Evidence Bill 2025
Special arrangements for taking evidence Part 6
Assistance to other Australian courts and foreign courts Division 3
s. 222
page 177
(3) A reference in this Division to a request issued by or on behalf1
of a court or tribunal includes a reference to any commission,2
order or other process issued by or on behalf of a court or3
tribunal.4
Compare:5
Evidence Act 1906 s. 1156
222. Application to Supreme Court for assistance7
(1) This Division applies if an application (an assistance8
application) is made to the Supreme Court for assistance in9
obtaining evidence in the State for the purposes of a proceeding10
before a court or tribunal exercising jurisdiction in a place11
outside the State.12
(2) This Division applies only if the proceeding to which the13
assistance application relates is —14
(a) a criminal proceeding before a court exercising15
jurisdiction in a place outside the State that is in16
Australia or New Zealand; or17
(b) a civil proceeding.18
Compare:19
Evidence Act 1906 s. 11620
223. Supreme Court may make order to assist in obtaining21
evidence22
(1) The Supreme Court may, on an assistance application, make an23
order (an assistance order) for obtaining evidence in the State if24
satisfied that —25
(a) the assistance application is made for the purposes of a26
request issued by or on behalf of a court or tribunal27
exercising jurisdiction in a place outside the State; and28
(b) the evidence to which the assistance application relates29
is to be obtained for the purposes of a proceeding before30
the requesting court.31
Evidence Bill 2025
Part 6 Special arrangements for taking evidence
Division 3 Assistance to other Australian courts and foreign courts
s. 223
page 178
(2) An assistance order may include any provisions the Supreme1
Court considers appropriate for the purpose of giving effect to2
the request to which the assistance application relates.3
(3) An assistance order may require a specified person to take any4
steps the Supreme Court considers appropriate for the purpose5
of giving effect to the request to which the assistance6
application relates.7
(4) Without limiting subsection (2) or (3), an assistance order may8
make provision for the following —9
(a) the examination of witnesses, either orally or in writing;10
(b) the production of documents;11
(c) the inspection, photographing, preservation, custody or12
detention of any property;13
(d) the taking of samples of any property and the carrying14
out of any experiments on or with any property;15
(e) the medical examination of any person;16
(f) without limiting paragraph (e), the taking and testing of17
samples of blood from any person.18
(5) An assistance order must not include a requirement unless that19
requirement could be made to obtain evidence for the purposes20
of a proceeding in the Supreme Court (whether or not a21
proceeding of the same description as the proceeding to which22
the assistance application relates).23
(6) Subsection (5) does not prevent the making of an order24
requiring a person to give testimony (either orally or in writing)25
otherwise than on oath or affirmation if that is requested by the26
requesting court.27
(7) An assistance order must not require a person —28
(a) to state what documents relevant to the proceeding to29
which the assistance application relates are or have been30
in the person’s possession, custody or power; or31
Evidence Bill 2025
Special arrangements for taking evidence Part 6
Assistance to other Australian courts and foreign courts Division 3
s. 224
page 179
(b) to produce any documents other than particular1
documents specified in the order and appearing to the2
Supreme Court to be, or to be likely to be, in the3
person’s possession, custody or power.4
(8) A person who is required to attend any place under an assistance5
order is entitled to any allowances and expenses that the person6
would be entitled to on attendance as a witness in a proceeding7
before the Supreme Court.8
Compare:9
Evidence Act 1906 s. 116 and 11710
224. Privilege of witnesses11
(1) A person must not be compelled by an assistance order to give12
any evidence for the purpose of a proceeding before a13
requesting court if the person could not be compelled to give the14
evidence —15
(a) in a similar proceeding in the State; or16
(b) in a similar proceeding in the place in which the17
requesting court exercises jurisdiction.18
(2) Subsection (1)(b) does not apply unless the claim of the person19
to be exempt from giving evidence is either —20
(a) supported by a statement contained in the request of the21
requesting court (whether unconditionally or subject to22
conditions); or23
(b) conceded by the applicant for the assistance order.24
(3) If a claim by a person to be exempt from giving evidence is not25
supported or conceded as referred to in subsection (2), the26
person may (subject to subsection (1)(a)) be required to give the27
evidence to which the claim relates but that evidence must not28
be transmitted to the requesting court unless —29
(a) the claim is referred to the requesting court; and30
(b) the requesting court dismisses the claim.31
Evidence Bill 2025
Part 6 Special arrangements for taking evidence
Division 3 Assistance to other Australian courts and foreign courts
s. 225
page 180
(4) In this section —1
(a) a reference to giving evidence includes a reference to2
producing any document or thing; and3
(b) a reference to transmitting evidence given includes a4
reference to transmitting any document or thing that is5
produced.6
Compare:7
Evidence Act 1906 s. 1188
225. Rules of court9
(1) The Supreme Court may make rules of court under the Supreme10
Court Act 1935 for or with respect to the following —11
(a) the manner in which an assistance application must be12
made;13
(b) the circumstances in which an assistance order may be14
made;15
(c) the manner in which a claim of a person to be exempt16
from giving evidence under an assistance order must be17
made;18
(d) any other matters that are necessary or convenient for19
carrying out or giving effect to this Division.20
(2) Subsection (1) does not limit the rule-making powers conferred21
by the Supreme Court Act 1935.22
Compare:23
Evidence Act 1906 s. 118A24
226. Offence of giving false testimony25
A person who, in giving any testimony (either orally or in26
writing) otherwise than on oath or affirmation when required to27
do so by an assistance order, makes a statement that the person28
knows is false or that the person does not believe is true29
commits a crime.30
Penalty: imprisonment for 7 years.31
Evidence Bill 2025
Special arrangements for taking evidence Part 6
Assistance to other Australian courts and foreign courts Division 3
s. 227
page 181
Compare:1
Evidence Act 1906 s. 118B2
227. Operation of other laws3
This Division does not affect the operation of any other law of4
the State that makes provision for the taking of evidence in the5
State for the purpose of a proceeding outside the State.6
Compare:7
Evidence Act 1906 s. 118C8
Evidence Bill 2025
Part 7 Witness assistance measures
Division 1 Preliminary
s. 228
page 182
Part 7 — Witness assistance measures1
Division 1 — Preliminary2
228. Terms used3
(1) In this Part —4
affected child, in relation to a child protection proceeding,5
means the child in respect of whom an application under the6
Children and Community Services Act 2004 Part 4 is made;7
alter —8
(a) a recording, includes edit the recording; and9
(b) a transcript of a recording, includes edit the transcript;10
child protection proceeding —11
(a) means protection proceedings as defined in the Children12
and Community Services Act 2004 section 3; and13
(b) includes any related proceedings and any protection14
proceedings dealt with under Part 5 of that Act;15
destroy, a recording, includes —16
(a) erase, delete or obliterate all or any part of the recording;17
and18
(b) render any images or sounds recorded in the recording19
irrecoverable;20
out-of-court representation has the meaning given in21
section 235;22
pre-recording procedure means a procedure by which a23
witness’s evidence in a proceeding is given at a special hearing24
(as defined in section 261) and recorded on a visual recording25
that is later presented to the court;26
recorded interview has the meaning given in section 251;27
recorded statement has the meaning given in section 239;28
Evidence Bill 2025
Witness assistance measures Part 7
Preliminary Division 1
s. 228
page 183
special procedure for giving evidence means any of the1
following procedures for giving evidence —2
(a) a pre-recording procedure;3
(b) a video link separation procedure;4
(c) a screening procedure;5
special witness means a witness in a proceeding —6
(a) who must be treated as a special witness under7
section 229; or8
(b) who the court declares to be a special witness under9
section 230;10
visual recording —11
(a) means any recording on any medium from which a12
moving image may be produced by any means; and13
(b) includes the accompanying soundtrack;14
witness assessment has the meaning given in section 289(1);15
witness intermediary means a person appointed as a witness16
intermediary for a witness in a proceeding under section 291(1).17
(2) A provision of this Part that applies to a child protection18
proceeding applies as if —19
(a) a reference to an accused were a reference to any party20
to the proceeding, other than the affected child or an21
applicant under the Children and Community Services22
Act 2004 Part 4 or 5 who is an officer as defined in23
section 3 of that Act; and24
(b) a reference to a complainant were a reference to the25
affected child.26
Compare:27
Evidence Act 1906 s. 106A28
Evidence Bill 2025
Part 7 Witness assistance measures
Division 1 Preliminary
s. 229
page 184
229. Witnesses who must be treated as special witness1
(1) In a criminal proceeding, a witness must be treated as a special2
witness —3
(a) if the proceeding is a proceeding in a superior court for a4
sexual offence and the witness is the complainant; or5
(b) if the proceeding is for a criminal or identified6
organisation offence and the witness is —7
(i) the complainant; or8
(ii) any witness for the prosecution;9
or10
(c) if the proceeding is a proceeding in a superior court for a11
family violence offence and the witness is the12
complainant; or13
(d) if the witness has a mental impairment that affects the14
witness’s ability to give evidence; or15
(e) in any other circumstances specified in the regulations16
for the purposes of this paragraph.17
(2) A power to specify circumstances conferred by18
subsection (1)(e) includes a power to specify circumstances by19
reference to any of the following —20
(a) the type of offence to which the proceeding relates;21
(b) the characteristics of the witness;22
(c) the court in which the proceedings are heard.23
(3) In deciding whether a witness must be treated as a special24
witness under subsection (1)(d) or (e), a court may inform itself25
as it thinks fit.26
Evidence Bill 2025
Witness assistance measures Part 7
Preliminary Division 1
s. 230
page 185
230. Witnesses who may be declared to be special witness1
(1) A court may, by order, declare a witness to be a special witness2
in a proceeding if the court is of the opinion that, unless the3
witness is treated as a special witness, the witness —4
(a) is unlikely to be able to give evidence, or to give5
evidence satisfactorily, because of a disability; or6
(b) is likely to be intimidated or distressed, because of age,7
cultural background, relationship to any party in the8
proceeding, the nature of the subject matter of the9
evidence or any other factor that the court considers10
relevant.11
(2) An order under this section may be made —12
(a) on application by a party to the proceeding, on notice to13
the other parties; or14
(b) on the court’s own initiative.15
(3) The court must be satisfied that it is in the interests of justice to16
make the order.17
(4) The court may at any time vary or revoke an order under this18
section.19
(5) If the proceeding in which a person is declared to be a special20
witness is a proceeding before a jury, the court must instruct the21
jury that —22
(a) the making of the declaration is a routine practice of the23
court; and24
(b) the jury should not draw any inference as to the guilt of25
an accused or the culpability of a party from the making26
of the declaration on the court’s own initiative.27
(6) In deciding whether to make, vary or revoke an order declaring28
a witness to be a special witness, the court may inform itself as29
it thinks fit.30
Evidence Bill 2025
Part 7 Witness assistance measures
Division 2 Support and communication assistance for children and
special witnesses
s. 231
page 186
(7) This section does not apply in respect of a witness if the witness1
must be treated as a special witness under section 229.2
Compare:3
Evidence Act 1906 s. 106R4
Division 2 — Support and communication assistance for5
children and special witnesses6
231. Use of support person7
(1) The following witnesses are entitled, while giving evidence in a8
proceeding, to have a person nearby to provide the witness with9
support —10
(a) a witness who is a child when the proceeding11
commences;12
(b) a special witness.13
(2) The person who provides support must be a person approved by14
the court and must not be a person who is a witness in, or a15
party to, the proceeding.16
Compare:17
Evidence Act 1906 s. 106E and 106R(4)(a)18
232. Use of support animal19
(1) The following witnesses may, with the approval of the court,20
have an animal (a support animal) nearby to provide the21
witness with support while the witness is giving evidence —22
(a) a witness who is a child when the proceeding23
commences;24
(b) a special witness.25
(2) The use of the support animal must comply with any26
requirements imposed by the court or prescribed by the27
regulations for the purposes of this subsection.28
Evidence Bill 2025
Witness assistance measures Part 7
Support and communication assistance for children and
special witnesses
Division 2
s. 233
page 187
(3) This section does not affect any entitlement that a person with a1
disability has to be accompanied by an assistance animal as2
defined in the Disability Discrimination Act 19923
(Commonwealth) section 9(2).4
233. Use of communicator5
(1) A court may, on its own initiative or on the application of a6
party, appoint a person to act as a communicator for a witness7
while the witness is giving evidence if —8
(a) the witness is a child when the proceeding commences9
or a special witness; and10
(b) the court considers it in the interests of justice to do so.11
(2) The functions of the person acting as a communicator are, if12
requested by the judge, to communicate and explain —13
(a) to the witness, questions put to the witness; and14
(b) to the court, evidence given by the witness.15
(3) The use of a communicator must comply with any requirements16
imposed by the court or prescribed by the regulations for the17
purposes of this subsection.18
(4) The court may appoint any person it considers suitable and19
competent to act as a communicator for a witness under this20
section, including a family member or carer.21
(5) It is not necessary for the person appointed as a communicator22
to have any particular training, study or experience.23
(6) A person appointed to act as a communicator must either take24
an oath or make an affirmation, in a form directed by the court,25
that the person will exercise the person’s functions as a26
communicator to the best of the person’s ability.27
(7) A person who, while performing or purporting to perform a28
function as a communicator under this section, makes any29
statement the person knows to be false or misleading to a30
witness or the court commits a crime.31
Evidence Bill 2025
Part 7 Witness assistance measures
Division 3 Admission of out-of-court representations
s. 234
page 188
Penalty for this subsection: imprisonment for 5 years.1
Summary conviction penalty for this subsection: imprisonment2
for 2 years or a fine of $24 000.3
Compare:4
Evidence Act 1906 s. 106F and 106R(4)(b)5
Division 3 — Admission of out-of-court representations6
234. Application of Division7
This Division applies to the following proceedings —8
(a) a criminal proceeding for a sexual offence if the9
complainant is a child when the proceeding commences;10
(b) a criminal proceeding for a family violence offence if11
the complainant is a child when the proceeding12
commences;13
(c) a child protection proceeding.14
Compare:15
Evidence Act 1906 s. 106H and Schedule 716
235. Term used: out-of-court representation17
In this Division —18
out-of-court representation —19
(a) means a representation that relates to a fact in issue in a20
proceeding to which this Division applies and that was21
made by a person to another person before the22
proceeding commenced, whether or not it is recorded;23
but24
(b) does not include —25
(i) a recorded statement that is admissible under26
Division 4; or27