2008 The Parliament of the Commonwealth of Australia HOUSE OF REPRESENTATIVES Presented and read a first time Foreign Evidence Amendment Bill 2008 No. , 2008 (Attorney-General) A Bill for an Act to amend the Foreign Evidence Act 1994, and for related purposes [Page Break] 1 Short title ............................................................................................ 1 2 Commencement .................................................................................. 1 3 Schedule(s) ......................................................................................... 1 Schedule 1--Amendme nts 3 Part 1--Amendments 3 Foreign Evidence Act 1994 3 Part 2--Application and transitional provisions 6 i Foreign Evidence Amendment Bill 2008 No. , 2008 [Page Break] 2 1994, and for related purposes 3 The Parliament of Australia enacts: 4 1 Short title 5 This Act may be cited as the Foreign Evidence Amendment Act 6 2008. 7 2 Commence ment 8 This Act commences on the day after it receives the Royal Assent. 9 3 Schedule(s) 10 Each Act that is specified in a Schedule to this Act is amended or 11 repealed as set out in the applicable items in the Schedule Foreign Evidence Amendment Bill 2008 No. , 2008 1 [Page Break] 2 according to its terms. 3 2 Foreign Evidence Amendment Bill 2008 No. , 2008 [Page Break] Amend ments Part 1 1 2 Schedule 1--Amendments 3 Part 1--Amendments 4 Foreign Evidence Act 1994 5 1 Subsection 3(1) 6 Insert: 7 business has a meaning affected by clause 1 of Part 2 of the 8 Dictionary in the Evidence Act 1995. 9 2 Subsection 3(1) 10 Insert: 11 business record means a document that: 12 (a) is or forms part of the records belonging to or kept by a 13 person, body or organisation in the course of, or for the 14 purposes of, a business; or 15 (b) at any time was or formed part of such a record. 16 3 Subsection 3(1) 17 Insert: 18 proceeds of crime law means the Proceeds of Crime Act 2002 or 19 the Proceeds of Crime Act 1987. 20 4 Subsection 3(1) (paragraph (a) of the definition of related 21 civil proceeding) 22 Omit "the Proceeds of Crime Act 2002 or the Proceeds of Crime Act 23 1987", substitute "a proceeds of crime law". 24 5 Paragraph 20(1)(c) 25 Omit "the Proceeds of Crime Act 2002 in relation to a designated 26 offence", substitute "a proceeds of crime law". 27 6 At the end of subsection 20(2) 28 Add: Foreign Evidence Amendment Bill 2008 No. , 2008 3 [Page Break] Part 1 A mend ments 1 ; or (c) a proceeding under a law that is a corresponding law within 2 the meaning of a proceeds of crime law. 3 7 After paragraph 22(1)(a) 4 Insert: 5 (aa) under an obligation to tell the truth imposed, whether 6 expressly or by implication, by or under a law of the foreign 7 country concerned; or 8 8 At the end of section 22 9 Add: 10 (3) It is presumed (unless evidence sufficient to raise doubt is adduced 11 to the contrary) that the testimony complies with subsections (1) 12 and (2). 13 9 Subsection 23(1) 14 Omit "an audio or video tape", substitute "a tape, disk or other device 15 from which sounds or images are capable of being reproduced". 16 10 Subsection 24(1) 17 Omit "subsection (2)", substitute "this section". 18 11 Subsection 24(2) 19 Repeal the subsection, substitute: 20 (2) The foreign material is not to be adduced as evidence if it appears 21 to the court's satisfaction at the hearing of the proceeding that the 22 person who gave the testimony concerned is in Australia and is 23 able to attend the hearing. 24 (3) If the foreign material does not appear to consist of a business 25 record, the foreign material is not to be adduced as evidence if the 26 evidence would not have been admissible had it been adduced from 27 the person who gave the testimony concerned at the hearing of the 28 proceeding. 29 (4) If the foreign material appears to consist of a business record, the 30 business record is not to be adduced as evidence if: 31 (a) the court considers that the business record is not reliable or 32 probative; or 4 Foreign Evidence Amendment Bill 2008 No. , 2008 [Page Break] Amend ments Part 1 1 (b) the business record is privileged from production in the 2 proceeding. 3 (5) To avoid doubt, if foreign material is adduced in a proceeding in 4 accordance with this Division, the foreign material is admissible in 5 the proceeding. 6 (6) Subsection (5) has effect despite any Commonwealth, State or 7 Territory law about evidence. 8 12 After section 24 9 Insert: 10 24A Discretion to limit use of foreign mate rial 11 The court may limit the use to be made of foreign material if there 12 is a danger that a particular use of the foreign material might be 13 unfairly prejudicial to a party to the proceeding concerned. 14 13 Subsection 26(1) 15 Omit "specified foreign material was", substitute "specified documents 16 or things were". 17 Note: The heading to section 26 is altered by omitting "foreign material" and substituting 18 "requests made to foreign countries". 19 14 Subsection 26(2) 20 Omit "foreign material specified in the certificate was", substitute 21 "documents or things specified in the certificate were". 22 Foreign Evidence Amendment Bill 2008 No. , 2008 5 [Page Break] Part 2 Application and transitional provisions 1 2 Part 2--Application and transitional provisions 3 15 Application of amendments made by items 7 and 8 4 The amendments made by items 7 and 8 of this Schedule apply in 5 relation to testimony taken before or after the commencement of this 6 item that is adduced on or after the commencement of this item. 7 16 Application of amendments made by items 10 and 11 8 The amendments made by items 10 and 11 of this Schedule apply in 9 relation to foreign material obtained before or after the commencement 10 of this item that is adduced on or after the commencement of this item. 11 17 Application of item 12--section 24A of the Foreign 12 Evidence Act 1994 13 Section 24A of the Foreign Evidence Act 1994, as inserted by this 14 Schedule, applies in relation to foreign material adduced on or after the 15 commencement of this item. 16 18 Application of amendments made by items 13 and 14 17 The amendments made by items 13 and 14 of this Schedule apply in 18 relation to a certificate that: 19 (a) is given on or after the commencement of this item; and 20 (b) relates to a document or thing obtained as a result of a 21 request made before or after the commencement of this item. 22 19 Transitional and application provision--proceedings in a 23 court of a State or Territory 24 (1) Despite the amendments made by this Schedule, Part 3 of the Foreign 25 Evidence Act 1994 continues to apply to a proceeding mentioned in 26 subsection 20(2) of that Act as if those amendments had not been made. 27 (2) However, if the regulations provide that those amendments apply to 28 such a proceeding in a court of a particular State or Territory, Part 3 of 29 that Act, as amended by this Schedule, applies to that proceeding. 30 (3) The Governor-General may make regulations for the purposes of 31 subitem (2). 6 Foreign Evidence Amendment Bill 2008 No. , 2008