Evidence Regulations 2022

The regulations introduce or clarify several discrete legal concepts and procedural obligations. The text is short, so each concept is specific and defined by the regulation text.

Section 13BB recording, translation and transcript obligations. Regulation 4(8) defines “section 13BB recording” as a recording made by a police officer that is, or may be, admissible in proceedings for a domestic violence offence under section 13BB of the Act. That definition confines the translation and access rules in regulation 4 to police‑made recordings within the domestic violence evidentiary scheme. Where a statement within such a recording is in a language other than English, the regulation requires translation into English, either in the recording itself or in a transcript made later (reg 4(1)). If a transcript is made it must accompany the recording if the defendant elects to listen to or view the recording before it is admitted, or if the recording is admitted (reg 4(2)). Translation must be attested by an affidavit that the statement was accurately translated into English, and that affidavit must accompany the recording where the recording is admitted (reg 4(3)). The court has an explicit supervisory power to require verification of translations in the manner it directs (reg 4(4)). These provisions combine evidentiary formalities (affidavit, attachment) with an express court oversight power.

Access control and restricted uses. Regulation 4(5) establishes a closed list of permitted purposes for another person to access a section 13BB recording: legitimate purposes of proceedings to which the recording relates, use by a public official for purposes connected with their official functions, or authorisation by the prosecution. The provision carries a maximum penalty of $5,000 for non‑compliance. The regulation further cross references “public official” to section 67G of the Act (reg 4(8)), tying the access exception to an existing statutory definition.

Complainant consent. Regulations 4(6) and 4(7) operationalise what constitutes informed consent to making a recording for the statutory definition at section 13BB(10) of the Act. The police officer must tell the complainant they are recording and that the recording may be used in court (reg 4(6)(a)). The complainant must indicate consent, by words or conduct (reg 4(6)(b)), and the regulations expressly allow that, depending on circumstances, a lack of objection may be sufficient as the required indication (reg 4(7)). The provision sets a minimum communication and response regime for the police when creating recordings that may be used as evidence.

Identity parade AV recording standards and retention. Regulation 5(1) lists steps required for an audio visual record of an identity parade to meet the requirement in section 34AB(2)(a)(i) of the Act. The AV record must show the witness at all relevant times, show any person or image the witness singles out at the time of the identification, and capture everything said by the witness and any other person present (reg 5(1)(a)-(c)). Regulation 5(2) prescribes retention periods the Commissioner of Police must observe. Retention is until the person is discharged, or until appeal periods or appeals are finally determined where there is conviction or acquittal, or until the end of the period within which the person can be charged where no charge has been laid (reg 5(2)(a)-(c)). The text sets retention triggers tied to procedural outcomes rather than fixed temporal durations.

Prescribed courts for Part 6C. Regulation 6 designates three named courts and tribunals as “South Australian courts” for Part 6C of the Act, per the cross‑reference to the Act’s definition in section 59IA. The concept is jurisdictional: it expands the list of bodies treated as South Australian courts for that Part.

Fee timing and proration. Regulation 7 prescribes timing for payment of the fee under section 69A and a proration method for shorter terms. The fee for the next financial year must be paid no later than 1 June (reg 7(1)). If the fee covers less than 12 months, it is a proportion of the relevant fee calculated by the number of whole months in the term divided by 12 (reg 7(2)). The proration method uses whole months as the unit for proportional calculation.

Repeal of earlier regulations. Schedule 1 repeals the Evidence Regulations 2007, replacing the prior subordinate instrument with this instrument.

Cross references and limits. Each of these concepts is implemented by reference to particular provisions of the Evidence Act: section 13BB for domestic violence recordings, section 34AB for identity parade AV records, section 67G for the meaning of public official, section 59IA and Part 6C for the court designations, and section 69A for the media representative fee. The regulations do not themselves amend the Act, but they operationalise specific evidentiary and administrative requirements tied to those statutory sections.

The regulations affect a limited set of actors directly, and produce secondary compliance or administrative consequences for related agencies and participants. The statute names the categories; the practical impacts follow from the duties.

Police officers and police agencies. Regulation 4 concerns recordings made by police under section 13BB, so police officers making interviews or recordings with complainants in domestic violence cases will be subject to the communication and consent rules at regulations 4(6)-(7). The Commissioner of Police has an express retention duty for identity parade AV records in regulation 5(2), so police agencies must manage storage, indexing and retention triggers for those AV files.

Complainants and defendants in domestic violence proceedings. Complainants are directly affected by the informed consent rules in regulation 4(6)-(7). The regulation defines what the police must tell the complainant and the form of indication required. Defendants are affected by the translation and transcript requirements in regulation 4(1)-(3), and by the right in regulation 4(2)(a) to elect to listen to or view a recording before it is admitted, in which event a transcript must accompany the recording.

Translators and interpreters. Regulation 4(1)-(3) requires translation into English of any non‑English statements in a section 13BB recording, and requires the translator to state in an affidavit that the translation was accurate. Translators will therefore be called upon to provide affidavits and may be exposed to verification orders under regulation 4(4).

Prosecution and defence legal practitioners. Prosecutors control whether access may be authorised under regulation 4(5)(c). They will also handle the logistics of producing translations, attaching affidavits, and ensuring material is available if a defendant elects to view a recording. Defence practitioners may invoke regulation 4(2)(a) to inspect recordings and rely on the transcript and affidavit material in cross‑examination or evidentiary applications.

Judges and courts. The court is given an express power to require verification of translations in a manner the court directs (reg 4(4)), and courts will adjudicate disputes about access and admissibility where translations, consent and chain of custody are at issue.

Witnesses and persons shown at identity parades. Regulation 5(1) creates rules for AV capture that influence how witnesses and persons in parades are recorded. Persons who participate in parades or whose images are used must be visible at relevant times according to the recording rules, which will affect how parades are staged and filmed.

Commissioner of Police. Regulation 5 places retention duties on the Commissioner of Police for identity parade AV material, generating an obligation to retain records until particular procedural triggers, and thus imposing a record management responsibility on the office (reg 5(2)).

Authorised news media representatives. Regulation 7 sets a payment schedule and proration rule for the fee under section 69A. Media representatives who seek authorisation under the Act must pay the fee by 1 June for the next financial year and must reckon proration by whole months where the term is shorter than 12 months.

Other public officials. The regulations allow access by a “public official” for official functions, cross referenced to the Act’s section 67G meaning (reg 4(5)(b), (8)). Any person whose role fits that statutory definition will be able to access a section 13BB recording for official purposes without prosecution authorisation.

Custodians of recordings and third parties. A person who has possession of, or access to, a section 13BB recording , this will include police, forensic units, transcribers, and potentially court registries , faces a prohibition on unauthorised access subject to a monetary penalty (reg 4(5)). That prohibition places a compliance obligation on anyone in the chain of custody.

Bodies defined as South Australian courts for Part 6C. The Environment, Resources and Development Court, the South Australian Employment Tribunal, and the Youth Court of South Australia are included as South Australian courts for the purposes of Part 6C (reg 6). Parties and practitioners appearing in those forums will therefore be affected by the operation of Part 6C as applied to those bodies.

Organisational impacts and delegation. The regulations allocate duties among the police, prosecution, courts and media representatives. They require processes and documentation , translation attachments, translators’ affidavits, consent confirmations, retention logs, and fee payment records , which in practice will require administrative arrangements within organisations responsible for the relevant functions.

The regulations specify discrete duties, conditional rights and a small set of prosecution and court powers. Each duty or right is tied to a regulation.

Duties on police making section 13BB recordings. When a police officer makes a recording that is, or may be, admissible under the Act’s section 13BB, any statement in a language other than English must be translated into English, either during the recording or later in a transcript (reg 4(1)). The police officer must tell the complainant that they are recording and that the recording may be used in court before the recording is made, so that the complainant can indicate consent (reg 4(6)(a)). The complainant must indicate consent by words or conduct (reg 4(6)(b)), and regulation 4(7) clarifies that lack of objection may, depending on circumstances, be a sufficient indication.

Translator affidavit and accompaniment duties. If a transcript is made, it must accompany the recording if the defendant elects to listen or view the recording before it is admitted, and it must accompany the recording when the recording is admitted into evidence (reg 4(2)). A person who translates a statement must state in an affidavit that the translation was accurate (reg 4(3)(a)), and the affidavit must accompany the recording when it is admitted into evidence (reg 4(3)(b)). The court may require additional verification of translations in a manner it directs (reg 4(4)).

Access restrictions and custodial duties. A person who has possession of, or access to, a section 13BB recording must not allow access by another person except for three authorised categories: legitimate purposes of the proceedings to which the recording relates, use by a public official for official functions, or as authorised by the prosecution (reg 4(5)(a)-(c)). The prohibition carries a maximum penalty of $5,000.

Duties on the Commissioner of Police for identity parade records. The Commissioner must keep an AV record of an identity parade until one of the specified events occurs, depending on whether the person was charged and discharged, convicted or acquitted and appeal status, or not charged but still within the period in which the person can be charged (reg 5(2)(a)-(c)). The regulation provides the trigger events that terminate the retention obligation.

Recording standards for identity parades. Reasonable steps must be taken in making an AV record of an identity parade to ensure the witness is visible at all relevant times, that any person or image the witness indicates is visible at the time of the indication, and that everything said by the witness and any other person present during the parade is recorded (reg 5(1)(a)-(c)). Those are operational minimums for AV capture.

Fee payment duties for authorised media representatives. The fee prescribed under section 69A must be paid not later than 1 June each year for the next financial year (reg 7(1)). If the fee is paid for a term of less than 12 months, the payable fee is a proportion based on the number of whole months in the term divided by 12 (reg 7(2)).

Rights and decision points. The defendant has an express right to elect to listen to or view a section 13BB recording before it is admitted, with the effect that a transcript must accompany the recording in that circumstance (reg 4(2)(a)). The court has a power to require further verification of translations in the manner it directs (reg 4(4)). The prosecution retains the discretionary ability to authorise access to a section 13BB recording under reg 4(5)(c). The regulations also confer a procedural entitlement on complainants: the right to be told the recording is being made and that it may be used in court, before indicating consent (reg 4(6)(a)).

Enforceable sanctions. The only express statutory sanction in these regulations is the maximum $5,000 penalty for permitting unauthorised access to a section 13BB recording (reg 4(5)). Other duties in the regulations are framed as requirements without an express specified penalty in the instrument.

Delegation, discretion and court supervision. Several provisions create supervisory or discretionary points rather than detailed mandatory mechanics. Regulation 4(4) leaves verification procedures to court direction, and regulation 4(5)(c) leaves prosecution authorisation as an access gateway. Regulation 5(1) requires reasonable steps to be taken for AV capture but does not prescribe specific camera setups or technologies, leaving operational implementation to the agency subject to the “reasonable steps” standard.

Documentation obligations. Translators must swear affidavits of accuracy (reg 4(3)(a)), transcripts and affidavits must accompany recordings in specified circumstances (reg 4(2)-(3)), and police must record and act on complainant consent communications (reg 4(6)). These are concrete documentation duties that create evidentiary and administrative workflows.

The regulations include a limited set of enforcement mechanisms and one explicit monetary penalty. They also create procedural hooks that will be enforced through court processes and administrative compliance rather than by an extensive new enforcement scheme.

Monetary penalty for unauthorised access. Regulation 4(5) includes a standalone penal sanction. A person who has possession of, or access to, a section 13BB recording must not allow access to the recording by another person except for the three listed exceptions. The regulation concludes with “Maximum penalty: $5 000.” The text therefore criminalises or otherwise penalises unauthorised disclosure of section 13BB recordings up to that monetary cap. The instrument does not specify whether the penalty is criminal, regulatory or administrative in label, but it is expressed as a maximum penalty amount attached to the prohibition.

Court supervisory powers as an enforcement mechanism. Regulation 4(4) gives the court power to require verification of translations in such manner as the court may direct. That provision places the court in an enforcement and gatekeeping role for translation accuracy, and allows the court to impose verification steps which could affect admissibility and weight of evidence. Disputes about compliance with the affidavit and transcript rules will be litigated before the court and resolved by judicial direction under this provision.

Prosecution authorisation for access. Regulation 4(5)(c) permits access if authorised by the prosecution. This is an administrative gatekeeping mechanism that the prosecution can exercise in practice. Enforcement here is chiefly internal to prosecutorial discretion and the court’s oversight when questions arise.

Retention requirements and practical compliance. Regulation 5(2) imposes retention obligations on the Commissioner of Police for identity parade AV records. Failure to comply with retention duties may lead to evidentiary consequences in proceedings and potential administrative or internal disciplinary consequences for police agencies, but the regulations do not attach a specific monetary penalty in the text for retention failures.

No penalty specified for other breaches. The regulations require translation, affidavit, attachment and consent communications, but aside from the unauthorised access penalty the instrument does not specify penalties for failure to translate, to attach a transcript, to secure an affidavit, or for non‑compliance with the consent protocol. Non‑compliance will therefore be addressed by courts in the context of admissibility or weight of evidence, or by internal agency processes, rather than by a specified fine within these regulations.

Fee payment enforcement. Regulation 7 prescribes timing and proration rules for the section 69A fee for authorised media representatives. The text does not set an explicit penalty for non‑payment. Enforcement will therefore depend on the underlying Act’s regime at section 69A or administrative mechanisms operated by the court or registry for authorisation, rather than an express regulatory penalty in this instrument.

Scope of prosecutorial and judicial enforcement. Several enforcement points are internal or procedural: the prosecution may authorise access, the court may require verification, and the Commissioner is subject to retention duties. The instrument therefore relies principally on judicial supervision, prosecutorial discretion and administrative recordkeeping obligations to effect compliance, with the $5,000 cap as the only explicit civil or criminal penalty contained in the regulations themselves.

The regulations operate by reference to specific sections of the Evidence Act 1929 and should be read as subordinate provisions that specify procedural detail for the operation of the Act. The instrument does not amend the Act, but it cross‑references several of the Act’s sections and Part 6C, thereby filling out the Act’s implementation.

Section 13BB and domestic violence recorded evidence. The regulations define and regulate “section 13BB recording” (reg 4(8)) and impose translation, transcript and access procedures for recordings made by police that are, or may be, admissible under section 13BB of the Act (reg 4(1)-(5)). The regulations therefore provide operational rules for how recordings under the Act’s domestic violence evidentiary pathway are to be translated, verified, and disclosed, but they do not change the admissibility rules in the Act itself. The regulations also operationalise the process for obtaining informed consent to recordings for the definition in section 13BB(10) by specifying what police must tell complainants and the form of indication of consent (reg 4(6)-(7)).

Section 34AB and identity parade recordings. Regulation 5 expressly cites section 34AB(2)(a)(i) of the Act as the provision for which the AV record standard is being specified. The regulations therefore provide minimum recording standards and retention rules for identity parade AV records that are relevant to the evidence considerations under section 34AB of the Act, without altering the section 34AB statutory text. The retention triggers are tied to charging, discharge, conviction/acquittal, and appeal windows under the criminal process.

Section 67G and public officials. The regulations refer to “public official” having the same meaning as in section 67G of the Act (reg 4(8)), thereby importing that statutory definition to delimit who may access a section 13BB recording for official functions under regulation 4(5)(b). The definition in the Act will therefore be determinative of the scope of the public official exception.

Part 6C and prescribed South Australian courts. Regulation 6 relies on the Act’s definition of “South Australian court” in section 59IA and declares three named courts and tribunals as South Australian courts for the purposes of Part 6C. This is a direct cross‑application: the regulation expands the list of bodies to which Part 6C applies by naming them in the subordinate instrument.

Section 69A and media representative fees. Regulation 7 prescribes the payment timing and proration method for the fee that the Act contemplates at section 69A for an authorised news media representative. The regulation therefore supplements the Act’s fee mechanism by fixing the payment deadline and a method for prorating fees for shorter terms. The regulation does not set the fee quantum, which is “the fee prescribed for the purposes of section 69A,” implying the fee amount must be prescribed or established under the Act or another regulation.

Repeal of previous subordinate law. Schedule 1 repeals the Evidence Regulations 2007, so the 2022 regulations replace that earlier subordinate instrument. The repeal interacts with any transitional or savings provisions that may exist elsewhere, but nothing in these regulations sets transitional rules. Practitioners will need to be aware that the prior regulatory regime is removed by Schedule 1, and that the 2022 regulations supply the operative subordinate rules referenced above.

Administrative and evidentiary interplay. Several provisions create administration‑to‑evidence linkages: transcripts and affidavits must accompany recordings when admitted (reg 4(2)-(3)), the court can order verification (reg 4(4)), and retention periods for identity parade AV records are keyed to charge and appeal events (reg 5(2)). These are procedural mechanics that integrate recordkeeping and judicial review under the Evidence Act framework.

Limits of the regulations. The regulations’ coverage is narrowly framed by references to specified sections of the Act. For example, the translation and access rules apply only to recordings by police that are, or may be, admissible under section 13BB, not to all recorded evidence. The regulation also imports statutory definitions from the Act rather than redefining those terms, so understanding the full scope of several provisions requires reading the Act’s sections cited by the regulations.

The instrument contains a concise amendment and commencement history. Key points from the regulations themselves follow.

Commencement. Regulation 2 states that the Evidence Regulations 2022 come into operation on 1 September 2022. The legislative history at the end of the instrument records the Gazette notice: Principal regulations 2022 No 57, Gazette 28.7.2022 p2376, with commencement noted as 1.9.2022 under regulation 2. That locates the operational start date.

Repeal of prior subordinate instrument. Schedule 1 of the regulations repeals the Evidence Regulations 2007. The schedule is a single action: the 2007 regulations are repealed, and the 2022 regulations take their place as the operative subordinate law under the Evidence Act. The regulations do not themselves include transitional or savings provisions; the repeal is expressed in Schedule 1 without further elaboration in the current text.

No internal amendments within the instrument. The regulations do not record any prior amendments to the 2022 text itself within the instrument, and they do not contain retrospective amendments or modification clauses. The instrument as published is self‑contained with the commencement and repeal steps described above.

Legislative metadata. The final lines of the instrument carry the standard notes: for further information see the Index of South Australian Statutes or the legislation website, and the Principal regulations metadata reference the Gazette and commencement date. The instrument does not include an explanatory memorandum or second reading speech text within the published regulation text, nor does it list subordinate amendment entries beyond the repeal of the 2007 regulations.

Practical consequence of repeal. The repeal in Schedule 1 means that any procedure or administrative practice that relied on the 2007 regulations must be reviewed against the 2022 regulations to check for changes to requirements, in particular for translations, access restrictions, identity parade recording standards and retention, court lists for Part 6C, and media fee timing. The regulations themselves are short and explicit about what is required from 1 September 2022.

The text of the Evidence Regulations 2022 contains no case citations and records no litigation history. The instrument does not name any judicial decisions, nor does it include references to prior litigation that led to enactment. There are therefore no cases referenced in the regulations themselves.

Although the regulations record no litigation to date, their operative provisions create predictable loci for evidentiary litigation and contested applications in criminal and related proceedings. The text anticipates judicial involvement in several ways, and these are the points at which litigation or contested judicial applications are most likely to arise.

Translation accuracy and verification disputes. Regulation 4(3) requires the translator to swear an affidavit that a statement was accurately translated, and regulation 4(4) empowers the court to require translation verification in the manner the court directs. These provisions create a procedural pathway for disputes about the accuracy of translations to be litigated before the court. An accused or a prosecutor could seek directions under regulation 4(4) about the form of verification, or challenge the sufficiency of the affidavit or transcript attached under regulation 4(2)-(3).

Consent and the adequacy of police warnings. Regulations 4(6)-(7) prescribe what constitutes informed consent for the definition in section 13BB(10) of the Act: the police must tell the complainant the officer is recording and that the recording may be used in court, and the complainant must indicate consent. Whether a particular communication constitutes sufficient notice, and whether a particular act or lack of objection constitutes the required indication of consent, are facts likely to generate contested rulings. The regulation’s allowance that lack of objection may, in the circumstances, suffice, creates a factual threshold for litigation where the parties dispute the complainant’s state of mind or the adequacy of police conduct.

Access and unauthorised disclosure. Regulation 4(5) prohibits allowing access to section 13BB recordings except for authorised purposes and prescribes a maximum penalty of $5,000. Enforcement actions or interlocutory applications about unauthorised disclosure, or challenges to whether a particular third party’s access was within an exception (for example, whether a person is a “public official” as defined in the Act), will be likely grounds for litigation.

Admissibility and compliance with transcript and affidavit requirements. Regulation 4(2) requires a transcript to accompany a recording in certain circumstances, and regulation 4(3) requires affidavits of accuracy. Failure to produce the transcript or affidavit may lead to admissibility challenges, voir dire hearings or other contested applications on the record’s availability and reliability.

Retention of identity parade records. Regulation 5(2) binds the Commissioner of Police to retain AV identity parade records until specified procedural triggers. Disputes can be expected where records are lost, destroyed, or the retention timeline is contested , for example, questions about whether an appeal has lapsed or been finally determined, or whether the “period within which the person can be charged” has expired. Such retention failures will likely prompt contested applications about admissibility or searching for alternative evidence.

Media fee disputes. Regulation 7 sets payment timing and proration rules for the fee under section 69A. Disputes about authorisation for media representatives and whether the fee has been paid properly or prorated correctly could lead to administrative appeals or contested applications in court or tribunal registries, but the regulations do not themselves set out a dispute resolution process for fee non‑payment.

In short, while the regulations do not record any litigation history, they create multiple operational rules that will give rise to contested judicial or administrative questions about translation adequacy, consent sufficiency, access authorisation, retention obligations, and procedural compliance. The court’s direction power in regulation 4(4) and the retention triggers in regulation 5(2) are explicit procedural mechanisms where parties may seek orders or relief, and those are natural loci for litigation.

The regulations are short and precise, but several practical pitfalls arise because the instrument links evidentiary admissibility to operational steps. These are points where procedural mistakes can have material evidentiary consequences.

Scope limitation for translation duties. The translation, transcript and access obligations in regulation 4 apply only to a “section 13BB recording,” defined as a recording made by a police officer that is, or may be, admissible under section 13BB (reg 4(8)). Practitioners and agencies who generalise the obligation to every recorded interview or private recording risk error. Check whether a recording is in scope as a section 13BB recording before applying the translation and affidavit requirements.

Transcript attachment triggers. A transcript must accompany the recording if the defendant elects to listen to or view it before admission, or if the recording is admitted (reg 4(2)). A failure to attach the transcript at the right time can be a decisive procedural deficiency. Defence counsel who elect to view a recording without a transcript attached may delay or disrupt proceedings, and prosecutors who fail to produce an accompanying transcript at admission risk evidentiary objections.

Affidavit formalities. The translator must state, in affidavit form, that the statement was accurately translated (reg 4(3)(a)), and where the recording is admitted the affidavit must accompany it (reg 4(3)(b)). Omitting the affidavit or producing an inadequate statement risks challenges to the translation’s reliability. The affidavit requirement is not satisfied by a bare statement; it must be in affidavit form.

Court verification is unscripted. Regulation 4(4) allows the court to require verification “in such manner as the court may direct.” That open‑ended phrasing means courts can require additional certification, sworn testimony, comparison by an accredited interpreter, or other steps. Parties should anticipate potential judicial directions rather than assuming the translator affidavit will be definitive.

Access prohibition and its monetary cap. Regulation 4(5) establishes a prohibition on allowing access to a section 13BB recording except in narrow categories and attaches a $5,000 maximum penalty. Practitioners should not assume that an informal disclosure to a third party is harmless. In addition, the $5,000 cap is the only monetary penalty specified; other consequences for unauthorised disclosure (for example, evidentiary prejudice or professional discipline) may follow but are not prescribed here.

Consent by silence. Regulation 4(7) allows lack of objection, in the circumstances, to constitute a sufficient indication of consent (reg 4(7)). This creates a risk that police conduct that fails to secure an express verbal approval may nonetheless be sufficient, depending on the facts. Police should aim for clear recorded indications of consent to avoid later disputes about whether silence amounted to consent.

“Reasonable steps” for identity parade AVs is ambiguous. Regulation 5(1) requires “reasonable steps” to ensure witness visibility, suspect/image visibility at the time of identification, and capture of what is said by all present. The regulation does not prescribe technical standards or camera placements. What is “reasonable” may vary by venue, so agencies should document their practices. Failure to record a crucial moment because the camera framing was inadequate may give rise to contested admissibility or reliability issues.

Retention triggers require calendaring and case management. Regulation 5(2) ties retention to event‑driven triggers: discharge date, appeal windows, final disposal of appeals, or the end of the period within which a person can be charged. These are not fixed time periods; they require active case management to determine when the retention obligation ends. Failing to retain an AV identity parade until the required trigger can lead to evidentiary disputes.

Proration counts whole months only. Regulation 7(2) prorates a media fee by the number of whole months in the term divided by 12. Partial months are disregarded, which can be surprising. Media representatives paying for short terms should check how the proration is calculated to avoid unexpected shortfalls.

No penalties specified for key procedural failures. Outside of the $5,000 penalty for unauthorised access, the regulations do not specify consequences for failure to translate, failing to provide a transcript, or failing to secure an affidavit. The principal “sanctions” for such failures will be evidentiary: courts may exclude or discount evidence, or require remediation. Practitioners should not assume there is no practical consequence if the regulations do not prescribe a fine.

Cross‑referenced definitions not included here. The regulation refers to “public official” as defined in section 67G of the Act and to several Act sections. Users must consult the Act to determine the scope of those terms. Assuming an ordinary meaning for “public official” without checking section 67G could lead to incorrect access decisions.

Replaced regulations. The Evidence Regulations 2007 are repealed by Schedule 1. If an organisation relies on recordkeeping or operational rules from the 2007 regulations, it needs to review whether those practices remain compliant under the 2022 regulations.

This section sets out pragmatic, source‑grounded steps organisations and practitioners should follow to meet the regulations’ requirements. Each step is tied to the relevant regulation.

Checklist for police officers making section 13BB recordings (reg 4):

• Before recording, advise the complainant that the officer is recording and that the recording may be used in court (reg 4(6)(a)). Record that advisory on the recording itself where practicable so there is contemporaneous evidence of the warning.
• Obtain an explicit or clearly observable indication of consent from the complainant, by words or conduct (reg 4(6)(b)). If the complainant does not object and the circumstances justify treating silence as consent, document the circumstances and the lack of objection (reg 4(7)).
• If any statement in the recording is in a language other than English, arrange for translation into English either during the recording or later in a transcript (reg 4(1)). Where feasible, record the translation contemporaneously to avoid later verification needs.
• If a transcript is prepared, ensure it accompanies the recording whenever the defendant elects to listen to or view the recording prior to admission, and ensure the transcript accompanies the recording when admitted into evidence (reg 4(2)).
• Engage a qualified translator and obtain an affidavit from that person stating that the translation was accurate (reg 4(3)(a)). Retain that affidavit and attach it to the recording if the recording is admitted (reg 4(3)(b)).
• Preserve the chain of custody and control access to the recording, restricting access except for the authorised purposes listed in reg 4(5)(a)-(c). Maintain an access log showing who has handled or viewed the recording and the legal basis for each access.
• Be prepared for the court to require further verification of translations; retain contact details for translators and supporting documentation in case the court directs additional verification steps (reg 4(4)).

Checklist for custodians and agencies (reg 4 and reg 5):

• Identify every file that qualifies as a “section 13BB recording” (reg 4(8)). Flag those files in your records management system to apply the special access and attachment rules in regulation 4.
• Implement access controls and logging for section 13BB recordings. Ensure only authorised personnel, public officials with functions that bring them within the Act’s section 67G definition, or those specifically authorised by the prosecution can access the recording (reg 4(5)). Create a standard authorisation form for prosecution approvals.
• For identity parade AV records, ensure camera operators and recording staff are trained to take the “reasonable steps” necessary under reg 5(1). Document standard operating procedures that show how witness visibility, suspect/image visibility, and capture of all spoken words are achieved in the typical physical spaces used for parades.
• For retention of identity parade AV records, set up calendaring and case management triggers tied to the events listed in reg 5(2). Record retention should not be governed by a simple fixed-term deletion schedule; instead, map retention termination to: discharge dates, the end of appeal periods if no appeal lodged, final determination or lapse of any lodged appeals, or the end of the charging period if no charge was laid (reg 5(2)(a)-(c)). Maintain a retention log marking when the retention obligation ends.
• Document decision points concerning whether the person has been charged, discharged, convicted or acquitted, and whether an appeal has been lodged, in order to apply the correct retention trigger.

Checklist for translators and legal practitioners:

• Translators who prepare transcripts must be instructed that an affidavit of accuracy will be required (reg 4(3)(a)). Ensure translators can produce a sworn affidavit and can be available for further verification if the court requires it (reg 4(4)).
• Defence and prosecution lawyers should ensure transcripts and translator affidavits are included in disclosure bundles when a recording is admitted or when a defendant elects to view the recording (reg 4(2)-(3)). Create a disclosure checklist that includes the transcript and affidavit.

Checklist for authorised news media representatives (reg 7):

• Pay the fee required under section 69A no later than 1 June each year for the next financial year (reg 7(1)). Obtain and keep a receipt showing the payment date and coverage period.
• If payment covers less than 12 months, calculate the fee using whole months only, counting the number of whole months in the term divided by 12 and applying that proportion to the relevant fee (reg 7(2)). Be cautious about partial months; the proration rule uses whole months only.

Court practitioners and registry:

• When submitting a section 13BB recording for admission, attach any transcript and the translator’s affidavit as required by reg 4(2)-(3). Be prepared to respond to a court direction under reg 4(4) for further verification steps.
• For identity parade materials, provide the court with documentation of the recording process and retention history where relevant to admissibility or reliability questions.

Documentation templates and recordkeeping:

• Create a standard consent script to be recorded at the start of a section 13BB recording, covering the two required components in reg 4(6)(a): that the officer is recording and that the recording may be used in court. Log the complainant’s response.
• Create a template translator affidavit that states that the translator has accurately translated the relevant statement into English and identifies the recording and transcript it relates to, so that when a recording is admitted the affidavit can be attached immediately (reg 4(3)).
• Implement an access authorisation form for use by prosecution when authorising access under reg 4(5)(c), and an access log that records who accessed a recording, when, and on what legal basis.

Audit and training:

• Provide training for police officers, recording staff and records managers on the new requirements, emphasising that translation and transcript obligations are limited to section 13BB recordings, and that identity parade AV recordings must meet the visibility and audio capture standards (reg 4 and reg 5).
• Audit compliance periodically to ensure that retention triggers for identity parade records are being followed, that consent warnings are being delivered and recorded, and that translator affidavits are obtained where required.

By following these regulatory steps and implementing clear documentation, recordkeeping and training, agencies and practitioners can meet the obligations in the Evidence Regulations 2022 and reduce the risk of admissibility disputes, unauthorised access breaches and retention failures.