The Regulation’s reach is limited but operationally significant. Primary addressees are legal practitioners who appear in NSW courts and who, on behalf of their clients, must decide whether to adduce evidence that triggers a notice obligation under ss 67, 97 or 98 of the Act. Because the notices must be given in advance of the hearing, the Regulation directly shapes trial preparation, interlocutory strategy and settlement negotiations.

Parties to both civil and criminal proceedings are affected. In civil matters the notifying party must disclose addresses of named persons (cll 4(2)(c)(iii), 5(2)(b)(iii), 6(2)(b)(iii)). In criminal matters the default position is non-disclosure of addresses unless a court orders otherwise on application (cll 4(7), 5(3), 6(3)). This distinction reflects the heightened safety and privacy concerns that arise when witnesses or complainants are identified in the criminal justice system.

Police officers—both State/Territory and Australian Federal Police—are directly regulated when they seek to prove identity by fingerprint comparison. The Regulation tells them exactly what their affidavit must say, what must be annexed, and what certificate must appear at the foot of the document. Failure to use the prescribed form risks the affidavit being ruled inadmissible or attracting unnecessary objections.

Witnesses who claim the privilege against self-incrimination are affected when a court grants them a certificate under s 128 or s 128A. The Regulation standardises the certificate’s content and expressly preserves its protective effect even if the certificate deviates from Form 1 (cl 7(2)). The declarations in cl 8 extend that protection by ensuring that evidence given under a NSW certificate cannot be used in prosecutions under equivalent laws in the listed jurisdictions.

Courts and judicial officers are the ultimate gatekeepers. They receive the notices, rule on their sufficiency, determine applications for address disclosure in criminal cases, and issue the certificates. The detailed content requirements reduce the scope for argument about whether “reasonable notice” has been given.

Finally, the Regulation indirectly affects the broader justice system by ensuring that the automatic repeal mechanism in the Subordinate Legislation Act 1989 does not create a regulatory gap. The savings clause (cl 11(2)) protects continuity for any notice or certificate issued under the 2015 Regulation.

The Regulation creates a series of interlocking duties and correlative rights.

The central duty is the obligation to give a notice that complies with the minutiae of cll 4, 5 or 6. The notifying party must not only state the “substance” of the evidence but must also provide a comprehensive account of every other relevant representation made by the same person (cl 4(2)(b)). This duty is not satisfied by a bare assertion; the notice must descend to particulars of date, time, place, circumstances, names and (in civil cases) addresses. Where the hearsay exceptions in ss 63, 64 or 65 are relied upon, the notifying party must additionally particularise the facts said to establish unavailability or the grounds in s 64(2). These duties are absolute in the sense that the Act’s admissibility gateways are conditioned on notice having been given “in accordance with” the Regulation.

A corresponding right arises for the recipient of the notice: the ability to prepare objections, gather rebuttal evidence, or make forensic decisions with eyes wide open. In criminal proceedings the accused gains an additional procedural right to apply for an order that addresses be disclosed (cll 4(7), 5(3), 6(3)). The court’s power is discretionary and may be granted on terms, thereby balancing the accused’s right to a fair trial against witness safety.

For fingerprint evidence, the deponent’s duty is to follow the script in Form 2 or Form 3 verbatim. The prescribed recitals about expertise, comparison, belief in the accuracy of records, and identity of the convicted person are not optional. The annexures of certified copies of convictions are mandatory. The Oaths Act 1900 certificate at the foot of the affidavit imposes a further duty on the witness to the affidavit (the JP, lawyer or notary) to record whether they saw the deponent’s face and how identity was confirmed.

Witnesses who give evidence under a s 128 or s 128A certificate obtain a statutory immunity. The Regulation’s role is to facilitate the grant of that immunity in a standardised form. Clause 7(2) creates a right to have a non-compliant certificate treated as valid, removing a technical avenue of attack that might otherwise undermine the immunity.

The definitions in cl 3(1) affect rights and duties at the margins. “Address” is expressly defined to include private, business or official addresses, closing off arguments that only one category need be supplied. The note to cl 3(1) incorporates the Interpretation Act 1987 and the Act itself, so that defined terms in those statutes (for example, “NSW court”, “criminal proceeding”) feed directly into the Regulation.

The Regulation itself contains no offence-creating provisions or direct monetary penalties. Enforcement occurs indirectly through the admissibility rules of the Act. If a notice under s 67, s 97 or s 98 fails to meet the requirements of cll 4, 5 or 6, the court may exclude the evidence or adjourn the proceeding to allow proper notice to be given. In criminal trials, wrongful exclusion or admission can found an appeal ground.

The saving provision in cl 7(2) is a deliberate anti-technicality measure: a certificate under s 128 or s 128A cannot be attacked merely because it deviates from Form 1. This protects the witness’s immunity and prevents collateral litigation.

Fingerprint affidavits that depart from Forms 2 or 3 risk being given diminished weight or excluded under the court’s general discretion, although the Regulation does not expressly state the consequence of non-compliance. In practice, courts treat strict adherence as the safest course.

The savings clause in cl 11(2) ensures that enforcement mechanisms triggered under the 2015 Regulation continue seamlessly. There is no lacuna that could be exploited to argue that a notice or certificate issued before the repeal date has lost its legal effect.

The Regulation is expressly parasitic on the Evidence Act 1995. Every substantive obligation it creates is tied to a section of that Act. It also picks up the definition of “NSW court” and “criminal proceeding” from the Act.

Clause 3(1) incorporates the Interpretation Act 1987. That Act’s rules on the construction of instruments, the meaning of “person”, and the effect of repeal (s 30) apply to the Regulation. The note to cl 2 records that the Regulation was made to avoid the automatic repeal of the 2015 Regulation under s 10(2) of the Subordinate Legislation Act 1989, illustrating the layered relationship between principal and subordinate legislation.

The forms in Schedule 1 interact with the Oaths Act 1900. The certificate under s 34(1)(c) of that Act is reproduced in both Form 2 and Form 3 and must be completed by the person before whom the affidavit is sworn. This linkage ensures that remote witnessing and identity verification requirements introduced in response to public health emergencies remain compliant.

Clause 8 creates a formal bridge to the uniform evidence law scheme operating in the ACT, Northern Territory, Tasmania, Victoria and Western Australia, and to certain coronial statutes. By declaring those provisions “prescribed”, the Regulation ensures that a certificate given in NSW under s 128 or s 128A attracts reciprocal protection in those jurisdictions, and vice versa. This is a practical manifestation of the harmonisation goal that underpinned the uniform Evidence Acts.

The Regulation does not interact with the Commonwealth Evidence Act 1995 in the same direct way, but the inclusion of a Form for Australian Federal Police officers (Form 3) recognises that federal fingerprint records are frequently tendered in NSW courts.

The Regulation repeals the Evidence Regulation 2015 (cl 11(1)) and replaces it with an almost identical instrument. The change was required because the 2015 Regulation was due to expire on 1 September 2020 under the five-year sunset provision in s 10(2) of the Subordinate Legislation Act 1989. The new Regulation therefore performs a routine maintenance function rather than a policy shift.

The text of the 2020 Regulation is substantially the same as its predecessor. The definitions clause, the three notice clauses, the certificate and declaration clauses, the fingerprint affidavit clauses and the savings clause all replicate the earlier scheme. The forms in Schedule 1 are unchanged. The only observable difference is the updating of cross-references and the fresh commencement date.

The savings provision in cl 11(2) is critical. It ensures that any notice given, certificate issued or affidavit sworn under the 2015 Regulation continues to have effect as though it had been done under the 2020 Regulation. This prevents parties from having to re-serve notices or re-swear affidavits solely because of the repeal.

The reason for the remake is therefore legislative housekeeping. Subordinate legislation in New South Wales is routinely remade every five years to satisfy the sunset regime while preserving continuity. No amendment to the scope or substance of the notice or form requirements was considered necessary.

The Regulation itself contains no recitals or notes describing litigation that prompted its making. Because the instrument is purely procedural, reported challenges tend to focus on whether a particular notice satisfied the detailed requirements of cl 4, 5 or 6 rather than on the validity of the Regulation.

The address-disclosure provisions in criminal proceedings (cll 4(7), 5(3), 6(3)) have the potential to generate interlocutory disputes. An accused seeking addresses of civilian witnesses may argue that without them effective investigation or subpoenaing is impossible; the Crown may resist on safety grounds. The Regulation leaves the balancing exercise entirely to the court “on any terms that the court thinks fit”, providing no statutory presumption either way.

The saving provision in cl 7(2) was included to head off technical objections to the form of s 128 certificates. Its presence indicates that, prior to the 2015 Regulation, such objections had been taken. The clause removes that avenue of attack, thereby reducing satellite litigation.

No controversy is recorded in the text concerning the declared equivalent provisions in cl 8. Their inclusion reflects a continuing policy of mutual recognition across uniform evidence jurisdictions and selected coronial statutes.

Because the Regulation is not an amending Act but a remake, it has not itself been the subject of constitutional challenge or high-profile judicial review. Its operation is assumed to be valid subordinate legislation authorised by the regulation-making power in the Evidence Act 1995.

Most practitioners assume that a notice is adequate if it broadly describes the evidence. Clause 4(2)(b) contains a trap: the notifying party must also disclose “the substance of all other relevant representations made by the person who made that previous representation, so far as they are known to the notifying party”. This obligation extends to representations that may be unfavourable to the notifying party. Failure to include them can render the notice defective.

In civil proceedings the obligation to provide addresses is absolute (cll 4(2)(c)(iii), 5(2)(b)(iii), 6(2)(b)(iii)). Many lawyers copy the criminal-proceeding language and omit addresses, creating an unnecessary objection point. Conversely, in criminal proceedings the default is non-disclosure; an application to the court is required. Assuming symmetry between civil and criminal notice obligations is a common error.

Clause 7(2) is often overlooked. A certificate that does not mirror Form 1 exactly is still effective. The provision prevents an opponent from mounting a collateral attack on the certificate’s wording, yet many advocates still object on formal grounds.

The fingerprint forms require the deponent to state that they “believe” the conviction records to be accurate and that they “believe” the person named in the conviction is the same person whose fingerprints appear on the cards. These are statements of belief, not knowledge. The distinction matters because cross-examination on the belief may open up lines of inquiry that would not be available if the deponent claimed positive knowledge.

The Oaths Act 1900 certificate at the foot of Forms 2 and 3 must be completed. It is not decorative. A failure to address whether the witness saw the deponent’s face or relied on an identification document can lead to the entire affidavit being challenged on attestation grounds.

The note to cl 3(3) states that notes do not form part of the Regulation. Yet the notes to the forms in Schedule 1 reproduce the text of s 128(7) and s 128A(8). Practitioners sometimes treat those extracts as exhaustive, forgetting that the full text of the sections contains additional qualifications (for example, the exception for proceedings for falsity of the evidence).

Finally, the Regulation only governs notices given under the identified sections of the Act. Parties sometimes serve a “notice” that is not tied to a statutory trigger and then assume the Regulation’s content requirements apply. They do not; the Regulation’s duties are engaged only when the Act itself requires the notice.

Compliance begins with a checklist approach. When intending to adduce previous representation, tendency or coincidence evidence, counsel must:

1. Identify the exact statutory gateway (s 67, s 97(1)(a) or s 98(1)(a)).
2. Draft the notice strictly in accordance with the relevant clause (4, 5 or 6).
3. For previous representation notices, list every other relevant representation known to the party (cl 4(2)(b)).
4. Where reliance is placed on unavailability exceptions, particularise the facts said to establish unavailability or the s 64(2) grounds.
5. In civil proceedings, include addresses; in criminal proceedings, consider whether an application for disclosure will be necessary or whether the opponent will be invited to make it.
6. Attach a copy of any written document or the relevant extract (cl 4(5)).
7. Serve the notice within any time limit set by court order or practice note; the Regulation itself is silent on timing, which is left to the court’s case management powers.

For self-incrimination certificates, the judicial officer should use Form 1 but may depart from it without invalidating the certificate (cl 7(2)). The certificate must be accompanied by a record of the evidence to which it relates, and that record must be authenticated.

When commissioning fingerprint affidavits, the deponent must follow Forms 2 or 3 word for word. The annexures must be marked with sequential letters commencing at “B”. The Oaths Act 1900 certificate must be completed in full, addressing both face-to-face identification and the 12-month acquaintance or production of an identification document. Remote witnessing compliance must be recorded.

All notices and affidavits should be checked against the definitions in cl 3. “Address” is deliberately wide. Notes are to be ignored for interpretive purposes.

Because the Regulation was remade with a savings clause, any notice or certificate prepared before its commencement date remains effective. There is no need to re-serve documents solely because the 2015 Regulation has been repealed.

In practice, the safest course is to treat the Regulation as a statutory template. Deviations invite objection and delay. Where a court order for address disclosure is sought in a criminal matter, the application should be supported by evidence explaining why the address is necessary for the conduct of the defence and any undertakings proposed to protect witness safety. The court’s power is broad (“on any terms that the court thinks fit”), so creative conditions can be proposed.

Compliance is not merely mechanical. The notice requirements exist to eliminate trial by ambush and to allow the opponent a fair opportunity to meet the evidence. Treating the clauses as a minimum rather than a complete code is the most common source of non-compliance. A notice that recites the language of the Regulation but fails to provide the actual particulars required by subclause (2) will be held insufficient.

By following the Regulation’s detailed roadmap, practitioners minimise the risk of evidence being excluded, reduce interlocutory skirmishes, and ensure that the protective mechanisms for witnesses and the standardised proof of identity operate as Parliament intended. The apparent complexity of the subclauses is in fact a benefit: once mastered, they provide a clear, judicially endorsed pathway that removes guesswork from evidence preparation in NSW courts.