give a direction, under this Part for the giving of evidence or making of a submission to the court by audio link or audio visual link from any place outside New South Wales that is a participating State.
(3) An application cannot be made, and the court may not give a direction, under this Part for the giving of evidence or making of a submission to the court by audio link or audio visual link from any place in New Zealand.
Note.
Part 6 of the Trans-Tasman Proceedings Act 2010 of the Commonwealth makes provision for audio links and audio visual links with New Zealand.
s 5A: Ins 2000 No 16, Sch 1 [5].
5B
Taking evidence and submissions from outside courtroom or place where court is sitting—proceedings generally
5B Taking evidence and submissions from outside courtroom or place where court is sitting—proceedings generally
5B Taking evidence and submissions from outside courtroom or place where court is sitting—proceedings generally
(1) Subject to any applicable rules of court, subsection (2A) and section 5BAA, a NSW court may, either on its own motion in, or on the application of a party to, a proceeding before the court, direct that a person (whether or not a party to the proceeding) give evidence or make a submission to the court by audio link or audio visual link from any place within or outside New South Wales, including a place outside Australia, other than the courtroom or other place at which the court is sitting.
(2) The court must not make such a direction if—
(a) the necessary facilities are unavailable or cannot reasonably be made available, or
(b) the court is satisfied that the evidence or submission can more conveniently be given or made in the courtroom or other place at which the court is sitting, or
(c) the court is satisfied that the direction would be unfair to any party to the proceeding, or
(d) the court is satisfied that the person in respect of whom the direction is sought will not give evidence or make the submission.
(2A) A court must not make a direction under this Part in relation to the giving of evidence or making of a submission by audio visual link by any accused detainee in any criminal proceeding in relation to the detainee concerning an offence alleged to have been committed by the detainee. However, this subsection does not prevent the making of such a direction in relation to an accused detainee in any other proceeding to which this Part applies.
Note.
Part 1B of this Act contains provisions with respect to the appearance of accused detainees who are in custody in criminal proceedings.
(3) In a proceeding in which a party opposes the making of a direction for the giving of evidence or making of a submission to the court by audio link or audio visual link from any place within New South Wales other than the courtroom or other place where the court is sitting, the court must not make the direction unless the party making the application satisfies the court that it is in the interests of the administration of justice for the court to do so.
s 5B: Ins 2000 No 16, Sch 1 [5]. Am 2001 No 46, Sch 1 [8]–[10]; 2003 No 76, Sch 1 [4]; 2004 No 55, Sch 2.12; 2007 No 75, Sch 1 [9]–[11]; 2015 No 67, Sch 1.9.
5BAA
Taking evidence of government agency witnesses from outside courtroom or place where court is sitting—proceedings generally
5BAA Taking evidence of government agency witnesses from outside courtroom or place where court is sitting—proceedings generally
5BAA Taking evidence of government agency witnesses from outside courtroom or place where court is sitting—proceedings generally
(1) Subject to any applicable rules of court, a government agency witness must, unless the court otherwise directs, give evidence to the court by audio link or audio visual link from any place within New South Wales.
(2) Subsection (1) does not apply unless the necessary audio links or audio visual links are available or can reasonably be made available.
(3) The court may make a direction under subsection (1) on its own motion or on the application of a party to the proceedings.
(4) The court may make such a direction only if it is satisfied—
(a) that the evidence to be given is likely to be contentious, and
(b) that it is in the interests of the administration of justice for the government agency witness to give evidence by appearing physically before the court.
(5) In this section—
expert, in relation to any issue, means a person who has such knowledge or experience of, or in connection with, that issue, or issues of the character of that issue, that his or her opinion on that issue would be admissible in evidence.
expert’s report means a written statement by an expert (whether or not an expert witness in the proceedings concerned) that sets out the expert’s opinion and the facts, and assumptions of fact, on which the opinion is based and includes a hospital report.
government agency witness means the following—
(a) a member of staff of the Government Service or the NSW Health Service, or a person employed in or engaged by any government agency, who has provided an expert’s report for use in evidence in proceedings or proposed proceedings or who is called as an expert to give opinion evidence in proceedings,
(b) a member of the NSW Police Force called to give evidence in proceedings to corroborate evidence in chief given by another member of the NSW Police Force for the prosecution,
(c) any other witness of a class prescribed by the regulations.
hospital report means a written statement concerning a patient, made by or on behalf of a hospital, that the party serving the statement intends to adduce in evidence in chief at the trial.
s 5BAA: Ins 2007 No 75, Sch 1 [12]. Am 2009 No 77, Sch 2.10 [1].
Part 1B
Use of audio visual links within places in NSW for appearances of accused detainees in proceedings in NSW courts
Part 1B Use of audio visual links within places in NSW for appearances of accused detainees in proceedings in NSW courts
Part 1B Use of audio visual links within places in NSW for appearances of accused detainees in proceedings in NSW courts
pt 1B: Ins 2001 No 46, Sch 1 [11].
5BAAB
Definition
5BAAB Definition
5BAAB Definition
In this part—
appear, before a NSW court, includes—
(a) be brought before a NSW court, and
(b) be present before a NSW court.
s 5BAAB: Ins 2025 No 34, Sch 1[3].
5BA
Accused detainee to appear physically in physical appearance proceedings
5BA Accused detainee to appear physically in physical appearance proceedings
5BA Accused detainee to appear physically in physical appearance proceedings
(1) An accused detainee who is charged with an offence and is required to appear before a NSW court in physical appearance proceedings concerning the offence must, unless the court otherwise directs, appear physically before the court.
Note.
accused detainee and physical appearance proceedings are defined in section 3.
(2) (Repealed)
(3) Subsection (1) does not apply if the parties to the proceeding consent to the accused detainee appearing before the court by audio visual link from any place within New South Wales at which the accused detainee is in custody other than the courtroom or place where the court is sitting.
(4) The court may make a direction under subsection (1) on its own motion or on the application of any party to the proceeding or of any person on behalf of a designated government agency.
(5) The court may make such a direction only if it is satisfied that it is in the interests of the administration of justice for the accused detainee to appear before the court by audio visual link from a place within New South Wales at which the person is in custody other than the courtroom or place where the court is sitting.
(6) Without limiting the factors that the court may take into account in determining whether it is in the interests of the administration of justice to make a direction under subsection (1), the court must take into account such of the following factors as are relevant in the circumstances of the case—
(a) the risk that the personal security of a particular person or persons (including the accused detainee) may be endangered if the accused detainee appears in the courtroom or place where the court is sitting,
(b) the risk of the accused detainee escaping, or attempting to escape, from custody when attending the courtroom or place where the court is sitting,
(c) the behaviour of the accused detainee when appearing before a court in the past,
(d) the conduct of the accused detainee while in custody, including the accused detainee’s conduct during any period in the past during which the accused detainee was being held in custody in a correctional centre or detention centre,
(e) the potential for disruption of the accused detainee’s participation in a rehabilitation or education program if the accused detainee were to be transported to, and appear in, the courtroom or place where the court is sitting,
(f) safety and welfare considerations in transporting the accused detainee to the courtroom or place where the court is sitting,
(g) the efficient use of available judicial and administrative resources,
(h) any other relevant matter raised by a party to the proceeding or other applicant for the making of the direction.
(7) If the accused detainee is a child, the court must also take into account such additional factors to those specified in subsection (6) as are relevant in the circumstances of the case and that are specified in rules of court.
(8) A person who was a child when a direction was made under this section to appear before a court by audio visual link is entitled to continue to appear before the court by audio visual link in accordance with the direction even if the person becomes an adult before the conclusion of the proceeding concerned.
s 5BA: Ins 2001 No 46, Sch 1 [11]. Am 2003 No 57, Sch 1 [7]; 2003 No 76, Sch 1 [5] [6]. Subst 2007 No 75, Sch 1 [13]. Am 2013 No 38, Sch 1.4; 2017 No 44, Sch 1.12; 2024 No 59, Sch 2.4[1]–[4]; 2025 No 34, Sch 1[4] [5].
5BB
Accused detainee to appear by audio visual link in criminal proceedings other than physical appearance proceedings
5BB Accused detainee to appear by audio visual link in criminal proceedings other than physical appearance proceedings
5BB Accused detainee to appear by audio visual link in criminal proceedings other than physical appearance proceedings
(1) An accused detainee who is charged with an offence and is required to appear before a NSW court in criminal proceedings concerning the offence (other than physical appearance proceedings) must, unless the court otherwise directs, appear before the court by audio visual link.
Note.
accused detainee and physical appearance proceedings are defined in section 3.
(2) Subsection (1) does not apply unless the necessary audio visual links are available or can reasonably be made available.
Note—
The Bail Act 2013, section 46 requires a police officer to bring an accused person before a court as soon as practicable and section 71 requires a bail application to be dealt with as soon as reasonably practicable. If the audio visual link for any proceedings relating to bail under the Bail Act 2013, section 46 or 71 failed, or there were otherwise no audio visual link available for the proceeding, the obligation under section 46 or 71 to act as soon as practicable or reasonably practicable continues.
(2A) For proceedings relating to bail, the accused detainee may appear before the court by audio link only if—
(a) audio visual link fails or is otherwise not available, and
(b) audio link is available, and
(c) the parties to the proceedings consent to the use of audio link, and
(d) the court is satisfied the accused detainee appearing before the court by audio link is in the interests of justice.
(3) The court may make a direction under subsection (1) on its own motion or on the application of any party to the proceeding or of any person on behalf of a designated government agency.
(4) The court may make such a direction only if it is satisfied, after taking into account any factors that are relevant in the circumstances of the case together with any factors that are specified in rules of court, that it is in the interests of the administration of justice for the accused detainee to appear physically before the court.
(5) A person who was a child when a direction was made under this section to appear physically before a court is entitled to continue to appear before the court in accordance with the direction even if the person becomes an adult before the conclusion of the proceeding concerned.
(6) A head of jurisdiction for a court may, by practice note or other document that regulates the practice or procedure of the jurisdiction, direct that, despite subsection (1)—
(a) accused detainees required to appear before the court in proceedings relating to bail in particular locations are not required to appear by audio visual link, or
(b) a particular class of accused detainees required to appear before the court in proceedings relating to bail are not required to appear by audio visual link, or
(c) accused detainees required to appear before the court in proceedings relating to bail at particular times are not required to appear by audio visual link.
(7) If subsection (1) does not apply to an accused detainee because of the operation of subsection (6)(a), (b) or (c), the accused detainee must appear physically before the court, unless the court directs otherwise in the interests of the administration of justice.
s 5BB: Ins 2001 No 46, Sch 1 [11]. Am 2003 No 57, Sch 1 [8]; 2003 No 76, Sch 1 [7]–[9]; 2006 No 107, Sch 1.17 [1]. Subst 2007 No 75, Sch 1 [13]. Am 2025 No 34, Sch 1[4] [6] [7].
5BBA
5BBA
5BBA (Repealed)
5BC
Facilities for private communication
5BC Facilities for private communication
5BC Facilities for private communication
(1) Facilities are to be made available for private communication between an accused detainee appearing by audio link or audio visual link under this part and the person’s representative in the proceeding, regardless of whether the person’s representative is—
(a) at the place at which the court is sitting, or
(b) at another place and appearing by audio link or audio visual link.
(2) For subsection (1), a reference to appearing by audio link or audio visual link includes making a submission to the court by audio link or audio visual link.
s 5BC: Ins 2001 No 46, Sch 1 [11]. Am 2007 No 75, Sch 1 [15]. Subst 2025 No 34, Sch 1[8].
Part 1C
Provisions applying to Parts 1A and 1B generally
Part 1C Provisions applying to Parts 1A and 1B generally
Part 1C Provisions applying to Parts 1A and 1B generally
pt 1C, hdg: Ins 2001 No 46, Sch 1 [12].
5C
Premises to be considered part of court
5C Premises to be considered part of court
5C Premises to be considered part of court
(1) Any place within or outside New South Wales at which audio link or audio visual link facilities are being used for the purpose of a person giving evidence or making a submission in any proceeding under Part 1A or 1B is taken to be part of the NSW court that is sitting at a courtroom or other place for the purpose of conducting the proceeding.
(2) Subsection (1) has effect, for example, for the purposes of the laws relating to evidence, procedure, contempt of court or perjury.
(3) Subsection (1) also has the effect that any offence committed at the place where the person giving the evidence or making the submission is located is to be taken to have been committed at the courtroom or other place where the court is sitting for the purposes of the laws in force in New South Wales.
s 5C: Ins 2000 No 16, Sch 1 [5]. Am 2001 No 46, Sch 1 [13].
5D
Administration of oaths and affirmations
5D Administration of oaths and affirmations
5D Administration of oaths and affirmations
(1) Subject to subsection (2), an oath to be sworn or affirmation to be made by a person giving evidence by audio link or audio visual link under Part 1A or 1B may be administered either—
(a) by means of the audio link or audio visual link, as nearly as practicable in the same way as if the person were to give evidence in the courtroom or other place where the NSW court is sitting, or
(b) at the direction of, or on behalf of, the court at the place where the person is giving the evidence by a person authorised by the court.
(2) A person giving evidence by audio link or audio visual link under Part 1A or 1B from a foreign country is not required to give the evidence on oath or affirmation if—
(a) the law in force in that country—
(i) does not permit the person to give evidence on oath or affirmation for the purposes of the proceeding, or
(ii) would make it inconvenient for the person to give evidence on oath or affirmation for the purposes of the proceeding, and
(b) the NSW court is satisfied that it is appropriate for the evidence to be given otherwise than on oath or affirmation.
(3) If evidence is given otherwise than on oath or affirmation, the NSW court is to give the evidence such weight as it thinks fit in the circumstances.
(4) Subsections (2) and (3) apply despite anything to the contrary in the Evidence Act 1995 or any other law of this State.
s 5D: Ins 2000 No 16, Sch 1 [5]. Am 2001 No 46, Sch 1 [14].
Part 2
Use of interstate audio links or audio visual links with a participating State in proceedings in or before NSW courts
Part 2 Use of interstate audio links or audio visual links with a participating State in proceedings in or before NSW courts
Part 2 Use of interstate audio links or audio visual links with a participating State in proceedings in or before NSW courts
pt 2, hdg: Am 2000 No 16, Sch 1 [6].
6
Application of Part
6 Application of Part
6 Application of Part
This Part applies to any proceeding (including a criminal proceeding) in or before a NSW court.
7
NSW courts may take evidence and submissions from outside State
7 NSW courts may take evidence and submissions from outside State
7 NSW courts may take evidence and submissions from outside State
(1) A NSW court may, on the application of a party to a proceeding before the court, direct that evidence be taken, or submissions made, by audio link or audio visual link, from a participating State.
(2) The court must not make such a direction if—
(a) the necessary facilities are unavailable or cannot reasonably be made available, or
(b) the court is satisfied that evidence or submissions can more conveniently be given or made in this State, or
(c) the court is satisfied by a party opposing the making of the direction that the direction would be unfair to the party.
(3) The court may exercise in the participating State, in connection with taking evidence or receiving submissions by audio link or audio visual link, any of its powers that the court is permitted, under the law of the participating State, to exercise in the participating State.
8
8
8–10
(Renumbered as sections 20A–20C)
s 8: Renumbered as sec 20A, 2000 No 16, Sch 1 [7].
s 9: Renumbered as sec 20B, 2000 No 16, Sch 1 [8].
s 10: Renumbered as sec 20C, 2000 No 16, Sch 1 [9].
11
Counsel entitled to practise
11 Counsel entitled to practise
11 Counsel entitled to practise
(1) A person who is entitled to practise as a legal practitioner in a participating State is entitled to practise as a barrister, solicitor or both—
(a) in relation to the examination in chief, cross-examination or re-examination of a witness in the participating State whose evidence is being given by audio link or audio visual link in a proceeding before a NSW court, and
(b) in relation to the making of submissions by audio link or audio visual link from the participating State in a proceeding before a NSW court.
(2) (Repealed)
s 11: Am 2015 No 7, Sch 2.18.
Part 3
Use of interstate audio links or audio visual links with NSW in proceedings in participating States
Part 3 Use of interstate audio links or audio visual links with NSW in proceedings in participating States
Part 3 Use of interstate audio links or audio visual links with NSW in proceedings in participating States
pt 3, hdg: Am 2000 No 16, Sch 1 [10].
12
Application of Part
12 Application of Part
12 Application of Part
This Part applies to any proceeding (including a criminal proceeding) in or before a recognised court.
13
Recognised courts may take evidence or receive submissions from persons in New South Wales
13 Recognised courts may take evidence or receive submissions from persons in New South Wales
13 Recognised courts may take evidence or receive submissions from persons in New South Wales
A recognised court may, for the purposes of a proceeding before it, take evidence or receive submissions, by audio link or audio visual link, from a person in New South Wales.
14
Powers of recognised courts
14 Powers of recognised courts
14 Powers of recognised courts
(1) The recognised court may, for the purposes of the proceeding, exercise in New South Wales, in connection with taking evidence or receiving submissions by audio link or audio visual link, any of its powers except its powers—
(a) to punish for contempt, and
(b) to enforce or execute its judgments or process.
(2) The laws of the participating State (including rules of court) that apply to the proceeding in that State also apply, by force of this subsection, to the practice and procedure of the recognised court in taking evidence or receiving submissions by audio link or audio visual link from a person in New South Wales.
(3) For the purposes of the recognised court exercising its powers, the place in New South Wales where evidence is given or submissions are made is taken to be part of the court.
15
Orders made by recognised court
15 Orders made by recognised court
15 Orders made by recognised court
Without limiting section 14, the recognised court may, by order—
(a) direct that the proceeding, or a part of the proceeding, be conducted in private, or
(b) require a person to leave a place in New South Wales where the giving of evidence or the making of submissions is taking place or is going to take place, or
(c) prohibit or restrict the publication of evidence given in the proceeding or of the name of a party to, or a witness in, the proceeding.
16
Enforcement of order
16 Enforcement of order
16 Enforcement of order
(1) An order of a recognised court under section 14 or 15 must be complied with.
(2) Subject to any applicable rule of court, the order may be enforced by the Supreme Court as if the order were an order of the Supreme Court.
(3) Without limiting subsection (2), a person who contravenes the order—
(a) is taken to be in contempt of the Supreme Court, and
(b) is punishable accordingly,
unless the person establishes that the contravention should be excused.
17
Privileges, protection and immunity of participants in proceedings in courts of participating States
17 Privileges, protection and immunity of participants in proceedings in courts of participating States
17 Privileges, protection and immunity of participants in proceedings in courts of participating States
(1) A judge or other person presiding at or otherwise taking part in the proceeding of a recognised court has, in connection with evidence being taken or submissions being received by audio link or audio visual link from a person in New South Wales, the same privileges, protection and immunity as a judge of the Supreme Court.
(2) A person appearing as a legal practitioner in the proceeding of a recognised court has, in connection with evidence being taken or submissions being received by audio link or audio visual link from a person in New South Wales, the same protection and immunity as a legal practitioner has in appearing for a party in a proceeding before the Supreme Court.
(3) A person appearing as a witness in a proceeding of a recognised court by audio link or audio visual link from New South Wales has the same protection as a witness in a proceeding in the Supreme Court.
18
Recognised court may administer oath in the State
18 Recognised court may administer oath in the State
18 Recognised court may administer oath in the State
(1) A recognised court may, for the purpose of obtaining in the proceeding, by audio link or audio visual link, the testimony of a person in New South Wales, administer an oath or affirmation in accordance with the practice and procedure of the recognised court.
(2) Evidence given by a person on oath or affirmation so administered is, for the purposes of the law of New South Wales, testimony given on oath in a judicial proceeding.
Note.
Chapter 4 of Part 7 of the Crimes Act 1900 contains offences relating to perjury and giving of false testimony in judicial proceedings.
19
Assistance to recognised court
19 Assistance to recognised court
19 Assistance to recognised court
An officer of a NSW court may, at the request of a recognised court—
(a) attend at the place in the State where evidence is to be or is being taken, or submissions are to be or are being made, in a proceeding of the recognised court, and
(b) take such action as the recognised court directs to facilitate the proceeding, and
(c) assist with the administering by the recognised court of an oath or affirmation.
20
Contempt of recognised courts
20 Contempt of recognised courts
20 Contempt of recognised courts
A person must not, while evidence is being given or a submission is being made in New South Wales, by audio link or audio visual link, in a proceeding in a recognised court—
(a) assault in the State any of the following—
(i) a person appearing in the proceeding as a legal practitioner,
(ii) a witness in the proceeding,
(iii) an officer of a NSW court giving assistance under section 19, or
(b) threaten, intimidate or wilfully insult any of the following—
(i) a judge or other person presiding at or otherwise taking part in the proceeding,
(ii) a Master, Registrar, Deputy Registrar or other officer of that court who is taking part in or assisting in the proceeding,
(iii) a person appearing in the proceeding as a legal practitioner,
(iv) a witness in the proceeding,
(v) a juror in the proceeding, or
(c) wilfully interrupt or obstruct the proceeding, or
(d) wilfully and without lawful excuse disobey an order or direction of the court.
Maximum penalty—Imprisonment for 3 months.
Part 4
Miscellaneous
Part 4 Miscellaneous
Part 4 Miscellaneous
20A
Giving evidence or making submissions by audio visual link
20A Giving evidence or making submissions by audio visual link
20A Giving evidence or making submissions by audio visual link
(1) Evidence must not be given, and a submission must not be made, by audio visual link in proceedings under this Act, including proceedings relating to bail, unless each relevant place for the proceedings is equipped with audio visual link facilities that enable—
(a) persons who are at the courtroom to see and hear—
(i) persons at the place at which the evidence is being given or the submission is made in the proceedings, and
(ii) persons at any place at which the parties to the proceedings are appearing, and
(b) persons who are at the place at which the evidence is given or the submission is made to see and hear—
(i) persons at the courtroom, and
(ii) persons at any place at which parties to the proceedings are appearing, and
(c) persons who are at any place at which parties to the proceedings are appearing to see and hear—
(i) persons at the courtroom, and
(ii) persons at a place at which the evidence is given or the submission is made.
(2) In this section—
courtroom includes another place at which a NSW court is sitting.
relevant place, in relation to proceedings, means the following—
(a) the courtroom in which the NSW court before which the proceedings are being held is sitting,
(b) any place at which parties to the proceedings are appearing,
(c) a place at which evidence would be given or a submission would be made in the proceedings.
s 20A (previously s 8): Renumbered 2000 No 16, Sch 1 [7]. Am 2000 No 16, Sch 1 [11]. Subst 2025 No 34, Sch 1[9].
20B
Giving evidence or making submissions by audio link
20B Giving evidence or making submissions by audio link
20B Giving evidence or making submissions by audio link
(1) Evidence must not be given, and a submission must not be made, by audio link in proceedings under this Act, including proceedings relating to bail, unless each relevant place for the proceedings is equipped with audio link facilities that enable—
(a) persons who are at the courtroom to hear—
(i) persons at the place at which the evidence is being given or the submission is made in the proceedings, and
(ii) persons at any place at which the parties to the proceedings are appearing, and
(b) persons who are at the place at which the evidence is given or the submission is made to hear—
(i) persons at the courtroom, and
(ii) persons at any place at which parties to the proceedings are appearing, and
(c) persons who are at any place at which parties to the proceedings are appearing to hear—
(i) persons at the courtroom, and
(ii) persons at a place at which the evidence is given or the submission is made.
(2) In this section—
courtroom includes another place at which a NSW court is sitting.
relevant place, in relation to proceedings, means the following—
(a) the courtroom in which the NSW court before which the proceedings are being held is sitting,
(b) any place at which parties to the proceedings are appearing,
(c) a place at which evidence would be given or a submission would be made in the proceedings.
s 20B (previously s 9): Renumbered 2000 No 16, Sch 1 [8]. Am 2000 No 16, Sch 1 [12]. Subst 2025 No 34, Sch 1[9].
20C
Expenses
20C Expenses
20C Expenses
If a NSW court directs evidence to be taken, or submissions to be made, by audio link or audio visual link from a person under this Act, the court may make such orders as it considers just for payment of expenses incurred in connection with taking the evidence or making the submissions or providing the audio link or audio visual link.
s 20C (previously s 10): Renumbered 2000 No 16, Sch 1 [9]. Am 2000 No 16, Sch 1 [13].
20D
Failure or other unavailability of audio link or audio visual link
20D Failure or other unavailability of audio link or audio visual link
20D Failure or other unavailability of audio link or audio visual link
(1) This section applies if—
(a) an audio link or audio visual link is being used or is required to be used under this Act for a proceeding before a NSW court, and
(b) the audio link or audio visual link fails or is otherwise unavailable.
(2) If the audio link or audio visual link fails or is otherwise unavailable during the proceeding, the court may do the following as if a person present in the place at which the audio link or audio visual link is located was in the presence of the court—
(a) adjourn the proceeding,
(b) make another order that is appropriate in the circumstances.
s 20D: Ins 2000 No 16, Sch 1 [14]. Subst 2025 No 34, Sch 1[10].
20E
Putting documents to a remote person
20E Putting documents to a remote person
20E Putting documents to a remote person
If in the course of examination of a person by audio link or audio visual link it is necessary to put a document to the person, the NSW court may permit the document to be put to the person—
(a) if the document is at the courtroom or other place where the court is sitting, by transmitting by any means a copy of it to the place where the person is giving evidence or making a submission and the copy so transmitted being then put to the person, or
(b) if the document is at the place where the person is giving evidence or making a submission, by putting it to the person and then transmitting by any means a copy of it to the courtroom or other place.
s 20E: Ins 2000 No 16, Sch 1 [14].
20F
Directions
20F Directions
20F Directions
A NSW court may at any time vary or revoke a direction given by it under this Act in a proceeding, either on its own motion or on application by a party to the proceeding.
s 20F: Ins 2001 No 46, Sch 1 [15].
21
Proceedings for offences
21 Proceedings for offences
21 Proceedings for offences
Proceedings for an offence against this Act or the regulations are to be dealt with summarily before the Local Court.
s 21: Am 2001 No 121, Sch 2.104; 2007 No 94, Sch 2.
22
Regulations and rules of court
22 Regulations and rules of court
22 Regulations and rules of court
(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) A regulation may create an offence punishable by a maximum penalty not exceeding 5 penalty units.
(3) Rules of court may (subject to the regulations) make provision for or with respect to the taking of evidence, or making of submissions, by audio link or audio visual link under this Act.
(4) Without limiting subsections (1) and (3), provision may be made for or with respect to the circumstances in which taking of evidence, or making of submissions, by audio link or audio visual link under this Act may be terminated or interrupted.
(5) Without limiting subsections (1) and (3), provision may be made with respect to factors to be taken into account by a court in determining whether an accused child detainee should appear before the court by audio visual link.
s 22: Am 2003 No 57, Sch 1 [10].
22A
Savings, transitional and other provisions
22A Savings, transitional and other provisions
22A Savings, transitional and other provisions
Schedule 1 has effect.
s 22A: Ins 2001 No 46, Sch 1 [16].
22B
22B
22B, 22C (Repealed)
23
Review of Act
23 Review of Act
23 Review of Act
(1) The Minister is to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives.
(2) The review is to be undertaken as soon as possible after the period of 5 years from the date of assent to this Act.
(3) A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 5 years.
Schedule 1
Savings, transitional and other provisions
Schedule 1 Savings, transitional and other provisions
Schedule 1 Savings, transitional and other provisions
(Section 22A)
sch 1: Ins 2001 No 46, Sch 1 [17]. Am 2007 No 75, Sch 1 [16]; 2009 No 77, Sch 2.10 [2].
Source text: opening excerpt
Sourced from legislation.nsw.gov.au, CC BY 4.0.
Part 1 Preliminary
Part 1 Preliminary
Part 1 Preliminary
1 Name of Act
1 Name of Act
1 Name of Act
This Act is the Evidence (Audio and Audio Visual Links) Act 1998.
2 Commencement
2 Commencement
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Interpretation
3 Interpretation
3 Interpretation
(1) In this Act—
accused detainee means a person who is being held in custody in a correctional centre, detention centre, police station or other place of detention and includes, in relation to a proceeding for a summary offence, a defendant who is so being held.
audio link means facilities (including telephone) that enable audio communication between persons at different places.
audio visual link means facilities (including closed-circuit television) that enable audio and visual communication between persons at different places.
designated government agency means the following—
(a) the Department of Corrective Services,
(b) the Department of Juvenile Justice,
(c) any other government agency prescribed by the regulations.
detention centre has the same meaning it has in the Children (Detention Centres) Act 1987.
government agency means any person, department or body exercising executive or administrative functions on behalf of the Government.
NSW court means—
(a) a NSW court within the meaning of the Evidence Act 1995, or
(b) a coroner, or
(c) a tribunal prescribed by the regulations as a NSW court for the purposes of this Act, or
(d) a Children’s Registrar exercising any function of the Children’s Court conferred or imposed on the Registrar by or under the Children’s Court Act 1987.
Note.
In the Evidence Act 1995NSW court means—
Part 1C supplies machinery provisions. Any place from which a link is used is deemed part of the NSW court for purposes of evidence, procedure, contempt and perjury (s 5C). Oaths and affirmations may be administered via the link or by an authorised person at the remote location; evidence from foreign countries need not be on oath if local law makes it inconvenient and the court considers it appropriate, in which case the court gives the evidence such weight as it thinks fit (s 5D). Technical standards in ss 20A and 20B require that every relevant place (courtroom, parties’ locations, evidence-giving location) be equipped so that all participants can see and hear one another as appropriate for audiovisual or audio-only links.
Parts 2 and 3 create a reciprocal scheme with “participating States” (those with substantially corresponding legislation). NSW courts may direct evidence or submissions from a participating State if facilities exist and the direction is not inconvenient or unfair (s 7). Conversely, recognised courts of participating States may take evidence from NSW, exercise most of their powers (except contempt and enforcement), and their orders are enforceable by the Supreme Court as if they were its own (ss 13–16). Legal practitioners entitled to practise in a participating State may do so in the linked proceedings (s 11). Privileges, immunities and contempt protections are extended to participants (ss 17, 20).
Miscellaneous provisions allow courts to order payment of expenses (s 20C), deal with link failure by adjourning or making other orders as if the remote participant were present (s 20D), regulate the tendering of documents to remote participants (s 20E), permit variation or revocation of directions (s 20F), and provide for summary prosecution of offences (s 21). Regulations and rules of court may supplement the Act, including by prescribing additional factors for child detainees (s 22).
The Act expressly does not exclude other laws permitting remote evidence (s 5) and preserves the inherent discretion of courts as to the conduct of proceedings (s 5(2)). Its application is extended to pending proceedings at various amendment dates (s 5(3)–(5C)), ensuring continuity.
Who it affects
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).
Key duties and rights
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)).
Penalties and enforcement
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.
How it interacts with other laws
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)).
Recent changes and why
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.
Court challenges and controversies
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.
Gotchas
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.
How to comply
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.
(including such a court exercising federal jurisdiction) and includes any person or body (other than a court) that, in exercising a function under the law of the State, is required to apply the laws of evidence.
participating State means another State in which provisions of a law in terms substantially corresponding to Parts 2 and 3 are in force.
physical appearance proceeding means the following—
(a) a trial, including an arraignment on the day appointed for the trial,
(b) a hearing of charges,
(c) an inquiry into a person’s fitness to be tried for an offence.
recognised court means a court or tribunal of a participating State that is authorised by the provisions of a law of that State in terms substantially corresponding to Parts 2 and 3 to direct that evidence be taken or submissions made by audio link or audio visual link from New South Wales.
State includes Territory.
tribunal of a State means a person or body authorised by or under a law of the State to take evidence on oath or affirmation.
Note.
The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.
(2) A reference in this Act (other than Part 1B) to making a submission to a court includes a reference to making an appearance before the court.
(3) (Repealed)
s 3: Am 2000 No 16, Sch 1 [1]; 2001 No 46, Sch 1 [1]–[3]; 2003 No 57, Sch 1 [1]–[3]; 2007 No 75, Sch 1 [1]–[4]; 2025 No 34, Sch 1[1].
3A Appearances and entitlements to be present before courts
3A Appearances and entitlements to be present before courts
3A Appearances and entitlements to be present before courts
(1) A requirement by or under any other Act that a person appear (or be brought or be present) before a court is taken to be satisfied if the person appears before the court by way of an audio link or audio visual link under this Act.
Note.
Part 1B of this Act contains provisions with respect to the appearance by audio visual link of accused detainees who are in custody in criminal proceedings.
(2) An entitlement of a person under another Act or law for a person to be present in proceedings before a court relating to bail is taken to be satisfied if either of the following are used in relation to the person under this Act—
(a) audio links,
(b) audio visual links.
Note—
See section 5BB(2A), which provides for the criteria that must be satisfied before a person may be present by audio link in proceedings before a court relating to bail.
(3) Any entitlement of a person under section 14 of the Criminal Appeal Act 1912 to be present in proceedings on the hearing of an appeal is taken to be satisfied if audio visual links are used in relation to the person under this Act.
s 3A: Ins 2001 No 46, Sch 1 [4]. Am 2003 No 76, Sch 1 [1]; 2007 No 75, Sch 1 [5]; 2025 No 34, Sch 1[2].
4 Notes
4 Notes
4 Notes
Notes included in this Act do not form part of this Act.
5 Application of Act
5 Application of Act
5 Application of Act
(1) This Act is not intended to exclude or limit the operation of any other law of the State or a participating State that makes provision for the taking of evidence or making of submissions—
(a) outside the State or participating State for the purposes of a proceeding in that State, or
(b) in the State or participating State for the purposes of a proceeding outside that State.
(1A) This Act is not intended to exclude or limit the operation of any other law of the State or another place that makes provision for the taking of evidence or making of submissions in the State for the purposes of a proceeding in the State.
(2) Unless a contrary intention is shown, nothing in this Act limits or otherwise affects any discretion that a NSW court or a recognised court has with respect to the conduct of a proceeding.
(3) This Act (other than Part 1A or 1B) extends to any proceeding pending in a NSW court or a recognised court on the commencement of this section.
(4) Part 1A extends to any proceeding pending in a NSW court or court of a place outside New South Wales on the commencement of this subsection.
(4A) Part 1A (as amended by the Evidence (Audio and Audio Visual Links) Amendment Act 2007) extends to any proceedings pending in a NSW court after the commencement of subsection (4) and on the commencement of this subsection.
(5) Part 1B (as originally enacted) extends to any preliminary criminal proceeding or relevant criminal proceeding pending in a NSW court on the commencement of this subsection.
(5A) Part 1B (as amended by the Evidence Legislation Amendment (Accused Child Detainees) Act 2003) extends to any preliminary criminal proceeding or relevant criminal proceeding pending in a NSW court after the commencement of subsection (5) and at the commencement of this subsection.
(5B) Part 1B (as amended by the Evidence (Audio and Audio Visual Links) Amendment Act 2003) extends to any preliminary criminal proceeding or relevant criminal proceeding pending in a NSW court after the commencement of subsection (5) and at the commencement of this subsection.
(5C) Part 1B (as amended by the Evidence (Audio and Audio Visual Links) Amendment Act 2007) extends to any criminal proceedings pending in a NSW court after the commencement of subsection (5) and at the commencement of this subsection.
(6) (Repealed)
s 5: Am 2000 No 16, Sch 1 [2]–[4]; 2001 No 46, Sch 1 [5]–[7]; 2003 No 57, Sch 1 [5] (am 2003 No 76, Sch 2 [2]) [6]; 2003 No 76, Sch 1 [2] [3]; 2007 No 6, Sch 2.3; 2007 No 75, Sch 1 [6]–[8]; 2007 No 94, Sch 1.41; 2012 No 42, Sch 1.7.
Part 1A Use of audio links or audio visual links with places in NSW, non-participating States and foreign countries in proceedings in NSW courts
Part 1A Use of audio links or audio visual links with places in NSW, non-participating States and foreign countries in proceedings in NSW courts
Part 1A Use of audio links or audio visual links with places in NSW, non-participating States and foreign countries in proceedings in NSW courts
pt 1A: Ins 2000 No 16, Sch 1 [5].
5A Application of this Part
5A Application of this Part
5A Application of this Part
(1) This Part applies to any proceeding (including a criminal proceeding) in or before a NSW court.
(2) An application cannot be made, and the court may not give a direction, under this Part for the giving of evidence or making of a submission to the court by audio link or audio visual link from any place outside New South Wales that is a participating State.
(3) An application cannot be made, and the court may not give a direction, under this Part for the giving of evidence or making of a submission to the court by audio link or audio visual link from any place in New Zealand.
Note.
Part 6 of the Trans-Tasman Proceedings Act 2010 of the Commonwealth makes provision for audio links and audio visual links with New Zealand.
s 5A: Ins 2000 No 16, Sch 1 [5].
5B Taking evidence and submissions from outside courtroom or place where court is sitting—proceedings generally
5B Taking evidence and submissions from outside courtroom or place where court is sitting—proceedings generally
5B Taking evidence and submissions from outside courtroom or place where court is sitting—proceedings generally
(1) Subject to any applicable rules of court, subsection (2A) and section 5BAA, a NSW court may, either on its own motion in, or on the application of a party to, a proceeding before the court, direct that a person (whether or not a party to the proceeding) give evidence or make a submission to the court by audio link or audio visual link from any place within or outside New South Wales, including a place outside Australia, other than the courtroom or other place at which the court is sitting.
(2) The court must not make such a direction if—
(a) the necessary facilities are unavailable or cannot reasonably be made available, or
(b) the court is satisfied that the evidence or submission can more conveniently be given or made in the courtroom or other place at which the court is sitting, or
(c) the court is satisfied that the direction would be unfair to any party to the proceeding, or
(d) the court is satisfied that the person in respect of whom the direction is sought will not give evidence or make the submission.
(2A) A court must not make a direction under this Part in relation to the giving of evidence or making of a submission by audio visual link by any accused detainee in any criminal proceeding in relation to the detainee concerning an offence alleged to have been committed by the detainee. However, this subsection does not prevent the making of such a direction in relation to an accused detainee in any other proceeding to which this Part applies.
Note.
Part 1B of this Act contains provisions with respect to the appearance of accused detainees who are in custody in criminal proceedings.
(3) In a proceeding in which a party opposes the making of a direction for the giving of evidence or making of a submission to the court by audio link or audio visual link from any place within New South Wales other than the courtroom or other place where the court is sitting, the court must not make the direction unless the party making the application satisfies the court that it is in the interests of the administration of justice for the court to do so.
s 5B: Ins 2000 No 16, Sch 1 [5]. Am 2001 No 46, Sch 1 [8]–[10]; 2003 No 76, Sch 1 [4]; 2004 No 55, Sch 2.12; 2007 No 75, Sch 1 [9]–[11]; 2015 No 67, Sch 1.9.
5BAA Taking evidence of government agency witnesses from outside courtroom or place where court is sitting—proceedings generally
5BAA Taking evidence of government agency witnesses from outside courtroom or place where court is sitting—proceedings generally
5BAA Taking evidence of government agency witnesses from outside courtroom or place where court is sitting—proceedings generally
(1) Subject to any applicable rules of court, a government agency witness must, unless the court otherwise directs, give evidence to the court by audio link or audio visual link from any place within New South Wales.
(2) Subsection (1) does not apply unless the necessary audio links or audio visual links are available or can reasonably be made available.
(3) The court may make a direction under subsection (1) on its own motion or on the application of a party to the proceedings.
(4) The court may make such a direction only if it is satisfied—
(a) that the evidence to be given is likely to be contentious, and
(b) that it is in the interests of the administration of justice for the government agency witness to give evidence by appearing physically before the court.
(5) In this section—
expert, in relation to any issue, means a person who has such knowledge or experience of, or in connection with, that issue, or issues of the character of that issue, that his or her opinion on that issue would be admissible in evidence.
expert’s report means a written statement by an expert (whether or not an expert witness in the proceedings concerned) that sets out the expert’s opinion and the facts, and assumptions of fact, on which the opinion is based and includes a hospital report.
government agency witness means the following—
(a) a member of staff of the Government Service or the NSW Health Service, or a person employed in or engaged by any government agency, who has provided an expert’s report for use in evidence in proceedings or proposed proceedings or who is called as an expert to give opinion evidence in proceedings,
(b) a member of the NSW Police Force called to give evidence in proceedings to corroborate evidence in chief given by another member of the NSW Police Force for the prosecution,
(c) any other witness of a class prescribed by the regulations.
hospital report means a written statement concerning a patient, made by or on behalf of a hospital, that the party serving the statement intends to adduce in evidence in chief at the trial.
s 5BAA: Ins 2007 No 75, Sch 1 [12]. Am 2009 No 77, Sch 2.10 [1].
Part 1B Use of audio visual links within places in NSW for appearances of accused detainees in proceedings in NSW courts
Part 1B Use of audio visual links within places in NSW for appearances of accused detainees in proceedings in NSW courts
Part 1B Use of audio visual links within places in NSW for appearances of accused detainees in proceedings in NSW courts
pt 1B: Ins 2001 No 46, Sch 1 [11].
5BAAB Definition
5BAAB Definition
5BAAB Definition
In this part—
appear, before a NSW court, includes—
(a) be brought before a NSW court, and
(b) be present before a NSW court.
s 5BAAB: Ins 2025 No 34, Sch 1[3].
5BA Accused detainee to appear physically in physical appearance proceedings
5BA Accused detainee to appear physically in physical appearance proceedi
This is an opening excerpt, not the complete document.