Evidence (Fees, Allowances and Expenses) Regulations 2008

These regulations set the monetary and administrative framework for fees, allowances and expenses payable to persons who do "eligible service" under section 119 of the Evidence Act 1906, by prescribing specific sums, rates and procedural requirements. They prescribe nominal flat fees for ordinary witnesses (a half‑day fee of $10 and a full‑day fee of $15) (reg 4(1) and the Table to reg 4), while also providing mechanisms by which higher payments can be made where actual loss of income is demonstrated (reg 4(2)). The regulations separately address expert witnesses and interpreters, specifying that both categories are entitled to claim fees and expenses but that payment is subject to the liable person’s judgment about what is reasonable and justifiable in each case (regs 5 and 6).

Travel and related expenses are regulated by formulae and pre-approval rules. Public conveyance fares are prescribed as expenses (reg 7(1)); where public conveyance is not available, road travel is reimbursed at 37.5 cents per kilometre (reg 7(2)). Air travel requires prior approval from the liable person except where it was not practicable to obtain prior approval, in which case the liable person may, at their discretion, pay the air fares (reg 8). Meal allowances are fixed for day travel beyond 40 kilometres (breakfast $10, lunch $10, dinner $20) and overnight meal costs are payable as actual costs subject to the liable person’s view of reasonableness (reg 9). Accommodation costs for overnight stays are payable only for accommodation at a hotel, motel or other place that the liable person considers reasonable having regard to the circumstances (reg 10).

The regulations prescribe a class of employers who may be reimbursed under section 119(6) of the Act , specifically a Government department, a State instrumentality and a State trading concern (reg 11). They set out the documentary requirements for employer reimbursement claims, requiring a statutory declaration containing specified particulars including the employer’s Australian Business Number, earnings paid to the eligible person, the eligible person’s occupation, hourly rate and hours of service lost (reg 12(2)). The 1976 regulations on the same subject are repealed by reg 13.

Operationally, the regulations delegate significant evaluative discretion to the "liable person" on questions of reasonableness and prior approval, they require documentary proof where employers seek reimbursement, and they fix several low, statutory amounts and a per-kilometre rate for road travel.

Eligible service: The regulations operate entirely in relation to persons doing "eligible service" for the purposes of section 119 of the Evidence Act 1906, a term the regulations reference repeatedly when prescribing fees, allowances and expenses (see regs 4-12). The regulations do not redefine or expand "eligible service"; they apply specified monetary rules to persons while doing that service.

Categories of claimant: The text distinguishes three functional claimant categories. Ordinary persons who do eligible service are subject to the Table of fees in reg 4(1) unless they can demonstrate higher loss of income (reg 4(2)). Expert witnesses are separately defined in reg 3 as persons called to give opinion evidence because of their special skill, technical knowledge or professional qualifications, and they have a distinct entitlement to claim fees and expenses (reg 5). Interpreters have a similar regime to expert witnesses under reg 6.

The liable person: The regulations repeatedly refer to "the liable person" as the decision maker who pays fees and determines what is reasonable. The regulations do not define "liable person" within their text, so the term functions as an operative actor whose powers include payment of fees, assessment of reasonableness and grant of prior approval for air travel (see regs 4(2), 5(2), 6(2), 8(1)-(3), 9(2), 10).

Prescribed monetary items: The regulations fix nominal flat fees for doing eligible service (half‑day $10, full‑day $15) in reg 4(1) and the Table to subregulation (1). They prescribe a road travel allowance at 37.5 cents per kilometre where public conveyance is unavailable (reg 7(2)). Meal allowances for same‑day travel beyond 40 kilometres are fixed at $10 for breakfast, $10 for lunch and $20 for dinner (reg 9(1) and Table). Overnight meal and accommodation costs are payable as actual costs but only to the extent the liable person judges them reasonable (regs 9(2) and 10).

Employer reimbursement: The regulations prescribe a class of employers eligible for direct payment in lieu of the eligible person (reg 11). If an eligible person is employed under a contract of service and the employer applies, the liable person is to pay any fee otherwise payable to the eligible person to the employer (reg 12(1)). The application must be verified by statutory declaration and contain specified items of information (reg 12(2)).

Repeal and commencement: The regulations repeal the earlier Evidence (Witnesses’ and Interpreters’ Fees and Expenses) Regulations 1976 (reg 13). The regulations specify staged commencement: regs 1 and 2 commenced on publication date, the remainder commenced when Part 11 of the Acts Amendment (Justice) Act 2008 came into operation (reg 2).

Witnesses and others doing eligible service: Any person who is required to do eligible service under section 119 of the Evidence Act 1906 falls within the operational scope of these regulations. That includes ordinary witnesses, expert witnesses (as defined in reg 3), and interpreters who do eligible service (regs 3, 4, 5, 6). Each category has an entitlement to claim fees or expenses, although the level and mechanism for payment differ by category.

Employers: Employers of eligible persons are affected in two principal ways. First, if an employer is a member of the prescribed class in reg 11 (a Government department, a State instrumentality or a State trading concern), the employer may apply to the liable person to receive payment of fees otherwise payable to the eligible person (reg 12(1)). That means certain employers can be reimbursed directly rather than the employee receiving the fee. Secondly, employers who are not in the prescribed class do not appear in the regulations to be eligible for reimbursement under reg 12 and therefore remain exposed to any contractual or industrial consequences of an employee doing eligible service without the reimbursement pathway.

The liable person: The regulations assign operational duties and discretionary power to whatever entity or person is the "liable person" under the Act (the regulations do not themselves define that term). The liable person pays fees, assesses reasonableness of expense claims, grants prior approval for air travel, and decides questions about accommodation and overnight meal costs (see regs 4-10, 12). That role carries administrative burden and legal exposure to challenges about discretionary decisions, although the regulations do not create a formal review or appeal procedure.

Government bodies and auditors: Government departments, State instrumentalities and State trading concerns are both potential recipients of reimbursement (reg 11) and parties that may be required to provide statutory declarations with detailed financial information in support of reimbursement applications (reg 12(2)). The requirement for an employer ABN and quantified details of hours and earnings means these bodies will need to collect and certify identifiable payroll information.

Claim administrators and courts: Entities that process claims must assess receipts and veracity, judge reasonableness, and record prior approvals, particularly for air travel (reg 8). Where the liable person’s opinion is the payment condition, administrators must document rationales. Courts or tribunals (to the extent they adjudicate disputes arising under the Act) will confront a statutory scheme that confers discretion rather than objective caps.

Entitlements to claim: The regulations create explicit entitlements. Ordinary persons who do eligible service are prescribed a fee for a half‑day ($10) and a full day ($15) (reg 4(1) and Table). Expert witnesses and interpreters are each expressly "entitled to claim fees" and "expenses incurred in the course of or for the purpose of doing eligible service" (regs 5(1) and 6(1)). Persons who travel on public conveyance have that fare prescribed as an expense (reg 7(1)). Persons required to travel more than 40 kilometres without overnight stay are entitled to set meal allowances (reg 9(1) and Table). Persons required to remain away overnight are entitled to be paid actual meal costs and accommodation costs subject to the liable person’s opinion as to reasonableness (regs 9(2) and 10).

Discretionary payment by the liable person: A recurring duty is placed on the liable person to pay claims, but only "to the extent that they are, in the person’s opinion, reasonable and justifiable in each particular case" for experts and interpreters (regs 5(2), 6(2)). For overnight meals and accommodation, the liable person similarly pays amounts that the person thinks reasonable in the circumstances (regs 9(2) and 10). That assigns an evaluative duty but also discretionary latitude.

Higher payment for lost income: If the liable person is satisfied that a non-expert, non-interpreter person has lost income greater than the flat fee, the liable person may pay a fee that equals that loss (reg 4(2)). That gives claimants a route to recover actual lost earnings subject to the liable person’s satisfaction.

Air travel prior approval: Air travel must receive prior approval from the liable person for its cost to be a prescribed expense unless the liable person is satisfied prior approval was not practicable, in which case the liable person may still pay the fares (reg 8(1)-(3)). This creates an affirmative duty on claimants to seek prior approval and on the liable person to grant or withhold it; it also creates a post hoc exception where prior approval was impracticable.

Employer reimbursement duties: The liable person is directed to pay fees otherwise payable to an eligible person to the employer if the employer applies under section 119(6) (reg 12(1)). The employer has a duty to provide particular information verified by statutory declaration, including ABN, earnings, occupation, hourly rate and hours lost (reg 12(2)). That imposes administrative duties on employers to collate payroll and time data and to supply a statutory declaration.

Record and reason disclosure: While not expressed as a standalone duty, the structure of the regulations imposes a practical duty on the liable person to assess and record the reasonableness and justifiability of claims for experts, interpreters, overnight meals and accommodation, and to record decisions on prior approval for air travel, since payment depends on that opinion (regs 5(2), 6(2), 8, 9(2), 10). The regulations do not prescribe the form of the record or any appeal route.

No penalties specified in the regulations: The Evidence (Fees, Allowances and Expenses) Regulations 2008 do not themselves create offences or specify monetary penalties, fines, or criminal sanctions for non‑compliance. The text contains no penal provisions nor does it assign enforcement powers or remedies within the regulations themselves. That absence means the scheme is primarily administrative and payment‑oriented rather than punitive.

Enforcement by payment refusal and discretion: The principal mechanism of enforcement embedded in the regulations is the liable person’s discretion to refuse payment or to limit payment to what the liable person considers reasonable and justifiable (see regs 5(2), 6(2), 9(2), 10). Operationally, that puts control of outcomes in the hands of the liable person; denial or reduction of claims functions as the practical enforcement device.

Documentary verification and statutory declaration: For employer reimbursement the regulations require an application verified by statutory declaration supplying specified particulars (reg 12(2)). The statutory declaration requirement functions as a legal attestation and exposes applicants to penalties under the laws governing false statutory declarations outside these regulations. The regulation itself does not specify the consequences of a false statutory declaration but the requirement raises the evidentiary threshold and creates potential legal risk for false statements.

Administrative risks and potential dispute pathways: The regulations allocate discretion without prescribing internal review procedures. Where the liable person declines to pay or pays less than claimed, the regulations do not specify an internal appeal right, time limits for decisions, or dispute resolution mechanics. Any enforcement or challenge would therefore depend on remedies available under the Evidence Act 1906 or general administrative law, neither of which is set out in these regulations. The regulations’ silence on appeals and timeframes is a structural enforcement gap that requires administrators and claimants to know or identify the Act’s provisions or common law remedies to pursue disputes.

Audit and record-keeping obligations implied: The requirements for specific documentary items in employer applications (reg 12(2)) and the centrality of the liable person’s opinion imply that the liable person should keep records to justify decisions. The regulations do not create a statutory obligation to retain records for a minimum period, but practical enforcement and audit functions will require such record-keeping.

Dependence on section 119 of the Act: The regulations repeatedly state that they prescribe sums and expenses "for the purposes of section 119" of the Evidence Act 1906 (see regs 4(1), 7(1), and the general framing of Part 2). That means the regulatory provisions operate within the statutory framework established by that section of the Act. The regulations therefore modify the practical operation of the Act’s payment regime but do not rewrite the Act; they implement monetary and procedural detail for the Act’s operation.

Commencement linked to other legislation: The regulations’ operative commencement is staged. Regulations 1 and 2 commenced on the date of Gazette publication, while the remainder came into operation on the day when Part 11 of the Acts Amendment (Justice) Act 2008 came into operation (reg 2). That linkage indicates the regulations were designed to work in concert with amendments effected by the Acts Amendment (Justice) Act 2008.

Employer obligations and wider statutory context: The employer reimbursement procedure requires an Australian Business Number and a statutory declaration (reg 12(2)). Those requirements place the application within the broader statutory environment for business identification and for sworn declarations. The regulations do not create the ABN requirement, but rely on the ABN system as an identifier and the statutory declaration as an evidentiary tool. Compliance therefore interacts with laws governing ABN registration and laws governing statutory declarations, though those laws are external to the regulations.

Repeal of prior regulations: The regulations expressly repeal the 1976 Evidence (Witnesses’ and Interpreters’ Fees and Expenses) Regulations (reg 13). That repeal transfers rights, duties and procedures from the 1976 instrument to the 2008 instrument, so any legal processes or practice directions that referred to the 1976 regulations need to be updated to reflect the 2008 framework.

Uncommenced legislation flagged in compilation notes: The compilation table and uncommenced provisions table reference an "Evidence Act 2025" assented 25 September 2025 (see Uncommenced provisions table). The presence of that entry in the compilation indicates that a subsequent Act may affect the operation of these regulations once proclaimed, but the uncommenced status means there is no current operative effect. Administrators should monitor proclamation of that Act since it may alter the regulatory framework.

Administrative law and discretion: The regulations allocate evaluative discretion to the liable person in numerous places. The exercise of that discretion will interact with general principles of administrative law and procedural fairness, though the regulations do not themselves set procedural rules. The absence of procedural prescription places weight on the administering body to apply fair processes and to maintain records supportive of decisions, consistent with general administrative law requirements outside the text of these regulations.

Gazettal and commencement: The regulations were gazetted on 26 September 2008 and came into operation in two stages. Regulations 1 and 2 (citation and commencement) commenced on the date of Gazette publication, that is 26 September 2008. The remainder of the regulations commenced on 30 September 2008, coinciding with the commencement of Part 11 of the Acts Amendment (Justice) Act 2008, as recorded in the compilation table.

Repeal of earlier regulations: Regulation 13 expressly repeals the Evidence (Witnesses’ and Interpreters’ Fees and Expenses) Regulations 1976. That is a carried-forward statutory change transferring the regulatory regime from the 1976 instrument to the 2008 instrument.

Compilation and publishing notes: The printed compilation contains a standard note stating that it is a compilation of the Evidence (Fees, Allowances and Expenses) Regulations 2008 and that readers should check the compilation table for provisions that have come into operation and the uncommenced provisions table for those not yet in force. The compilation table reproduces the gazettal and commencement particulars.

Uncommenced subsequent Act noted: The uncommenced provisions table in the compilation lists an "Evidence Act 2025" assented to 25 September 2025, with section 387(c) cited and a note that it is "To be proclaimed" (see uncommenced provisions table). That is recorded as an external item that may affect the regulatory landscape if and when proclaimed, but it did not alter these regulations’ operative status at their 2008 commencement.

No subsequent amendments recorded in this compilation: The text supplied does not include later amending regulations or amendments to the 2008 regulations beyond the repeal of the 1976 instrument and the specified commencement. If later legislative instruments amended these regulations after gazettal and commencement, they are not recorded in the provided compilation extract. Practitioners should consult the consolidated source for any later amendments.

Defined-term updates: The regulations define "expert witness" in reg 3 and list defined terms in the Defined terms note, which includes eligible person (defined at reg 12(1)) and expert witness (reg 3). There is no further amendment history recorded in this extraction. The provisions therefore stand as originally enacted in the 2008 instrument, with the statutory repeal of the 1976 regulations effected by reg 13.

Practical effect of repeal: By repealing the 1976 regulations and replacing them with the 2008 rules, the legislature created the current tabled fees, allowances and the employer reimbursement process. The repeal means administrative practices relying on the 1976 framework needed updating as of the 2008 commencement.

No cases or litigation referenced: The regulations themselves do not reference any case law, judicial interpretations, or litigation history. The compiled text contains no entries for judicial determinations concerning these regulations.

Absence of recorded litigation in the text: The provided compilation and notes do not record any challenges, declarations, or reported decisions arising under these specific regulations. That does not mean litigation has not occurred, only that none is recorded in this legislative extract.

Potential litigation vectors (structural only): The regulatory structure suggests predictable areas where disputes could arise, because the regulations allocate evaluative discretion to the liable person without specifying procedural safeguards. Potential disputes that could produce litigation include:

• Whether the liable person’s assessment of "reasonable and justifiable" fees for experts and interpreters is lawful, procedurally fair or made according to the correct standards (see regs 5(2), 6(2)).
• Whether an employer qualifies as part of the prescribed class under reg 11 and whether the employer’s statutory declaration satisfies reg 12(2) to trigger reimbursement under reg 12(1).
• Whether prior approval for air travel was practicable and whether the liable person correctly exercised discretion to pay or deny air fares under reg 8.
• Whether decisions about overnight meal and accommodation costs meet administrative law standards when those costs are payable "in the opinion of the liable person" (regs 9(2), 10).

These are descriptive potentialities grounded in the text; the regulations do not record litigation outcomes related to them.

No appellate or authoritative interpretation included: Because the regulations make significant use of an undefined "liable person" and rely on the Act for operative terms, authoritative interpretation from courts or tribunals could be important. The regulations do not include such interpretive guidance, and no judicial history is supplied in the document.

"Liable person" undefined in the regulations: The regulations repeatedly make payment and approval contingent on the opinion of "the liable person" (for example regs 4(2), 5(2), 6(2), 8(1), 9(2), 10). The regulations do not define who the liable person is. Practitioners must therefore refer to the Act to identify the decision-making body or person and the scope of their authority. The undefined role creates practical risk around who must be approached for prior approval, who has records, and who will decide disputes.

Very low flat fees for ordinary attendance: The Table in reg 4(1) prescribes $10 for a half‑day and $15 for a full day for doing eligible service. Those amounts apply unless the liable person is satisfied that the person has lost income greater than the prescribed fee in which case the liable person may pay an amount equal to that loss (reg 4(2)). The combination of a low statutory floor and a discretionary top-up requires claimants to document income loss and to obtain the liable person’s satisfaction.

Disparate treatment by claimant type: Expert witnesses and interpreters have entitlement to claim fees and expenses (regs 5 and 6) with payments subject to the liable person’s opinion of reasonableness, whereas ordinary witnesses receive nominal fixed fees unless loss is shown (reg 4). This creates different evidentiary and administrative burdens for different witness categories.

Prior approval required for air travel: For air travel costs to be a prescribed expense, prior approval by the liable person is required, except when it was not practicable to obtain it (reg 8(1)-(3)). Claimants who fail to obtain prior approval risk non‑payment unless they can demonstrate impracticability post hoc.

Strict documentary requirements for employer reimbursement: Employers applying for payment on behalf of an eligible person must supply a statutory declaration including ABN, earnings, name, occupation, hourly rate and the number of hours lost (reg 12(2)). Failure to provide these particulars, or to verify them by statutory declaration, will likely result in rejection of the claim.

Prescribed employer class excludes private employers: The class of employer eligible for direct payment is confined to a Government department, a State instrumentality, and a State trading concern (reg 11). That excludes private sector employers and many non-state public sector bodies. Employers outside the three listed categories will not have the statutory reimbursement route under reg 12.

Reasonableness tests are opinion‑based: For experts, interpreters, overnight meals and accommodation the liable person’s opinion of what is reasonable is the payment condition (regs 5(2), 6(2), 9(2), 10). The text does not provide objective criteria for reasonableness, nor timeframes for decisions, nor review mechanisms. That increases the likelihood of administrative disputes and the need for recordable rationales supporting payment decisions.

For claimants (witnesses, experts, interpreters)

• Establish category: Identify whether you are an ordinary witness, an expert witness as defined by reg 3, or an interpreter. The entitlements and evidentiary expectations differ by category (regs 3, 4-6).
• Document loss of income: If you are not an expert or interpreter and you seek more than the flat fee in reg 4(1), prepare evidence demonstrating actual lost income. The liable person may pay an amount equal to that loss if satisfied (reg 4(2)). Keep pay slips, employer statements and records of hours lost.
• Keep receipts and travel records: For travel by public conveyance retain tickets and receipts (reg 7(1)). If no public conveyance is available and you claim road travel, record kilometres travelled and compute the claim at 37.5 cents per kilometre (reg 7(2)).
• Seek prior approval for air travel: Before purchasing air tickets, apply to the liable person for prior approval; air fares are only prescribed expenses if prior approval is obtained, unless it was impracticable to obtain approval (reg 8(1)-(3)). If prior approval cannot be obtained for practical reasons, document why it was impracticable.
• Meal and accommodation claims: For same‑day travel beyond 40 kilometres, claim the fixed meal allowances in reg 9(1) and retain receipts where possible. For overnight stays, keep all meal and accommodation receipts and be prepared to justify costs to the liable person, whose opinion of reasonableness governs payment (regs 9(2), 10).
• Itemise and justify expert and interpreter claims: Experts and interpreters should submit itemised claims with the nature of expenses, time spent, qualifications or certification for expert status, and reasons why fees and expenses are reasonable and justifiable in the particular case, because payment depends on the liable person’s opinion (regs 5(1)-(2), 6(1)-(2)).
• Submit timely claims and follow administrative forms: Although the regulations do not prescribe filing time limits or forms, follow any procedural directions from the liable person and supply receipts, tickets, and any requested evidence promptly to avoid discretionary denials.

For employers seeking reimbursement

• Check employer classification: Confirm that your organisation is within the prescribed class in reg 11 (Government department, State instrumentality, State trading concern). Employers outside that list are not covered by reg 12.
• Prepare a statutory declaration: The employer must make an application verified by statutory declaration and include the employer’s ABN, earnings paid to the eligible person for the period of eligible service, the eligible person’s name and occupation, the hourly rate paid, and the number of hours of service lost (reg 12(2)). Ensure payroll records and time sheets are accurate and retained.