Evidence (Examination of Witnesses Outside the State) Regulations 2021

The Regulations revolve around a single statutory concept: the "judicial authority" as used in section 9G of the Evidence (Miscellaneous Provisions) Act 1958. The instrument does not define s 9G; rather it prescribes which courts or judicial officers are to be taken as the "judicial authority" for the purposes of that section. The logic is straightforward: when a Victorian proceeding requires examination of witnesses located outside Victoria under the framework established by the Evidence (Miscellaneous Provisions) Act 1958, a designated external court or judge is the recognised counterpart for the reciprocal or cross-jurisdictional process.

Key textual elements and their immediate consequences:

• Regulation 1 sets the objective: the Regulations "prescribe courts and persons in other States and Territories as appropriate judicial authorities for the purposes of section 9G" of the parent Act. That anchors the instrument’s scope to the parent Act and confines its purpose to prescription rather than procedural prescription.
• Regulation 2 identifies the power under which the Regulations are made: s 152 of the Evidence (Miscellaneous Provisions) Act 1958. The Regulations therefore operate as subordinate legislation to that Act and only to the extent that s 152 permits.
• Regulation 5 is the operative list. For each State or Territory it either prescribes the Supreme Court as the appropriate judicial authority or, in the case of the Northern Territory, prescribes "a judge of the Supreme Court of the Northern Territory."

The endnotes introduce interpretative mechanisms that will affect how one reads the Regulations:

• The Interpretation of Legislation Act 1984 (ILA) provisions summarised in the endnotes indicate that headings, examples, punctuation and provision numbers form part of the Statutory Rule insofar as the ILA provides. That means the formal structure of the Regulations (including headings and numbered regs) is part of the legal instrument for interpretative purposes, as stated in the endnotes.
• An administrative lifecycle rule is applied: the Regulations will "sunset" ten years after making (27 April 2031), pursuant to the Subordinate Legislation Act 1994 (Endnote 1). This imposes an expiry date unless action is taken under the Subordinate Legislation Act to extend, replace or remake the instrument.

Conceptually the instrument does three things: it identifies the legal hook (s 9G) it serves; it sets out which out-of-state courts are accepted as the appropriate counterpart; and it cleans up previous subordinate legislation by revoking the 2011 Regulations. The Regulations do not purport to describe the mechanics of examinations, nor do they create new procedural steps, fees, or sanctions. Their formal effect is definitional and administrative.

The Regulations directly affect a narrow set of actors by changing how a particular legal definition operates in cross-jurisdictional evidentiary matters. Those actors are:

• Courts and judicial officers named in regulation 5. The instrument expressly prescribes the Supreme Court of the Australian Capital Territory, the Supreme Courts of New South Wales, Queensland, South Australia, Tasmania and Western Australia, and "a judge of the Supreme Court of the Northern Territory" as the appropriate judicial authorities for the purposes of s 9G. Each named institution or officer is the entity designated by the Regulations as the counterpart for Victorian matters under that section.

• Parties and practitioners in Victorian proceedings that invoke s 9G of the Evidence (Miscellaneous Provisions) Act 1958. The objective (reg 1) demonstrates the Regulations are intended for use where evidence must be obtained from witnesses outside Victoria. Those parties must deal with the prescribed authorities identified in reg 5 when the definition in s 9G is engaged.

• Legal representatives who prepare or lodge applications under the Evidence (Miscellaneous Provisions) Act 1958. Because the Regulations specify which external institutions count as "judicial authority", practitioners who seek orders, letters or assistance under s 9G will be required to engage the prescribed courts or judge in the listed jurisdiction.

• Administrators and court registries in the prescribed courts. They will receive and process applications or requests that flow from s 9G being engaged, and the instrument’s prescription may influence registry practices and administrative arrangements for dealing with out-of-state requests.

• Government lawyers and agencies who require formal testimony or examinations of witnesses outside the state. The Regulations identify the authorities to which requests should be directed under s 9G.

Who is not affected (by the text of the Regulations): the instrument does not prescribe federal courts, magistrates’ courts, tribunals, or other judicial officers; it does not purport to alter the jurisdiction of the Supreme Courts named; and it does not set out procedures, costs, or fees. The absence of non-supreme courts from the list means those institutions are not listed as "appropriate judicial authorities" under this instrument. That absence will matter to parties who might otherwise attempt to engage lower courts or federal courts under the s 9G formulation , the Regulations themselves do not list them.

The Regulations also affect transitional administration only to the extent that the 2011 Regulations are revoked (reg 4). The text does not set out transitional arrangements or savings; therefore practitioners should not assume any transitional provisions beyond the plain revocation, and should check whether other statutory instruments or the parent Act provide transition rules.

Finally, the endnote that the instrument will sunset on 27 April 2031 bears on planning for courts, practitioners and agencies: administrators and practitioners should expect that, unless remade or extended, this statutory prescription will expire on that date.

The Regulations do not create new duties or rights in the typical statutory sense. Instead they allocate the identity of the "judicial authority" for the purposes of s 9G of the Evidence (Miscellaneous Provisions) Act 1958. That allocation carries specific practical implications for duties and rights under the parent Act by reference.

What the Regulations require (directly):

• Regulation 5 prescribes specific courts or judicial officers as the "appropriate judicial authority" for each non-Victorian State and Territory. The immediate duty imposed is on users of the s 9G mechanism to treat those specified entities as the judicial counterparts. The Regulations do not impose positive conduct obligations on private parties; rather they set the institutional destination (which court or judge) for requests that depend on the definition in s 9G.

What the Regulations confer (by prescriptive identification):

• Each prescribed court or judge is, by the instrument, the recognised authority for reciprocal or cross-jurisdictional processes that are triggered by reference to the definition in s 9G. That recognition is not itself a grant of power; it is a statement that under the Evidence (Miscellaneous Provisions) Act 1958 the named institution or officer is the appropriate entity to be treated as the "judicial authority."

What the Regulations do not do (and practitioners must note):

• They do not specify procedural duties, timeframes, forms, or fees for making or responding to requests under s 9G. Any procedural obligations must therefore be located in the Evidence (Miscellaneous Provisions) Act 1958 or other applicable rules, not in these Regulations.
• They do not impose sanctions or penalties for non-compliance with the prescription. The presence or absence of enforcement mechanisms lies outside the text of these Regulations.
• They do not confer rights on non-prescribed courts, nor do they create entitlements for private parties beyond using the s 9G mechanism with the named authorities.

Practical effects on rights and duties arising from the parent Act (as implied by the prescription):

• A party wishing to act under s 9G will have the duty to apply to, or treat as the counterpart, the prescribed authority in the relevant jurisdiction (reg 5). That in practice means filings, communications and formal requests under s 9G should be addressed to the institution or officer named.
• The prescribed authorities gain, in practice, the right to be the point of contact and the locus of any orders, directions or assistance that flow from use of s 9G. This is a practical allocation of institutional responsibility that may affect workloads and registry procedures in the listed courts.

The Regulations therefore function as a definitional switch: they alter who in other jurisdictions is to be recognised as the appropriate judicial authority for the purposes of the named section of the Evidence (Miscellaneous Provisions) Act 1958. The detailed duties, rights and remedies that arise when a party or court uses that mechanism remain matters for the parent Act and other procedural rules, not for these Regulations themselves.

The Regulations contain no penalties, enforcement mechanisms, or compliance fines in their own text. They are a prescriptive list; their content is definitional rather than penal. The instrument does not create any offence, nor does it set out enforcement powers, administrative sanctions, or monetary penalties.

Consequently:

• There is no enforcement machinery embedded in the Regulations themselves. The only enforceable rules relevant to cross-jurisdictional examinations will be those contained in the Evidence (Miscellaneous Provisions) Act 1958 or other procedural rules, not these Regulations.
• The Regulations cannot, on their face, be enforced by imposing penalties for failing to comply with them. Their effect is to direct which external courts or judges are to be treated as the "judicial authority" in the parent Act; any consequences for non-compliance with procedural obligations must therefore be traced to the parent Act or other legislation that grants sanctions.

Administrative effect and indirect enforcement:

• By prescribing named courts and judges, the Regulations channel the procedural pathway for s 9G requests. This channeling creates an administrative reality: parties and practitioners must pursue the prescribed authorities for matters under s 9G. While the Regulations do not directly sanction failure to use the prescribed authorities, a party that approaches a non-prescribed authority may find their application treated as improper or premature by the relevant registry or by Victorian courts applying s 9G in light of the prescription. Any curial consequences would derive from how the parent Act and courts treat a failure to use prescribed institutions, not from a penalty in the Regulations.

Revocation and lifecycle:

• Regulation 4 revokes the 2011 Regulations. The revocation is an enforceable legislative act: from the commencement date (reg 3, 16 May 2021) the 2011 Regulations cease to be in force. Any reliance on the old regulations after that date would not be supported by the instrument, and operational administrators must therefore ensure they apply the 2021 instrument. The text does not elaborate transitional enforcement, so any enforcement questions about actions taken under the 2011 Regulations will need to be resolved by reference to the parent Act or other transitional law.

Sunset:

• The endnotes state the instrument will sunset on 27 April 2031 under the Subordinate Legislation Act 1994. The sunset is an administrative expiry built into subordinate legislation; the endnote references s 5 of the Subordinate Legislation Act 1994. The sunset will terminate the Regulations on that date unless steps are taken under the Subordinate Legislation Act to extend or replace them. That expiry is not a penalty but it affects long-term enforceability: after sunsetting, the prescriptive list would no longer operate unless remade or extended.

In short, these Regulations do not embed enforcement measures or penalties themselves. Any enforcement implications are indirect and must be located in the Evidence (Miscellaneous Provisions) Act 1958 or in how courts exercise their powers and manage procedure in reliance on the prescription.

The Regulations are explicitly framed as subordinate to and operating for the purposes of the Evidence (Miscellaneous Provisions) Act 1958. Several interactions with other legislative instruments and interpretative statutes are recorded in the text and endnotes:

Primary parent Act interaction

• Regulation 1 explicitly links the Regulations to section 9G of the Evidence (Miscellaneous Provisions) Act 1958: the Regulations "prescribe courts and persons in other States and Territories as appropriate judicial authorities for the purposes of section 9G." Regulation 2 states that the Regulations are made under section 152 of the same Act. Therefore the Regulations must be read and applied as an instrument that operationalises a definitional element of that Act. Any substantive powers, procedures or sanctions relevant to cross-jurisdictional examinations will derive from the parent Act; the Regulations only determine which external institutions are to be treated as the "judicial authority."

Revocation of earlier subordinate legislation

• Regulation 4 revokes the Evidence (Examination of Witnesses Outside the State) Regulations 2011. That revocation means that the 2011 Regulations no longer form part of the subordinate legislative framework. Any procedural or interpretative provisions that previously sat in the 2011 instrument are not resurrected by the 2021 Regulations; users must rely on the 2021 Regulations together with the parent Act and any other applicable laws.

Interaction with the Subordinate Legislation Act 1994

• The endnotes disclose that the instrument will sunset on 27 April 2031 pursuant to s 5 of the Subordinate Legislation Act 1994. That places the Regulations within the lifecycle governance rules applicable to subordinate legislation, meaning the Regulations are subject to automatic expiry unless the remaking/extension processes under that Act are engaged.

Interpretation of Legislation Act 1984 (ILA) effects

• The endnotes summarise relevant ILA provisions. These include that headings, examples, punctuation and provision numbers introduced in or after 1 January 2001 form part of a Statutory Rule (ILA s 36 and related sections as summarised in the endnotes). The Regulations therefore interact with the ILA for interpretative purposes: how one reads headings, notes and punctuation is governed by the ILA rules referenced in the endnotes. The endnotes also reference s 54A of the ILA (style changes) and s 39B (treatment of undivided regulations amended by insertion), which are interpretative devices that can change how the Regulations are read in context.

Limits of cross-jurisdictional interaction

• The Regulations prescribe particular State and Territory Supreme Courts (and a NT judge) as the "judicial authorities." The instrument does not mention federal courts, magistrates' courts, tribunals, or other judicial officers. That silence is consequential: for the interplay between Victorian law (through the Evidence (Miscellaneous Provisions) Act 1958) and external jurisdictions, the list in reg 5 will be the operative recognition of the counterpart institutions. Any assumption that other courts or tribunals are appropriate judicial authorities under s 9G must be tested against the parent Act and these Regulations; the Regulations themselves do not list those institutions.

Practical governance interaction

• Because the Regulations are subordinate legislation made under s 152 of the parent Act, any dispute about their validity or operation would engage standard constitutional and statutory review pathways applicable to subordinate legislation, though the instrument itself does not map out those pathways. The instrument’s revocation of the 2011 Regulations and its eventual sunset mean that the cross-jurisdictional recognition regime is governed by a subordinate instrument whose content may change or expire, so practitioners must watch for updates or replacement instruments.

In sum, the Regulations function as a definitional companion instrument to the Evidence (Miscellaneous Provisions) Act 1958, rely on the Subordinate Legislation Act 1994 for lifecycle rules, and are read in light of interpretative provisions in the Interpretation of Legislation Act 1984 as summarised in the endnotes. The Regulations do not, on their own, alter procedural or enforcement law beyond the identity of the prescribed judicial authorities.

The Regulations under consideration are the Evidence (Examination of Witnesses Outside the State) Regulations 2021, Version No. 001, S.R. No. 39/2021, and the instrument contains explicit statements about its amendment status. The operative facts in the instrument are:

• Version and date: The instrument is Version No. 001, with the version as at 16 May 2021. Regulation 3 records that the Regulations "come into operation on 16 May 2021." Endnote 1 states the Regulations were made on 27 April 2021 and came into operation on 16 May 2021.

• Revocation of prior instrument: Regulation 4 revokes the Evidence (Examination of Witnesses Outside the State) Regulations 2011. The explanatory detail cross-references S.R. No. 28/2011 (Explanatory details, item 1).

• Table of Amendments: The instrument explicitly records in Section 2 "Table of Amendments" that "There are no amendments made to the Evidence (Examination of Witnesses Outside the State) Regulations 2021 by statutory rules, subordinate instruments and Acts." This indicates that, as at the version date, no amending instruments have altered the 2021 Regulations.

• Amendments Not in Operation: Section 3 of the endnotes says "This version does not contain amendments that are not yet in operation." That shows there are no known pending amendments to be brought into operation at a later date in the present version.

• Lifecycle: The endnotes include a note that the 2021 Regulations "will sunset 10 years after the day of making on 27 April 2031 (see section 5 of the Subordinate Legislation Act 1994)." This is a planned expiry rather than an amendment; however, it is relevant to legislative planning because the instrument will automatically lapse unless action is taken under the Subordinate Legislation Act to avoid sunsetting.

What is absent in the Amendment history:

• There are no recorded amendments to the 2021 Regulations themselves up to the version date. The instrument contains no schedules of changes, no amending provisions, and no transitional provisions modifying the effect of revocation of the 2011 Regulations.

Practical consequences of the amendment history:

• Because the 2011 Regulations are revoked and the 2021 Regulations contain the current prescription, practitioners must rely on the 2021 instrument and accompanying parent Act for the operative rule about which out-of-state judicial authorities apply under s 9G.
• The lack of subsequent amendments simplifies interpretation in the near term, but the sunset provision requires users to monitor whether the instrument is remade or extended before 27 April 2031 to ensure continuity.

In short, the amendment history is sparse: the 2011 Regulations were revoked, the 2021 Regulations were made and commenced, and there have been no amendments to the 2021 instrument recorded in the version provided.

The Regulations themselves do not record any litigation history. The statutory instrument includes no references to judicial decisions, challenges, or interpretative litigation arising from this instrument. The endnotes and table of provisions likewise contain no mention of cases or litigation.

What the instrument does provide that is relevant to litigation considerations:

• The Regulations are made under s 152 of the Evidence (Miscellaneous Provisions) Act 1958 and operate by prescribing particular external courts and a judicial officer as the "judicial authority" for the purposes of s 9G. Any litigation about the operation or validity of that prescription would therefore be focused on issues of subordinate legislation, statutory power under s 152, and the correct interpretation of s 9G in reliance on the prescription. The Regulations themselves contain no litigation history.

• The endnotes signal interpretative rules drawn from the Interpretation of Legislation Act 1984. Disputes about how to read the Regulations (for example whether headings, notes or punctuation should be given particular interpretative weight) would be resolved with reference to the ILA provisions summarised in the endnotes, but the instrument does not report existing litigation applying those interpretative devices.

Practical position for litigators and researchers:

• The absence of litigation history in the instrument indicates that, as of the version date, the Regulations have not been the subject of reported challenges recorded in the instrument. It does not preclude litigation arising later or litigation being reported elsewhere; it only means the instrument’s own documentation contains no litigation references.
• If an argument arises about whether a particular external court not listed in reg 5 should be treated as a "judicial authority" under s 9G, that dispute would involve interpreting the parent Act, the scope of the subordinate instruments power under s 152, and possibly principles governing the validity or operation of subordinate instruments. The Regulations do not contain transitional or saving clauses; litigators should review the parent Act and general administrative law principles in the event of any challenge, noting the Regulations’ revocation of the 2011 instrument.

In sum, there is no litigation history recorded within this statutory instrument. Any litigation that may engage the Regulations will need to be located in external case law and filings, not in the instrument itself.

The Regulations are short, but several precise textual features and documentary endnotes create practical pitfalls for practitioners who rely on them. The following "gotchas" are drawn directly from the Regulations and their endnotes:

1. Prescriptive list is narrow and specific

• The Regulations prescribe only the Supreme Courts of the listed States and the Australian Capital Territory, and "a judge of the Supreme Court of the Northern Territory" (reg 5(a)-(g)). The instrument does not include federal courts, magistrates' courts, tribunals, registrars, or other judicial officers. Practitioners should not assume that other courts or officers qualify as "judicial authority" for the purposes of s 9G unless another instrument or the parent Act so provides. The absence is consequential: if a user attempts to rely on a non-prescribed court, the request may be treated as misdirected.

2. Asymmetry in wording for the Northern Territory

• For the Northern Territory the instrument prescribes "a judge of the Supreme Court of the Northern Territory" rather than the Supreme Court as an institution. That textual asymmetry could have practical consequences for concepts such as whether court registries or masters are appropriate recipients, and for who may sign or make determinations in the NT context. The instrument does not explain why the Northern Territory is treated differently; parties should take the phrasing at face value and ensure applications are framed to a judge of the Supreme Court in that jurisdiction.

3. No procedural rules, no forms, no fees in the instrument

• The Regulations do not set out any procedure for making applications under s 9G, nor do they specify any forms, cost orders or fees. Users must therefore consult the parent Act and relevant court practice directions to determine mechanics. Assuming that the Regulations supply procedural detail is a common pitfall.

4. Revocation without transitional provision

• Regulation 4 revokes the 2011 Regulations but contains no transitional or savings clauses. The instrument does not state how matters commenced under the 2011 Regulations are to be treated after revocation. Practitioners should not assume transitional continuance; they should check the parent Act and court practice to determine how existing processes are to be finalised.

5. Endnotes and explanatory material are not necessarily part of the Statutory Rule

• The instrument includes explanatory details and endnotes. The endnotes expressly state that "Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of a Statutory Rule" (Endnote 1). However, other ILA-related material (headings, notes, punctuation) is part of the Statutory Rule where the ILA so provides. Practitioners must therefore be careful: do not treat explanatory material as operative law; check the Regulations’ text and be ready to invoke the parent Act or court practice for procedural matters.

6. Sunset provision

• The instrument will sunset on 27 April 2031 under the Subordinate Legislation Act 1994 (endnote 1). That requires forward planning: if a practitioner or agency is relying on the prescription for long-term arrangements they must watch for a remaking or replacement well before that date. The sunset is automatic unless action is taken.

7. Reliance on the parent Act for substance

• The Regulations are definitional and rely on the parent Act for substantive effect. A common trap is to treat the Regulations as self-sufficient for conducting cross-jurisdictional examinations. They are not. Any substantive authority to compel testimony, determine modes of examination, or impose sanctions will be located in the Evidence (Miscellaneous Provisions) Act 1958 and in court rules.

8. Possible expectation mismatch between registries

• The Regulations direct interlocutory traffic to specific institutions, but registry practices differ by jurisdiction. A practitioner who files a request in the prescribed Supreme Court must still comply with local practice directions and registry requirements; assuming uniform process across all prescribed courts is risky.

These gotchas mostly concern scope, phrasing differences, lifecycle timing, and the need to link the Regulations to the parent Act and local court practice. None of the gotchas introduces new legal obligations beyond those in the parent Act; they are points where an inattentive practitioner can misroute an application or be uncertain about process because the Regulations are deliberately minimalist.

Given the Regulations’ narrow, prescriptive nature, compliance is a matter of aligning the practical steps for obtaining evidence from witnesses outside Victoria with the list of the prescribed "judicial authorities" and ensuring procedural steps under the parent Act and court practice are followed. The following compliance checklist translates the Regulations’ operative content into actionable steps, with section references to the instrument.

1. Confirm the legal basis: identify s 9G of the Evidence (Miscellaneous Provisions) Act 1958 as the enabling provision that triggers the need to engage an external "judicial authority" (Reg 1 identifies the objective relating to s 9G). Review the parent Act for procedural steps; the Regulations do not create procedure.

2. Identify the correct external authority from regulation 5:

• Australian Capital Territory: Supreme Court of the Australian Capital Territory (reg 5(a)).
• New South Wales: Supreme Court of New South Wales (reg 5(b)).
• Northern Territory: a judge of the Supreme Court of the Northern Territory (reg 5(c)).
• Queensland: Supreme Court of Queensland (reg 5(d)).
• South Australia: Supreme Court of South Australia (reg 5(e)).
• Tasmania: Supreme Court of Tasmania (reg 5(f)).
• Western Australia: Supreme Court of Western Australia (reg 5(g)).

3. Frame applications or requests to the prescribed authority:

• Address forms, letters, and filings to the prescribed institutional actor (for the NT, ensure the request is directed to a judge of the Supreme Court, consistent with reg 5(c)). Do not direct s 9G requests to non-prescribed courts or officers (e.g., federal courts or magistrates) unless the parent Act or another instrument provides for them.

4. Check local court practice and registry requirements:

• The Regulations do not stipulate forms, fees, or timeframes. Before lodging any document, consult the practice directions, forms and registry guidance of the prescribed Supreme Court in the relevant jurisdiction to identify procedural steps and fees.

5. Be aware of the commencement and revocation dates:

• These Regulations commenced on 16 May 2021 (reg 3). They revoke the 2011 Regulations (reg 4). For any matter that straddles the revocation date, do not assume transitional arrangements exist; confirm with the registry or by reference to the parent Act how to treat previously lodged matters.

6. Note the sunset date and plan accordingly:

• The instrument will sunset on 27 April 2031 per the Subordinate Legislation Act 1994 (Endnote 1). If your practice requires ongoing use of the s 9G prescription, monitor parliamentary and subordinate legislation notices for remaking or replacement instruments well before that date.

7. Use interpretative aids cautiously:

• The endnotes summarise ILA rules about headings, examples, punctuation and provision numbers forming part of a Statutory Rule under certain ILA sections. Treat the Regs’ headings and numbering as part of the rule for interpretive purposes, but do not rely on explanatory memoranda or endnotes as operative law (Endnote 1 warns these do not form part of a Statutory Rule).

8. Keep documentary records of jurisdictional communications:

• When engaging with an external prescribed authority, keep clear records of filings, service, and communications to demonstrate that the request was made to the authority prescribed by reg 5. This avoids disputes about whether the correct counterpart was engaged.

9. If uncertainty arises, seek directions from the relevant registry or court:

• Because the Regulations do not set out procedure, where there is uncertainty about the appropriate form, process or officer, practitioners should seek guidance from the nominated Supreme Court registry or obtain pre-filing directions from the Victorian court handling the parent Act matter.

10. Do not assume the Regulations affect substantive law:

• The Regulations alter the list of prescribed external authorities; they do not change the substantive rights, modes of examination, or admissibility rules under the Evidence (Miscellaneous Provisions) Act 1958. Ensure compliance steps include consulting the parent Act and any relevant evidence or procedural rules.

Following these steps aligns operational practice with the Regulations’ prescription. Because the instrument is concise and mostly definitional, successful compliance depends on marrying the reg 5 list with the procedural rules and practices of the parent Act and the local Supreme Court registry in the relevant jurisdiction.