Evidence Bill 2025
Admissibility of evidence Part 3
Hearsay Division 2
s. 78
page 65
cross-examination of a person might have been conducted,1
but —2
(a) could reasonably have been present at that time; and3
(b) if present, could have cross-examined the person.4
(6) Evidence of the making of a representation to which5
subsection (3) applies may be adduced by producing a6
transcript, or a recording, of the representation that is7
authenticated by —8
(a) the person to whom, or the court or other body to which,9
the representation was made; or10
(b) if applicable, the registrar or other proper officer of the11
court or other body to which the representation was12
made; or13
(c) the person or body responsible for producing the14
transcript or recording.15
(7) Without limiting subsection (2)(d), a representation is taken for16
the purposes of that paragraph to be against the interests of the17
person who made it if it tends —18
(a) to damage the person’s reputation; or19
(b) to show that the person has committed an offence for20
which the person has not been convicted; or21
(c) to show that the person is liable in an action for22
damages.23
(8) The hearsay rule does not apply to —24
(a) evidence of a previous representation adduced by an25
accused if the evidence is given by a person who saw,26
heard or otherwise perceived the representation being27
made; or28
(b) a document tendered as evidence by an accused so far as29
it contains a previous representation, or another30
representation to which it is reasonably necessary to31
refer in order to understand the representation.32
Evidence Bill 2025
Part 3 Admissibility of evidence
Division 2 Hearsay
s. 79
page 66
(9) If evidence of a previous representation about a matter has been1
adduced by an accused and has been admitted, the hearsay rule2
does not apply to evidence of another representation about the3
matter that —4
(a) is adduced by another party; and5
(b) is given by a person who saw, heard or otherwise6
perceived the other representation being made.7
Compare:8
Evidence Act 1995 (Commonwealth) s. 659
79. Exception: criminal proceeding if maker available10
(1) This section applies to a criminal proceeding if a person who11
made a previous representation is available to give evidence12
about an asserted fact.13
(2) The hearsay rule does not apply to evidence of the14
representation that is given by the person who made the15
representation, or by a person who saw, heard or otherwise16
perceived the representation being made, if —17
(a) the person who made the representation has been or is to18
be called to give evidence; and19
(b) when the representation was made, the occurrence of the20
asserted fact was fresh in the memory of the person who21
made the representation.22
(3) In determining whether the occurrence of the asserted fact was23
fresh in the memory of a person, the court may take into account24
all matters that it considers are relevant to the question,25
including —26
(a) the nature of the event concerned; and27
(b) the age and health of the person; and28
Evidence Bill 2025
Admissibility of evidence Part 3
Hearsay Division 2
s. 80
page 67
(c) the period of time between the occurrence of the1
asserted fact and the making of the representation.2
Note for this subsection:3
This subsection relates to the decision of the High Court of Australia in4
Graham v The Queen (1998) 195 CLR 606.5
(4) If a representation was made for the purpose of indicating the6
evidence that the person who made it would be able to give in7
an Australian or overseas proceeding, subsection (2) does not8
apply to evidence adduced by the prosecutor of the9
representation unless the representation concerns the identity of10
a person, place or thing.11
(5) A document containing a representation to which subsection (2)12
applies must not be tendered before the conclusion of the13
examination in chief of the person who made the representation14
unless the court gives leave.15
Compare:16
Evidence Act 1995 (Commonwealth) s. 6617
80. Exception: particular contemporaneous statements about18
person19
The hearsay rule does not apply to evidence of a previous20
representation made by a person if the representation was a21
contemporaneous representation about the person’s health,22
feelings, sensations, intention, knowledge or state of mind.23
Compare:24
Evidence Act 1995 (Commonwealth) s. 66A25
81. Notice to be given26
(1) An exception to the hearsay rule that is specified in27
section 76(2), 77(2) or 78(2), (3) or (8) does not apply to28
evidence adduced by a party unless that party has given29
reasonable notice in writing to each other party of the party’s30
intention to adduce the evidence.31
Evidence Bill 2025
Part 3 Admissibility of evidence
Division 2 Hearsay
s. 82
page 68
(2) A notice given under subsection (1) must be given in1
accordance with any regulations or rules of court made for the2
purposes of this section.3
(3) The notice must state —4
(a) the particular provisions of this Subdivision on which5
the party intends to rely in arguing that the hearsay rule6
does not apply to the evidence; and7
(b) if section 77(2) is a provision on which the party intends8
to rely — the grounds, specified in that provision, on9
which the party intends to rely.10
(4) Despite subsection (1), if notice has not been given, the court11
may, on the application of a party, direct that 1 or more of the12
exceptions to the hearsay rule referred to in subsection (1)13
applies despite the party’s failure to give notice.14
(5) The direction may provide that, in relation to specified15
evidence, the exception or exceptions concerned apply with the16
modifications the court specifies.17
(6) Subsection (5) does not limit the court’s power to impose18
conditions on the direction.19
Compare:20
Evidence Act 1995 (Commonwealth) s. 6721
82. Objections to tender of hearsay evidence in civil proceeding22
if maker available23
(1) In a civil proceeding, a party may, not later than 21 days after24
notice under section 81(1) has been given, object to the tender25
of the evidence, or of a specified part of the evidence, if the26
notice discloses that it is not intended to call the person who27
made the previous representation concerned because —28
(a) it would cause undue expense or undue delay; or29
(b) it would not be reasonably practicable.30
Evidence Bill 2025
Admissibility of evidence Part 3
Hearsay Division 2
s. 83
page 69
(2) The objection must be made by giving to each other party a1
written notice setting out the grounds on which the objection is2
made.3
(3) The court may, on the application of a party, determine the4
objection at or before the hearing.5
(4) If the objection is unreasonable, the court may order that, in any6
event, the party objecting must bear the costs (ascertained on a7
solicitor and client basis) incurred by another party —8
(a) in relation to the objection; and9
(b) in calling the person who made the representation to10
give evidence.11
Compare:12
Evidence Act 1995 (Commonwealth) s. 6813
Subdivision 3 — Other exceptions to hearsay rule14
83. Exception: business records15
(1) This section applies to a document that contains a previous16
representation made or recorded in the document in the course17
of, or for the purposes of, a business and that either —18
(a) is or forms part of the records belonging to or kept by a19
person, body or organisation in the course of, or for the20
purposes of, the business; or21
(b) at any time was or formed part of a record referred to in22
paragraph (a).23
(2) The hearsay rule does not apply to the document (so far as it24
contains the representation) if the representation was made —25
(a) by a person who had or might reasonably be supposed to26
have had personal knowledge of the asserted fact; or27
(b) on the basis of information directly or indirectly28
supplied by a person who had or might reasonably be29
supposed to have had personal knowledge of the30
asserted fact.31
Evidence Bill 2025
Part 3 Admissibility of evidence
Division 2 Hearsay
s. 84
page 70
(3) Subsection (2) does not apply if the representation —1
(a) was prepared or obtained for the purpose of conducting,2
or for or in contemplation of or in connection with, an3
Australian or overseas proceeding; or4
(b) was made in connection with an investigation relating or5
leading to a criminal proceeding.6
(4) If the occurrence of an event of a particular kind is in question7
and, in the course of a business, a system has been followed of8
making and keeping a record of the occurrence of all events of9
that kind, the hearsay rule does not apply to evidence that tends10
to prove that there is no record kept, in accordance with that11
system, of the occurrence of the event.12
(5) For the purposes of this section, a person is taken to have had13
personal knowledge of a fact if the person’s knowledge of the14
fact was, or might reasonably be supposed to have been, based15
on what the person saw, heard or otherwise perceived (other16
than a previous representation made by a person about the fact).17
Compare:18
Evidence Act 1995 (Commonwealth) s. 6919
84. Exception: content of tags, labels and writing20
The hearsay rule does not apply to a tag or label attached to, or21
writing placed on, an object (including a document) if the tag or22
label or writing may reasonably be supposed to have been23
attached or placed —24
(a) in the course of a business; or25
(b) for the purpose of describing or stating the identity,26
nature, ownership, destination, origin or weight of the27
object, or of the contents (if any) of the object.28
Compare:29
Evidence Act 1995 (Commonwealth) s. 7030
Evidence Bill 2025
Admissibility of evidence Part 3
Hearsay Division 2
s. 85
page 71
85. Exception: electronic communication1
The hearsay rule does not apply to a representation contained in2
a document recording an electronic communication so far as the3
representation is a representation as to —4
(a) the identity of the person from whom or on whose5
behalf the communication was sent; or6
(b) the date on which or the time at which the7
communication was sent; or8
(c) the destination of the communication or the identity of9
the person to whom the communication was addressed.10
Compare:11
Evidence Act 1995 (Commonwealth) s. 7112
86. Exception: Aboriginal and Torres Strait Islander traditional13
laws and customs14
The hearsay rule does not apply to evidence of a representation15
about the existence or non-existence, or the content, of the16
traditional laws and customs of an Aboriginal or Torres Strait17
Islander group.18
Compare:19
Evidence Act 1995 (Commonwealth) s. 7220
87. Exception: reputation as to relationships and age21
(1) The hearsay rule does not apply to evidence of reputation22
concerning —23
(a) whether a person was, at a particular time or at any time,24
a married person; or25
(b) whether 2 people cohabiting at a particular time were26
married to each other at that time; or27
(c) a person’s age; or28
(d) family history or a family relationship.29
Evidence Bill 2025
Part 3 Admissibility of evidence
Division 2 Hearsay
s. 88
page 72
(2) In a criminal proceeding, subsection (1) does not apply to1
evidence adduced by an accused unless —2
(a) it tends to contradict evidence of a kind referred to in3
subsection (1) that has been admitted; or4
(b) the accused has given reasonable notice in writing to5
each other party of the accused’s intention to adduce the6
evidence.7
(3) In a criminal proceeding, subsection (1) does not apply to8
evidence adduced by the prosecutor unless it tends to contradict9
evidence of a kind referred to in subsection (1) that has been10
admitted.11
Compare:12
Evidence Act 1995 (Commonwealth) s. 7313
88. Exception: reputation of public or general rights14
(1) The hearsay rule does not apply to evidence of reputation15
concerning the existence, nature or extent of a public or general16
right.17
(2) In a criminal proceeding, subsection (1) does not apply to18
evidence adduced by the prosecutor unless it tends to contradict19
evidence of a kind referred to in subsection (1) that has been20
admitted.21
Compare:22
Evidence Act 1995 (Commonwealth) s. 7423
89. Exception: interlocutory proceedings24
In an interlocutory proceeding, the hearsay rule does not apply25
to evidence if the party who adduces it also adduces evidence of26
its source.27
Compare:28
Evidence Act 1995 (Commonwealth) s. 7529
Evidence Bill 2025
Admissibility of evidence Part 3
Opinion Division 3
s. 90
page 73
Division 3 — Opinion1
90. Opinion rule2
(1) Evidence of an opinion is not admissible to prove the existence3
of a fact about the existence of which the opinion was4
expressed.5
(2) Subsection (1) does not apply to evidence of an opinion6
contained in a certificate or other document given or made7
under regulations made under an Act (other than this Act) to the8
extent to which the regulations provide that the certificate or9
other document has evidentiary effect.10
Examples for this section:11
P sues D, P’s doctor, for the negligent performance of a surgical12
operation. Unless an exception to the opinion rule applies, P’s13
neighbour, W, who had the same operation, cannot give evidence of14
W’s opinion that D had not performed the operation as well as W’s15
operation.16
P thinks electrical work that D, an electrician, has done for P is17
unsatisfactory. Unless an exception to the opinion rule applies, P18
cannot give evidence of P’s opinion that D does not have the19
necessary skills to do electrical work.20
Compare:21
Evidence Act 1995 (Commonwealth) s. 7622
Exception: evidence relevant otherwise than as opinion23
evidence24
The opinion rule does not apply to evidence of an opinion that is25
admitted because it is relevant for a purpose other than proof of26
the existence of a fact about the existence of which the opinion27
was expressed.28
Compare:29
Evidence Act 1995 (Commonwealth) s. 7730
Evidence Bill 2025
Part 3 Admissibility of evidence
Division 3 Opinion
s. 92
page 74
92. Exception: lay opinions1
The opinion rule does not apply to evidence of an opinion2
expressed by a person if —3
(a) the opinion is based on what the person saw, heard or4
otherwise perceived about a matter or event; and5
(b) evidence of the opinion is necessary to obtain an6
adequate account or understanding of the person’s7
perception of the matter or event.8
Compare:9
Evidence Act 1995 (Commonwealth) s. 7810
93. Exception: Aboriginal and Torres Strait Islander traditional11
laws and customs12
The opinion rule does not apply to evidence of an opinion13
expressed by a member of an Aboriginal or Torres Strait14
Islander group about the existence or non-existence, or the15
content, of the traditional laws and customs of the group.16
Compare:17
Evidence Act 1995 (Commonwealth) s. 78A18
94. Exception: opinions based on specialised knowledge19
(1) If a person has specialised knowledge based on the person’s20
training, study or experience, the opinion rule does not apply to21
evidence of an opinion of that person that is wholly or22
substantially based on that knowledge.23
(2) Without limiting subsection (1) —24
(a) a reference in that subsection to specialised knowledge25
includes a reference to specialised knowledge of child26
development and child behaviour (including specialised27
knowledge of the impact of sexual abuse on children28
and their development and behaviour during and29
following the abuse); and30
Evidence Bill 2025
Admissibility of evidence Part 3
Admissions Division 4
s. 95
page 75
(b) a reference in that subsection to an opinion of a person1
includes, if the person has specialised knowledge of the2
kind referred to in paragraph (a), a reference to an3
opinion relating to either or both of the following —4
(i) the development and behaviour of children5
generally;6
(ii) the development and behaviour of children who7
have been victims of sexual abuse.8
Compare:9
Evidence Act 1995 (Commonwealth) s. 7910
95. Ultimate issue and common knowledge rules abolished11
Evidence of an opinion is not inadmissible only because it is12
about —13
(a) a fact in issue or an ultimate issue; or14
(b) a matter of common knowledge.15
Compare:16
Evidence Act 1995 (Commonwealth) s. 8017
Division 4 — Admissions18
96. Hearsay and opinion rules: exception for admissions and19
related representations20
(1) The hearsay rule and the opinion rule do not apply to evidence21
of an admission.22
(2) The hearsay rule and the opinion rule do not apply to evidence23
of a previous representation —24
(a) that was made in relation to an admission at the time the25
admission was made, or shortly before or after that time;26
and27