Foreign Evidence (Foreign Material—Criminal and Related Civil Proceedings) Regulations 2018

The Regulations work as a mapping exercise between the Foreign Evidence Act 1994 and domestic jurisdictions and domestic statutory regimes. The key statutory hooks in the Act that the Regulations engage are subsection 20(2) and paragraph 20(2)(b) and 20(2)(d). The Act itself provides the machinery for admitting or using foreign material in Australian criminal proceedings and certain civil proceedings related to those criminal matters; the Regulations determine the scope of that machinery across States and Territories and identify the civil proceedings that count as “related”.

Three linked concepts recur in the text.

1. Specification of jurisdictions. Regulation 6(1) explicitly lists nine jurisdictions: New South Wales, Victoria, Queensland, Western Australia, South Australia, Tasmania, Australian Capital Territory, Northern Territory, and Norfolk Island. The Regulations therefore make clear which courts of a State or Territory are within the scope of Part 3 of the Act for the purposes of subsection 20(2). The effect is to remove uncertainty about territorial application of the Act’s Part 3 provision to courts sitting in those jurisdictions.

2. Definition of “related civil proceedings”. Schedule 1 furnishes the substantive content of paragraph 20(2)(b) of the Act by cataloguing, for each State and Territory, the kinds of civil proceedings that are “related” to criminal proceedings. Although the Act contains the statutory definition cross‑reference (the text notes see subsection 3(1) of the Act), the Regulations supply concrete examples and classes: confiscation/confiscatory regimes, victims compensation statutes, drug legislation, recovery of taxes/duties/levies, and proceedings for recovery of compensation related to an offence. These categories expand the universe of non‑criminal proceedings in which foreign material may be used under the Act.

3. Correspondence to “proceeds of crime law” for Territories. Regulation 6(3) prescribes which Territory laws are to be treated as corresponding to a “proceeds of crime law” for the purposes of paragraph 20(2)(d). The mapping is explicit: column 1 identifies a Territory and column 2 names an Act and the jurisdictional instrument (for example Confiscation of Criminal Assets Act 2003 (ACT) as in force in the Australian Antarctic Territory). The drafting includes text such as “as in force in the [Territory]”, which ties the correspondence to the territorial application of the specified State or Territory law as it is in force in that external Territory.

These conceptual moves perform classification and cross‑reference functions. They do not by themselves alter substantive evidentiary rules in the Act, but they change the set of proceedings and laws that activate the Act’s Part 3 processes. Practically, lawyers and agencies will use the Regulations to determine whether an application under Part 3 of the Foreign Evidence Act is available in a given case, and which domestic statutory regimes qualify as the civil counterpart to criminal confiscation or recovery proceedings.

The Regulations also contain an application clause in regulation 7 that applies amendments made by a named amending instrument to proceedings regardless of whether they commenced before, on, or after the commencement of that section. That clause adjusts temporal operation and has direct consequences for proceedings already underway at the time of the amendments.

Finally, the Regulations are narrow in scope: they are largely declaratory and do not provide procedural forms, evidentiary standards, or enforcement sanctions. Their value is therefore procedural clarity about coverage of the Foreign Evidence Act 1994 across Australian jurisdictions and the kinds of civil proceedings that are incorporated into the Act’s scope.

The Regulations affect three broad groups: courts, parties to criminal and specified civil proceedings, and government authorities that initiate or respond to proceedings listed in Schedule 1 or that operate in the Territories listed in regulation 6(3). The instrument’s effects are administrative and definitional rather than substantive penal or procedural in themselves, but they control when and where the Act’s foreign‑material mechanisms can be invoked.

Courts and judges in the listed jurisdictions (regulation 6(1)) are affected because the Regulations spell out that Part 3 of the Act applies in proceedings in courts of those States and Territories for the purposes of the Act’s subsection 20(2). If a party applies under Part 3 of the Act to use foreign material, a court in one of the named jurisdictions will assess the application in light of the Act and the classification in these Regulations. The instrument therefore modifies the landscape of admissible foreign material by jurisdictional specification.

Prosecutors, enforcement agencies, revenue authorities, and agencies that conduct confiscation or recovery proceedings are directly affected. Schedule 1 lists specific classes of civil proceedings that count as “related civil proceedings” for each jurisdiction, including confiscation statutes, criminal assets or proceeds of crime statutes, tax recovery proceedings, victims compensation claims, and drug law proceedings. Those enforcement bodies will be able to rely on the Act’s Part 3 foreign‑material processes in the listed civil proceedings because the Regulations have categorised those proceedings as related. As an example, a tax recovery proceeding to recover duties payable to Victoria is explicitly included in the related civil proceedings for Victoria (Schedule 1, item 2(c)).

Defendants, civil respondents, and litigants are affected because the Regulations broaden the contexts in which foreign material may be used against them. The specified related civil proceedings include proceedings that can have financial consequences, such as confiscation or tax recovery. Where foreign material is used under the Act, the evidentiary basis for claims in those civil proceedings may depend on foreign documents or testimony, and the Regulations determine which civil causes are eligible for such use.

Legal practitioners , defence counsel, civil litigators, in‑house counsel and external advisers , must take the Regulations into account when deciding whether to seek foreign material under the Act. The note in regulation 6(2) points back to the Act’s definition of “related civil proceeding” (see subsection 3(1) of the Act), so practitioners must reconcile the Act’s definition with the concrete lists in Schedule 1.

Finally, administrators and legal officers in Territories mapped in regulation 6(3) should be attentive because the Regulations prescribe which State laws operate as corresponding proceeds of crime laws within those Territories, for purposes of paragraph 20(2)(d) of the Act. This shapes cross‑jurisdictional cooperation and the application of the Act’s procedures in non‑mainland Territories where State or Territory laws are applied “as in force” in that Territory.

Who pays and who decides. The Regulations do not create a direct monetary charge, fines, or fees. The immediate decision‑makers are courts of the listed States and Territories when applications under Part 3 of the Act are presented. The parties involved bear the operational costs of preparing applications and adducing foreign material; agencies prosecuting confiscation, tax or compensation actions will be the principal organisations initiating the use of the Act’s mechanisms in the listed civil proceedings.

The Regulations are primarily classificatory; they impose no direct new duties in the sense of operational obligations or procedural steps to be performed. Instead, they define the circumstances in which existing duties and rights under the Foreign Evidence Act 1994 attach. To understand the operational effect, practitioners must read the Regulations together with the Act.

Rights created or clarified by the Regulations

• Right to seek use of foreign material under Part 3 of the Act: By specifying the jurisdictions (regulation 6(1)) and the classes of related civil proceedings (regulation 6(2) and Schedule 1), the Regulations confirm in which courts and in respect of which proceedings parties can invoke Part 3 of the Act to admit or use foreign material. This right is not newly created by the Regulations; it is an application of the Act made administrable by the classifications.

• Right to treat specified Territory laws as corresponding to a proceeds of crime law: Regulation 6(3) prescribes that particular Territory laws are to be treated as the relevant “proceeds of crime law” for paragraph 20(2)(d) of the Act. That produces legal certainty for parties and courts about which domestic statutory regime counts for the Act’s purposes.

Duties clarified (implicit, via Act)

• Duty to identify the nature of the proceeding: Legal representatives will need to determine whether a proceeding falls within the classes listed in Schedule 1 to know whether the Act applies. That is a practical duty incumbent on practitioners seeking to rely on Part 3.

• Duty to consider territorial application of legislation: Where a Territory is identified in regulation 6(3), parties must check the version of the listed State law “as in force in the Territory”, because the mapping depends on the law as applied within that Territory.

• Duty to apply transitional rules where relevant: Regulation 7 provides that amendments made by a named amending instrument apply to proceedings that commenced before, on or after commencement. Parties and courts must therefore apply amended classifications even in earlier‑commenced proceedings where the amendments are the ones referred to in regulation 7.

No procedural steps or forms are prescribed by the Regulations themselves. Any procedural duties about how to apply for or admit foreign material under Part 3 remain those set out in the Act. The note in the Regulations points to subsection 3(1) of the Act for the definition of “related civil proceeding”, signalling that application of the Act’s substantive tests and procedures remains necessary.

Who decides

• Courts decide admissibility and use of foreign material under the Act and must do so informed by the jurisdictional and category specifications in these Regulations. In contested proceedings the judicial officer will apply the Act’s requirements (not set out in the Regulations) and use the Regulations as a classification source.

• Parties decide whether to seek foreign material under Part 3 or to invoke the correspondence of a Territory law to a proceeds of crime law. Defence counsel decide whether to challenge such applications on jurisdictional or classification grounds.

Costs and incentives

• The Regulations reduce uncertainty about whether Part 3 is available in particular proceedings. That lowers transaction costs for parties contemplating applications under the Act but increases compliance cost in that practitioners must consult Schedule 1 and regulation 6(3) when advising clients.

• For prosecuting agencies, the Regulations expand or clarify the circumstances in which foreign material may be used, which may create an incentive to seek cross‑border evidence in confiscation, recovery and tax matters identified in Schedule 1.

• For defendants, the Regulations increase the potential for foreign material to be used against them in the enumerated civil proceedings, raising the need to resource international defence strategies and cross‑border evidence challenges. The Regulations themselves do not confer a right to challenge evidence on particular grounds; such rights derive from the Act and general evidentiary law.

The text of the Regulations contains no penalty provisions and does not create new offences, fines or enforcement schemes. The instrument is made under the Foreign Evidence Act 1994 (regulation 3), and its operative provisions are classificatory: they specify jurisdictions, specified civil proceeding types, and corresponding Territory laws for the purposes of particular paragraphs of the Act (regulation 6 and Schedule 1). There are therefore four practical points about penalties and enforcement to draw from the Regulations themselves.

1. No direct enforcement mechanism in the Regulations. The Regulations do not prescribe enforcement action or impose sanctions for non‑compliance. They only affect the application of the Act’s Part 3 mechanisms. Any enforcement or penalty consequences arise under the Act or the State/Territory laws that are referenced in Schedule 1 and regulation 6(3). For example, confiscation regimes and tax laws listed in Schedule 1 carry their own enforcement machinery and penalties under their respective Acts.

2. Court enforcement via the Act. Since the Regulations determine the scope of proceedings where Part 3 of the Foreign Evidence Act applies, courts exercising jurisdiction under the Act remain the enforcement point for admissibility of foreign material. If foreign material is obtained or used via the Act’s processes, any procedural non‑compliance or misuse would ordinarily be litigated under the Act’s procedural regime or via the court’s supervisory powers. The Regulations do not change judicial powers to exclude evidence or manage proceedings.

3. Interaction with listed laws that carry penalties. Schedule 1 expressly includes statutory schemes that include penalties , for example, confiscation of proceeds of crime statutes, tax laws, and drug laws. Where foreign material is used in such proceedings under the Act, the substantive penalties that attached to those statutes continue to apply; the Regulations simply confirm that such proceedings are “related civil proceedings” pursuant to paragraph 20(2)(b) of the Act.

4. Transitional application affects ongoing proceedings. Regulation 7 provides that amendments made by a named amending instrument apply to proceedings that commenced before, on or after that commencement. That makes clear that where the amendments altered which proceedings are captured, parties in ongoing proceedings may find foreign‑material mechanisms available to the opposing party. The Regulations therefore have procedural enforcement implications because they change what evidence a court may be asked to admit in proceedings that are already under way.

Practical implications for enforcement practitioners and defence counsel

• Prosecutors and civil enforcement agencies will rely on the Regulations to determine when they can use the Foreign Evidence Act’s mechanisms in recovery, confiscation, tax and victims compensation proceedings. That may make international evidence gathering more feasible in those contexts.

• Defence lawyers should expect that courts may receive applications under Part 3 of the Act in the enumerated civil proceedings and be prepared to address jurisdictional and admissibility issues that arise under the Act and the relevant State/Territory law. Challenges will be litigated under the Act and ordinary evidentiary law; the Regulations themselves do not set exclusionary rules.

In short, enforcement consequences flow from the Act and the substantive statutes listed in Schedule 1, not from the Regulations’ text. The Regulations channel the Act’s reach and therefore indirectly affect which penal outcomes can be supported by foreign material, but they do not create separate regulatory or punitive regimes.

The Regulations operate as an interface between the Foreign Evidence Act 1994 and an array of State and Territory statutes. The instrument expressly references and incorporates State/Territory statutes by naming them in Schedule 1 and by prescribing corresponding Territory laws in regulation 6(3). The Regulations do not stand alone; their legal effect depends on the Act and the listed domestic legislation.

Primary interaction with the Foreign Evidence Act 1994

• The Regulations are made under the Act (regulation 3) and expressly tie into subsection 20(2) of the Act (regulation 6(1)), paragraph 20(2)(b) (regulation 6(2) and Schedule 1), and paragraph 20(2)(d) (regulation 6(3)). The Act supplies the substantive rules for use of foreign material; the Regulations supply jurisdictional and subject‑matter definitions that determine where those rules can be applied.

Interaction with State and Territory statutes listed in Schedule 1

• Schedule 1 lists for each State and Territory the kinds of civil proceedings that are to be treated as “related civil proceedings” under paragraph 20(2)(b) of the Act. The listed statutes include, among others:

  • Confiscation and proceeds of crime statutes (for example, Confiscation of Proceeds of Crime Act 1989 (NSW); Confiscation Act 1997 (Vic); Criminal Proceeds Confiscation Act 2002 (Qld); Criminal Property Confiscation Act 2000 (WA); Criminal Assets Confiscation Act 2005 (SA); Crime (Confiscation of Profits) Act 1993 (Tas); Confiscation of Criminal Assets Act 2003 (ACT); Criminal Property Forfeiture Act 2002 (NT); Criminal Procedure Act 2007 (Norfolk Island)).

  • Victims compensation statutes (for example, Victims Rights and Support Act 2013 (NSW); Victims of Crime Assistance Act 1996 and Criminal Injuries Compensation Acts in some jurisdictions).

  • Drug and misuse of drugs statutes in several jurisdictions included as examples of related proceedings (for example Drugs Misuse Act 1986 (Qld); Misuse of Drugs Act 1981 (WA); Drugs of Dependence Act 1989 (ACT)).

  • Tax and revenue recovery proceedings are listed across jurisdictions (for example, recovery of tax, duty, levy or charge payable to the State is included for NSW, Victoria, WA, SA, Queensland and others; ACT mentions a tax law within the meaning of the Taxation Administration Act 1999 (ACT)).

These listings mean that when a party seeks to use foreign material in the prosecution or defence of proceedings under those statutes, the Foreign Evidence Act’s Part 3 processes can be invoked because the Regulations have placed those civil proceedings into the Act’s scope.

Interaction with Territory law mapping (regulation 6(3))

• For several Territories (Australian Antarctic Territory, Coral Sea Islands Territory, Jervis Bay Territory, Territory of Ashmore and Cartier Islands, Territory of Christmas Island, Territory of Cocos (Keeling) Islands, Territory of Heard Island and McDonald Islands), regulation 6(3) prescribes a particular law in column 2 as corresponding to a “proceeds of crime law” for the purposes of paragraph 20(2)(d) of the Act. The phrasing “as in force in the [Territory]” means the mapping depends on how that law is applied to the Territory, and requires practitioners to check the present law as in force in that Territory.

Practical cross‑reference points

• The Regulations instruct users to consult subsection 3(1) of the Act for the definition of “related civil proceeding” (see the Note in regulation 6(2)). That cross‑reference is critical: the Act’s own definitional limits and thresholds remain operative, and the Regulations merely provide jurisdictional examples that fit within the Act’s definition.

• If the listed State/Territory laws are amended, repealed, or their territorial extent altered, the practical effect of the Regulations will change. Some entries expressly note now‑repealed provisions (for example, several items include statutes described as “now repealed” where relevant). These annotations indicate that the schedule lists both current and historically relevant statutes for clarity, but practitioners must verify current statutory status when relying on the mapping.

Limitations of interaction

• The Regulations do not amend or alter the substantive provisions of the listed State/Territory statutes. They do not create new substantive rights under those Acts, nor do they change the penalties or enforcement powers those Acts confer. Their sole function is to specify which civil proceedings and which corresponding Territory laws interact with the Foreign Evidence Act for the particular paragraphs of subsection 20(2).

• The Regulations do not prescribe the mechanics for obtaining foreign material. Those procedures and the conditions for admissibility remain governed by the Act and general rules of evidence and procedure in the relevant jurisdiction.

In summary, the Regulations act as a bridge between a Commonwealth evidentiary mechanism and various State/Territory enforcement and recovery schemes. For practitioners, the key interactional task is to read the Regulations in tandem with the Foreign Evidence Act 1994 and the present versions of any listed State/Territory statutes to determine whether the Act’s Part 3 evidence mechanisms can be deployed in a particular criminal or related civil proceeding.

The Regulations themselves are captioned as the Foreign Evidence (Foreign Material,Criminal and Related Civil Proceedings) Regulations 2018 (regulation 1 provides the name). The only amendment history recorded within the text is the application clause in regulation 7, which refers to amendments made by the Crimes Legislation Amendment (International Crime Cooperation and Other Measures) Regulations 2018. Regulation 7 states that those amendments of this instrument apply in relation to a proceeding that commences before, on or after the commencement of that section.

What this means practically is twofold.

1. Temporal application of amendments. Regulation 7 affirms that the amendments effected by the specified amending instrument are not confined to future proceedings; they extend to proceedings that had already commenced before the amendment’s commencement date. Put plainly, the amendments operate retroactively with respect to commencement timing as specified by regulation 7: they apply to proceedings commenced before, on, or after the commencement. The text does not list the specific amendments effected by those Crimes Legislation Amendment Regulations; it only states that the amendments of the instrument made by that instrument are to be applied to proceedings irrespective of their commencement date.

2. No other amendments recorded within the instrument. Aside from regulation 7, the Regulations contain no internal amendment notes, repeal entries, or schedule indicating prior versions. Regulation 5 defines the Act reference; regulation 3 sets authority; regulation 6 and Schedule 1 constitute the core content. There are no marginal notes indicating previous versions. The instrument thus appears as a consolidated text that incorporates the relevant amendments as at the time of the 2018 instrument.

Implications for practitioners

• When advising clients about the availability of Part 3 of the Foreign Evidence Act in ongoing proceedings, practitioners must take into account that the 2018 amendments (and any subsequent amendments not recorded in this text) may apply even where a proceeding began prior to the amendment’s commencement. The instrument’s own transitional clause makes that explicit for the Crimes Legislation Amendment Regulations 2018 changes.

• Because the instrument references State and Territory laws “as in force” in specified Territories (see regulation 6(3)), amendments to those State/Territory laws after the Regulations were made may affect the practical mapping and should be checked. The instrument itself does not automatically update to reflect subsequent amendments to the listed State/Territory statutes; it prescribes them as they apply to the Territory at the relevant time.

• The Regulations include notes inside the tables indicating where a law is “now repealed” in respect of certain prior‑repealed statutes. Those annotations signal that the drafters intended to capture both present and historically relevant regimes to avoid uncertainty. Nevertheless, practitioners must confirm the current statutory position for each listed enactment.

No legislative history beyond that single transitional clause is recorded in the instrument text supplied. For a full picture of amendment chronology, including the precise content of the amendments made by the Crimes Legislation Amendment (International Crime Cooperation and Other Measures) Regulations 2018, practitioners will need to consult parliamentary instruments and legislative registers that record amending instruments, and the consolidated text of this instrument as maintained by the Federal Register of Legislation.

The Regulations themselves contain no recorded litigation history. The instrument does not cite any cases, and no judicial decisions are included in the text. Because the Regulations are classificatory and procedural in character , specifying which jurisdictions and which civil proceedings fall within the operative scope of Part 3 of the Foreign Evidence Act 1994 , they are more likely to be referenced in litigation about the admissibility of foreign material under the Act than to be the subject of standalone constitutional or statutory challenge.

What to expect in practice

• Challenges in litigation will typically arise under the Foreign Evidence Act itself and the ordinary rules of evidence and procedure within the relevant State or Territory court. Courts will consult the Regulations as an authoritative statement of which proceedings are “related civil proceedings” and which Territory laws correspond to proceeds of crime laws for the Act’s purposes.

• Litigated issues that could reference the Regulations include jurisdictional contests (is the court a court of a State or Territory specified in regulation 6(1)?), definitional disputes (does the proceeding fall within the Schedule 1 list for that jurisdiction?), temporal issues (do the transitional application provisions in regulation 7 apply to this proceeding?), and the territorial mapping in regulation 6(3) (is a particular Territory law correctly treated as corresponding to a proceeds of crime law?).

Absence of case names in the instrument

• The instrument supplies a Note: “For the definition of related civil proceeding, see subsection 3(1) of the Act.” Any reported case law interpreting “related civil proceeding” will be jurisprudence about the Act, not these Regulations specifically. The Regulations are unlikely to be the primary basis of appellate rulings; rather, courts will use them as a statutory aid to interpret and apply the Act’s provisions.

Recommendation for practitioners

• If a matter raises a novel question about whether a proceeding is within the Schedule 1 categories or about whether a specified Territory law corresponds to a proceeds of crime law, expect the issue to be briefed and argued under the Act. Record the Regulations’ relevant entries in the originating application and be prepared to produce evidence about the current status of the listed State/Territory statutes where necessary.

• Given the lack of litigation history in the instrument, research into reported decisions that cite the Foreign Evidence Act and these Regulations should be performed in the jurisdiction relevant to the proceeding. Courts in the States and Territories listed in regulation 6(1) will have the relevant authorities; the Regulations themselves provide a starting point for argument rather than a body of case law.

In short, the Regulations do not include litigation history internally. Any judicial treatment of their classificatory effects will appear in decisions applying the Foreign Evidence Act and should be sought in case law databases for the particular State or Territory where the application under the Act is made.

The Regulations are tightly focused but contain several practical pitfalls that can catch practitioners unprepared if not checked carefully. The following are concrete issues to watch for, based on the text of the instrument.

1. Reliance on cross‑references to the Act. The Regulations repeatedly make their statements conditional on particular paragraphs of subsection 20(2) of the Act (regulation 6(1), 6(2), 6(3)). The instrument therefore assumes the user is familiar with the Act’s thresholds and procedural requirements. Practitioners who rely solely on the Regulations without consulting the Act may misunderstand admissibility requirements and procedural steps. The Note in regulation 6(2) explicitly directs users to subsection 3(1) of the Act for the definition of “related civil proceeding”.

2. “As in force in the Territory” phrasing. Regulation 6(3) prescribes Territory mappings to particular State laws, but the table entries often state the law “as in force in the [Territory]”. This creates a nuance: the correspondence depends on the law as it operates in the Territory at the time. If a State law has been amended, or its territorial application has varied, the mapping may shift. Practitioners should verify the version of the State law that is actually in force in the Territory, rather than assuming the mainland version applies unchanged.

3. Inclusion of repealed statutes. The Schedule includes statutes described as “now repealed” where they are relevant historically (for example, several items list repealed Acts as formerly operative). This indicates that the drafters aimed to capture a wide range of proceedings, including those under former statutes. Practitioners must not assume that inclusion of a repealed Act grants current coverage; instead, check whether there is a current successor Act or relevant transitional provision that still brings proceedings within the Schedule.

4. Breadth of “related civil proceeding” categories. Schedule 1 frequently uses the phrase “a related civil proceeding of any kind, including any of the following” and then lists examples (for example items for NSW, Victoria, Queensland). That drafting opens the door for arguments that other civil proceedings , not listed explicitly , are still “related” if they fall within the Act’s definition. Conversely, it means a proceeding not explicitly listed could still be captured. Practitioners should not rely on a narrow reading of Schedule 1 examples; instead, analyse how the proceeding fits the Act’s definition (see subsection 3(1) of the Act).

5. Territorial anomalies such as Norfolk Island. Norfolk Island is listed in regulation 6(1) and in Schedule 1 with a reference to the Criminal Procedure Act 2007 (Norfolk Island). Territorial governance changes over time may alter how Norfolk Island laws interact with the Commonwealth and State law. Ensure that you check the present legislative arrangements that apply to Norfolk Island in the particular matter.

6. Transitional application of amendments. Regulation 7 makes the amendments effected by the 2018 Crimes Legislation Amendment apply to proceedings commenced before, on and after the commencement. That retroactive‑seeming clause can be a procedural surprise in ongoing matters. Practitioners must check the exact scope and content of the amendments effected by the named amending instrument so they can advise on whether a historical or ongoing proceeding is newly affected.

7. No procedural forms or examples provided. The Regulations do not provide forms, prescribed notices, or steps for applications under Part 3 of the Act. They merely specify scope. As a result, party practice must rely on the Act and the rules of the relevant court. Expect local practice notes or court rules to govern procedural details.

8. Potential for mismatch between State/Territory enforcement practice and the Commonwealth scheme. The Regulations create cross‑jurisdictional compatibilities by specifying related civil proceedings and corresponding Territory laws, but operational cooperation (information requests, evidence production, timing) remains governed by the Act and by intergovernmental practices. The Regulations do not resolve practical cooperation issues such as execution of foreign evidence requests, service, or costs.

9. “Who decides” traps. Because the Regulations determine where the Act can be used, the initial decision about whether the Act applies may be made by administrative officers or by judges at an interlocutory stage. Be prepared for jurisdictional skirmishes early in proceedings.

10. Updating required. The instrument ties into many external Acts. Regularly verify the status of listed Acts and their territorial application at the time you rely on the Regulations. The schedule contains annotations and references to repealed Acts; confirm the present law.

In short, the Regulations provide useful classifications, but they rely on cross‑referencing and up‑to‑date statutory checking. The gotchas are largely about depending on the schedule without verifying the current statutory context, territorial versions of State laws, and the Act’s own definitional and procedural requirements.

Compliance with the Regulations is effectively compliance with the classification rules they establish when seeking to use the Foreign Evidence Act 1994, Part 3, in criminal and related civil proceedings. The Regulations do not create application forms or novel procedural duties; instead, they require that practitioners determine whether a proceeding and a court fall within the classes and jurisdictions the Regulations specify. The following is a practical compliance checklist and recommended workflows for practitioners, prosecutors and enforcement agencies.

1. Confirm the jurisdiction and court (regulation 6(1))

• Task: Identify whether the court in which the proceeding sits is a court of a State or Territory specified in regulation 6(1) (NSW, Vic, Qld, WA, SA, Tas, ACT, NT, Norfolk Island).

• Action: If the court is in one of the named jurisdictions, Part 3 of the Act may apply pursuant to subsection 20(2) of the Act; proceed to Step 2. If the court is not listed, do not assume the Regulations bring Part 3 to bear; instead, check the Act for other operation modes or other regulations.

2. Determine whether the proceeding is a criminal proceeding or a “related civil proceeding” (regulation 6(2) and Schedule 1; see also subsection 3(1) of the Act)

• Task: Classify the proceeding as criminal or as one of the related civil proceedings listed for that State/Territory in Schedule 1.

• Action: Cross‑reference the proceeding against Schedule 1 entries for the relevant State/Territory. If the proceeding fits an example (for example, a confiscation action, a victims compensation claim, a tax recovery proceeding), record the precise Schedule 1 item that supports inclusion. Also consult subsection 3(1) of the Act to confirm the statutory definition of “related civil proceeding” and ensure the proceeding meets that definition.

3. For proceedings in the mapped Territories, check corresponding laws (regulation 6(3))

• Task: If the matter relates to a Territory listed in regulation 6(3) (for example Australian Antarctic Territory, Coral Sea Islands Territory, Jervis Bay Territory, Ashmore and Cartier Islands, Christmas Island, Cocos (Keeling) Islands, Heard Island and McDonald Islands), identify which law in column 2 is prescribed as corresponding to a proceeds of crime law.

• Action: Verify the text of the prescribed law “as in force in the Territory” at the relevant time. That may require consulting the territorial compilation of the State/Territory law or official gazettes to ensure the exact version and territorial extent are used.

4. Consider amendments and timing (regulation 7)

• Task: Check whether the amendments referenced in regulation 7 or any later amendments apply to the proceeding, including proceedings that commenced before the amendment’s commencement.

• Action: Identify the commencement date of the relevant amending instrument and apply regulation 7’s rule if the amendments in question are those made by the Crimes Legislation Amendment (International Crime Cooperation and Other Measures) Regulations 2018. For any other amendments, consult the consolidated instrument and amendment history.

5. Prepare the Part 3 application under the Act

• Task: The Regulations determine scope; the application process follows the Act. Prepare applications for production of foreign material, witness evidence or documents in accordance with Part 3 of the Foreign Evidence Act 1994 and the court’s procedural rules.

• Action: Assemble the correct supporting material, identify the foreign material sought, set out how it is relevant to the criminal or related civil proceedings as classified under Schedule 1, and demonstrate compliance with any requirements of the Act (for example, thresholds for relevance, necessity, or service on interested parties). Also prepare to address jurisdictional arguments by citing the relevant entries in the Regulations and the Act.

6. Record keeping and evidentiary verification

• Task: Maintain records showing reliance on the Regulations and the versions of the State/Territory laws used to classify the proceeding.

• Action: Attach or record copies of the statutes cited from Schedule 1 or regulation 6(3), including the version or date as it is “in force in the Territory” where relevant. This evidentiary precision helps avoid challenges based on misapplication of the Schedule.

7. Anticipate defence objections and prepare responses

• Task: Defence counsel may raise jurisdictional, definitional or procedural objections based on the Regulations or on the application of the Act.

• Action: Prepare legal argument that demonstrates the proceeding is within the Schedule 1 class and that the court is a specified court under regulation 6(1). Where a Territory mapping is relied on, be ready to show the territorial application of the State law cited in regulation 6(3).

8. Coordinate with foreign evidence providers and agencies

• Task: Using the Act’s mechanisms will usually require cooperation from foreign authorities or channels for obtaining evidence.

• Action: Liaise with relevant Commonwealth agencies, intergovernmental counterparts, or central authorities to ensure requests for foreign material are drafted to meet Part 3 requirements and to align with the classifications in the Regulations.

9. Ongoing verification

• Task: Because the Schedule lists both current and formerly operative Acts (some annotated as “now repealed”), ensure the currency of all statutory references at each stage of the proceeding.

• Action: Prior to each major application or hearing, re‑verify the status of the statutes in Schedule 1 and the mapping in regulation 6(3) to confirm they remain accurate and applicable.

10. Practical court steps

• Task: When making an application in court, proactively present the legal basis , the Foreign Evidence Act provision invoked and the relevant entries in these Regulations , so the court can see the jurisdictional and subject‑matter basis for the application.

• Action: Include citations in the originating affidavit or application materials to regulation 6(1) (jurisdiction), regulation 6(2) and Schedule 1 (classification of proceedings), and regulation 6(3) where a Territory mapping is relied on. Also explain any transitional argument under regulation 7 if amendments might be contested.

In summary, compliance requires diligence in classification, verification of statutory versions and territorial application, and careful drafting of Part 3 applications under the Act. The Regulations simplify the question of scope by listing jurisdictions and categories, but they place an onus on practitioners to confirm territorial versions and to coordinate the application with the substantive and procedural rules contained in the Foreign Evidence Act and the practice rules of the relevant court.