Commonwealth Numbered Acts

LAW AND JUSTICE LEGISLATION AMENDMENT ACT 1997 No. 34 of 1997 - SCHEDULE 6

Schedule 6-Amendment of the Evidence Act 1995 1 Paragraph 20(3)(a)
Omit "defacto", substitute "de facto". 2 Paragraph 20(4)(b)
Omit "defacto", substitute "de facto". 3 Subsection 43(3)
Omit "the party", substitute "a party". 4 At the end of subsection 68(4)
Add: Note: Subsection (4) differs from subsection 68(4) of the NSW Act. 5
Subsection 70(2) (note 1)
Omit "section 57", substitute "section 70". 6 Section 102 (note)
Renumber the note as Note 1. 7 Section 102 (note)
Omit ", 104 and 107", substitute "and 104". 8 At the end of section 102
Add: Note 2: Section 108A makes provision as to the admission of evidence that
is relevant only to the credibility of a person who has made a previous
representation. 9 Section 107
Repeal the section. 10 Subsection 108(2)
Omit "or 107". 11 At the end of Part 3.7
Add: 108A Admissibility of evidence of credibility of person who has made a
previous representation

(1) If:

   (a)  because of a provision of Part 3.2, the hearsay rule does not apply to
        evidence of a previous representation; and

   (b)  evidence of the representation has been admitted; and

   (c)  the person who made the representation has not been called, and will
        not be called, to give evidence in the proceeding; evidence that is
        relevant only to the credibility of the person who made the
        representation is not admissible unless the evidence has substantial
        probative value.

(2) Without limiting the matters to which the court may have regard in
deciding whether the evidence has substantial probative value, it is to have
regard to:

   (a)  whether the evidence tends to prove that the person who made the
        representation knowingly or recklessly made a false representation
        when the person was under an obligation to tell the truth; and

   (b)  the period that elapsed between the doing of the acts or the
        occurrence of the events to which the representation related and the
        making of the representation. 12 Subsection 120(2)
Repeal the subsection. 13 At the end of subsection 128(7)
Add: Note: Subsection 128(7) differs from subsection 128(7) of the NSW Act.
The NSW provision refers to a NSW Court instead of an Australian Court. 14 At
the end of section 128 (before the notes)
Add:

(10) If a person has been given a certificate under a prescribed State or
Territory provision in respect of evidence given by the person in a proceeding
in a State or Territory court, the certificate has the same effect, in a
proceeding to which this subsection applies, as if it had been given under
this section.

(11) The following are prescribed State or Territory provisions for the
purposes of subsection (10):

   (a)  section 128 of the Evidence Act 1995 of New South Wales;

   (b)  a provision of a law of a State or Territory declared by the
        regulations to be a prescribed State or Territory provision for the
        purposes of subsection (10).

(12) Subsection (10) applies to:

   (a)  a proceeding in relation to which this Act applies because of section
        4; and

   (b)  a proceeding for an offence against a law of the Commonwealth or for
        the recovery of a civil penalty under a law of the Commonwealth, other
        than a proceeding referred to in paragraph (a).

(13) Until the day fixed under subsection 4(6), subsection (10) applies to a
proceeding for an offence against a law of the Australian Capital Territory or
for the recovery of a civil penalty under such a law, other than a proceeding
referred to in paragraph (12)(a). Note: The NSW Act does not contain
provisions corresponding to subsection (10) to (13). 15 Section 154 (note 1)
Repeal the note. 16 Section 155 (note 1)
Repeal the note, substitute: Note 1: Subsection 155(1) differs from subsection
155(1) of the NSW Act. The NSW provision refers to evidence of a public
document of a State or Territory rather than evidence of a public record of a
State or Territory. 17 Section 158 (note 1)
Repeal the note. 18 At the end of subsection 170(1)
Add: Note: The table differs from the table in subsection 170(1) of the NSW
Act because that Act has no equivalent to section 182 of this Act. 19
Dictionary, Part 1 (after the definition of confidential document)
Add: Note: The NSW Act includes a definition of court. 20 Dictionary, Part 1
(before the definition of credibility)
Insert:
credibility of a person who has made a representation that has been admitted
in evidence means the credibility of the representation, and includes the
person's ability to observe or remember facts and events about which the
person made the representation. 21 Dictionary, Part 1 (note following the
definition of government or official gazette)
Repeal the note, substitute: Note 1: The definition of government or official
gazette differs from the definition of the same expression in the NSW Act.
Note 2: The NSW Act includes definitions of Governor of a State and
Governor-General. Those terms are not defined in this Act because they are
defined in sections 16A and 16B of the Acts Interpretation Act 1901. 22
Dictionary, Part 1 (definition of identification evidence)
Omit from paragraph (a) "saw or heard", substitute "saw, heard or otherwise
perceived". 23 Dictionary, Part 2, subclause 7(3)
Omit "section", substitute "clause". 24 Dictionary, Part 2, paragraph 10(1)(a)
Omit "and an", substitute "or".