Evidence Bill 2025
Repeal, savings and transitional provisions Part 11
Repeals Division 1
s. 386
page 301
Part 11 — Repeal, savings and transitional provisions1
Division 1 — Repeals2
386. Evidence Act 1906 repealed3
The Evidence Act 1906 is repealed.4
387. Regulations under Evidence Act 1906 repealed5
The following regulations are repealed —6
(a) the Evidence (Admissible Reproductions)7
Regulations 2003;8
(b) the Evidence (Examination of witnesses outside the9
State) Regulations 1991;10
(c) the Evidence (Fees, Allowances and Expenses)11
Regulations 2008;12
(d) the Evidence (Prescribed Persons) Regulations 2005;13
(e) the Evidence (Video and Audio Links Fees and14
Expenses) Regulations 1999;15
(f) the Evidence (Visual Recording of Interviews with16
Children and Persons with Mental Impairment)17
Regulations 2004.18
Division 2 — Savings and transitional provisions19
388. Terms used20
In this Division —21
former Act means the Evidence Act 1906;22
former Act recording means —23
(a) a visual recording (as defined in section 228(1)) or an24
audio recording made by a police officer of this State25
before the repeal day of a relevant statement (as defined26
in section 106H(3) of the former Act), being a relevant27
statement that was admitted or could have been admitted28
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into evidence in a proceeding under section 106H of the1
former Act (whether or not it has been admitted into2
evidence under that section); or3
(b) a visual recording (as defined in section 228(1)) of an4
interview conducted before the repeal day, being a5
recording that was admitted or could have been admitted6
as evidence in a proceeding under section 106HB of the7
former Act (whether or not it has been admitted as8
evidence under that section); or9
(c) a visual recording of evidence (as defined in10
section 106A of the former Act) made before the repeal11
day;12
repeal day means the day on which section 386 comes into13
operation.14
389. Application of Act to proceedings15
(1) A provision of this Act applies to a proceeding commenced on16
or after the day on which the provision comes into operation.17
(2) If a proceeding commenced before the day on which a provision18
of this Act comes into operation, the provision applies to that19
part of the proceeding that takes place on or after the day on20
which the provision comes into operation, other than a hearing21
in the proceeding that commenced before the day on which the22
provision comes into operation.23
(3) The former Act continues to apply to a hearing in a proceeding24
if the hearing commenced before the repeal day and —25
(a) continued on or after the repeal day; or26
(b) was adjourned until the repeal day or a day after the27
repeal day.28
(4) This section is subject to the other provisions of this Division.29
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Savings and transitional provisions Division 2
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390. Documents served or given1
(1) A reference in a provision of this Act to a document served or2
given to a person includes a reference to a document served or3
given before the day on which the provision comes into4
operation.5
(2) A document served or given before the day on which a6
provision of this Act comes into operation is taken to have been7
served or given in accordance with the requirements (if any) of8
that provision if it was served or given in accordance with the9
requirements (if any) —10
(a) that applied under the former Act to the service or11
giving of the document in the circumstances provided12
for by the provision of this Act; or13
(b) that would have applied if the provision of this Act had14
already come into operation.15
(3) If a provision of this Act specifies a time limit for doing a thing16
that starts when a document is served or given, and the17
document was served or given before the day on which the18
provision comes into operation, the time limit is taken to end on19
the later of the following days —20
(a) the day that is 21 days after the day on which the21
provision comes into operation;22
(b) the day on which the time limit would have ended, but23
for this section.24
391. Documents and other things examined, copied or viewed25
If a provision of this Act requires a party to have been given a26
reasonable opportunity to examine, copy or view any document27
or other thing, that requirement is taken to have been complied28
with if that reasonable opportunity was given before the day on29
which the provision comes into operation in accordance with30
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any requirements of a written law that were applicable at the1
time that it was given.2
392. Things done between parties3
(1) A reference in section 113 or 115 to a notice is taken to include4
a reference to a notice of the kind referred to in that section that5
was given before the day on which the section comes into6
operation.7
(2) A reference in section 324 or 355(2) to a request is taken to8
include a reference to a request of the kind referred to in that9
section that was made before the day on which the section10
comes into operation.11
(3) A reference in section 372(3) to an agreement is taken to12
include a reference to an agreement of the kind referred to in13
that section that was made before the day on which the section14
comes into operation.15
393. Identification evidence16
(1) Section 134 does not apply to identification evidence that is an17
assertion or a report of an assertion that was made before the18
day on which the section comes into operation.19
(2) This section does not affect the application of Part 5 to20
identification evidence.21
394. Privileges22
(1) Part 4 Division 1 applies to —23
(a) a confidential communication made before, on or after24
the day on which that Division comes into operation;25
and26
(b) a confidential document prepared before, on or after the27
day on which that Division comes into operation.28
(2) Part 4 Division 2 applies to a protected confidence made before,29
on or after the day on which that Division comes into operation.30
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(3) Part 4 Division 3 applies to a protected communication made1
before, on or after the day on which that Division comes into2
operation.3
(4) Part 4 Division 4 applies to information given to a journalist4
before, on or after the day on which that Division comes into5
operation.6
395. Cautioning of persons7
(1) Section 205 does not apply to evidence of a statement made or8
an act done by a person before the day on which that section9
comes into operation.10
(2) This section does not prevent a court from deciding that11
evidence referred to in subsection (1) was obtained improperly12
for the purposes of section 204.13
396. Out-of-court representations14
In Part 7, a reference to an out-of-court representation is taken15
to include a reference to an out-of-court representation made16
before the day on which section 235 comes into operation.17
397. Recorded interviews18
(1) In Part 7, a reference to a recorded interview is taken to include19
a reference to a recorded interview made before the day on20
which section 251 comes into operation.21
(2) For the purposes of Part 7 Division 5, if a recorded interview22
was made before the repeal day —23
(a) the interview in the recorded interview is taken to have24
been conducted by a person authorised to conduct25
recorded interviews under the interview admissibility26
regulations if it was conducted by a person of a27
prescribed class under section 106HA(1)(a) or (1a)(a) of28
the former Act; and29
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(b) the recorded interview is taken to meet any other1
requirements of the interview admissibility regulations2
to the extent required by those regulations if, at the time3
of recording, the manner in which the interview was4
conducted and recorded met the prescribed requirements5
to the prescribed extent under section 106HA(1)(b)6
or (1a)(b) of the former Act.7
(3) For the purposes of section 260, a reference to recorded8
interviews that are admissible under Part 7 Division 5 or made9
for use as evidence under that Division includes a reference to10
recorded interviews made before the repeal day that were11
admissible under section 106HB of the former Act or made for12
use as evidence under that section.13
(4) Accordingly, the power to make regulations for the purposes of14
section 260 extends to recorded interviews referred to in15
subsection (3).16
398. Visual recordings of evidence17
(1) A reference in section 268(1) or 269(1) to a recording of18
evidence given by a witness at a special hearing is taken to19
include a reference to a visual recording of evidence made in a20
special hearing held pursuant to an order under section 106K or21
106RA of the former Act.22
(2) A reference in section 268(2) to a pre-recording order made on23
the ground that the witness is likely to be out of the State at the24
time of the proceeding is taken to include a reference to an order25
made under section 106RA(1) of the former Act on the ground26
in section 106RA(4)(b) of the former Act.27
(3) A reference in section 280(2) to a recording of evidence given28
by a witness using a video link separation procedure is taken to29
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include a reference to a visual recording of evidence made1
under section 106N(3a) of the former Act.2
(4) A reference in section 281(3) to a recording of evidence given3
by a witness while using a screening procedure is taken to4
include a reference to a visual recording of evidence made5
under section 106N(5) of the former Act.6
399. Restrictions on use of audio evidence under former Act7
(1) A person must not make a copy of, or otherwise reproduce, any8
audio of a proceeding, or any part of a proceeding, heard by9
means of an audio link under section 106K(3)(a)(ii) of the10
former Act.11
Penalty for this subsection: imprisonment for 2 years or a fine of12
$24 000.13
(2) A person must not play, supply or offer to supply any copy of,14
or reproduction of, any audio of a proceeding, or any part of a15
proceeding, heard by means of an audio link under16
section 106K(3)(a)(ii) of the former Act.17
Penalty for this subsection: imprisonment for 2 years or a fine of18
$24 000.19
(3) A person must not publish any audio of a proceeding, or any20
part of a proceeding, heard by means of an audio link under21
section 106K(3)(a)(ii) of the former Act.22
Penalty for this subsection: imprisonment for 2 years or a fine of23
$100 000.24
400. Restrictions on use of former Act recordings25
(1) In this section —26
alter, a recording, has a meaning affected by section 228(1);27
destroy, a recording, has a meaning affected by section 228(1).28
(2) A person must not, without authority —29
(a) be in possession of a former Act recording; or30
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(b) supply or offer to supply a former Act recording to any1
person.2
Penalty for this subsection: imprisonment for 2 years or a fine of3
$24 000.4
(3) A person who is in possession of a former Act recording does5
not commit an offence against subsection (2) by virtue of being6
in possession of the recording if —7
(a) the person acquired that possession before this section8
comes into operation; and9
(b) the possession was lawful at the time the person10
acquired it.11
(4) A person must not, without authority, alter or destroy or permit12
another person to alter or destroy a former Act recording that is13
an original recording.14
Penalty for this subsection: imprisonment for 2 years or a fine of15
$24 000.16
(5) A person must not alter a copy of a former Act recording unless17
the person has authority to be in possession of the recording.18
Penalty for this subsection: imprisonment for 2 years or a fine of19
$24 000.20
(6) A person must not, without authority, copy or permit another21
person to copy a former Act recording.22
Penalty for this subsection: imprisonment for 2 years or a fine of23
$24 000.24
(7) A person must not, without authority, play a former Act25
recording.26
Penalty for this subsection: imprisonment for 2 years or a fine of27
$24 000.28
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(8) A person has authority to do a thing for the purposes of this1
section only if the person —2
(a) would have authority to do the thing concerned under3
Part 7 Division 10 if the former Act recording were a4
protected recording (as defined in section 299); or5
(b) is acting as authorised by regulations made for the6
purposes of this paragraph.7
(9) This section applies even if a proceeding in connection with8
which the former Act recording was made or in which the9
former Act recording was admitted as evidence, or a hearing of10
the proceeding, commenced, concluded or was terminated11
before the repeal day.12
401. Publication of former Act recordings prohibited13
(1) A person must not publish a former Act recording except in14
accordance with the approval of the Supreme Court.15
Penalty for this subsection: imprisonment for 2 years or a fine of16
$100 000.17
(2) The Supreme Court may approve the publication of a former18
Act recording only if satisfied that exceptional circumstances19
justify approval being given.20
(3) This section applies even if a proceeding in connection with21
which the former Act recording was made or in which the22
former Act recording was admitted as evidence, or a hearing of23
the proceeding, commenced, concluded or was terminated24
before the repeal day.25
402. Playing or tendering altered recording in proceeding26
In section 307, a reference to a protected recording is taken to27
include a reference to a former Act recording.28
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403. Power to give directions about former Act recordings1
In section 308, a reference to a protected recording is taken to2
include a reference to a former Act recording.3
404. Use of Justice documents4
Section 310 extends to a Justice document prepared before the5
day on which the section comes into operation.6
405. Facilitation of proof of documents7
Part 9 Divisions 3 and 4 extend to a document produced,8
attested, verified, signed, executed, acknowledged, printed,9
published, sealed or certified before the day or days on which10
those Divisions come into operation.11
406. Admission of police affidavits12
(1) An affidavit made before the day on which section 358 comes13
into operation that was substantially in the form of the Sixth14
Schedule to the former Act is taken to have been made in the15
form prescribed by the regulations for the purposes of16
section 358.17
(2) Accordingly, section 358 applies to the use of the affidavit in a18
proceeding to which this Act applies.19
407. DNA certificates given before commencement20
Sections 360 and 361 apply to a certificate given by a forensic21
scientist under section 50B of the former Act before the day on22
which section 360 comes into operation in the same way as they23
apply to a forensic biology certificate referred to in section 360.24
408. Restrictions on publishing names of complainants25
(1) Section 381(3) applies to the publication of information in26
relation to a criminal proceeding on or after the day on which27
that section comes into operation, including if a person is28
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charged with a sexual offence before the day on which that1
section comes into operation.2
(2) Section 381(3) does not apply to the publication of information3
in relation to a civil proceeding that commenced before the day4
on which that section comes into operation.5
409. Continuation of orders, directions, leave and other things6
done under former Act7
(1) Any order given, direction made, leave granted or other thing8
done under the former Act by a court, judge or person acting9
judicially (as that term is defined in section 3 of the former Act)10
that had effect immediately before the repeal day continues to11
have effect despite the repeal of the former Act.12
(2) The former Act continues to apply in respect of the order,13
direction, leave or other thing as if it were still in force.14
(3) In particular —15
(a) section 11A(2) and (3) of the former Act continue to16
apply to any order made under section 11A(1) of the17
former Act; and18
(b) section 27(2) of the former Act continues to apply to any19
question or inquiry that is the subject of an order under20
section 27(1)(a) or (b) of the former Act.21
410. Saving of self-incrimination certificates given under former22
Act23
A certificate given under section 11 or 12 of the former Act24
continues to have the same effect as it would have if the former25
Act had not been repealed.26
411. Construction of references27
(1) A reference in any other written law or in any instrument to the28
former Act is to be read, from the repeal day, as a reference to29
this Act.30