Application of Evidence Act, 1995 (Cth.) in Victorian state courts

29 01 2008

Certain provisions of the Evidence Act, 1995 (Cth.) apply throughout Australia, wherever decision makers are required to apply the rules of evidence, or wherever evidence is taken: s. 5.  So antique are the documentary evidence provisions of the Evidence Act, 1958 (Vic.) that anything must be better than it.  So if I can see my way clear to establishing that something I want to tender is a Commonwealth record, I’ll be jumping over to the federal Act.

Those which this post deal with apply in relation to ‘Commonwealth records’, and documents which were Commonwealth records when they were produced. The term is defined in the Dictionary to the Act as:

a record made by:

  • (a)
    an Agency within the meaning of the Public Service Act 1999 ; or
  • (b)
    the Parliament, a House of the Parliament, a committee of a House of the Parliament or a committee of the Parliament; or
  • (c)
    a person or body other than a Legislative Assembly holding office, or exercising power, under or because of the Constitution or a law of the Commonwealth; or
  • (d)
    a body or organisation other than a Legislative Assembly, whether incorporated or unincorporated, established for a public purpose:

    • (i)
      by or under a law of the Commonwealth or of a Territory (other than the Australian Capital Territory, the Northern Territory or Norfolk Island); or
    • (ii)
      by the Governor-General; or
    • (iii)
      by a Minister; or
  • (e)
    any other body or organisation that is a Commonwealth owned body corporate;

and kept or maintained by a person, body or organisation of a kind referred to in paragraph (a) , (b) , (c) , (d) or (e) , but does not include a record made by a person or body holding office, or exercising power, under or because of the Constitution or a law of the Commonwealth if the record was not made in connection with holding the office concerned, or exercising the power concerned.’

The Public Service Act, 1999 s. 7 defines ‘Agency’ to mean ‘(a)  a Department; or (b)  an Executive Agency; or (c)  a Statutory Agency.’  ‘Department’ is defined to mean ‘a Department of State, excluding any part that is itself an Executive Agency or Statutory Agency’.  ‘Executive Agency’ is defined to mean ‘an Executive Agency established under section 65’.  Section 65 says ‘The Governor‑General may [establish an Executive Agency], by order in the Gazette, ….  For the purposes of this Act, an Executive Agency consists of the Head of the Agency, together with the APS employees assisting the Head. ‘Statutory Agency’ is defined to mean ‘a body or group of persons declared by an Act to be a Statutory Agency for the purposes of this Act.’

The provisions which apply are:

Sections 47, 48, 49 and 51 Documentary evidence
Section 69 Hearsay exception for business records
Subsection 70(1) Hearsay exception for tags, labels and other writing
Section 71 Hearsay exception for telecommunications
Section 147 Documents produced by processes, machines etc in the course of business
Section 149 Attestation of documents
Section 152 Documents produced from proper custody
Section 156 Public documents
Sections 161 and 162 Telexes, lettergrams and telegrams
Division 1 of Part 4.6 Requests to produce documents or call witnesses
Division 2 of Part 4.6 Proof of certain matters by affidavit or written statements
Section 183 Inferences about documents etc

 They apply in the following way (s. 182) :

(2) For the purposes of subsection (1) , section 69 , section 70(1) and section 71 apply in relation to proceedings, other than proceedings in a federal court or (until the day fixed by Proclamation under subsection 4(6) ) an ACT court, as if the references in those sections to 182)the hearsay rule were references to any rule of law restricting the admissibility or use of hearsay evidence.
(3) Subsection (1) applies to subsection 70(1) only in relation to tags or labels that may reasonably be supposed to have been attached to objects in the course of carrying on an activity engaged in by a body, person or organisation referred to in the definition of ‘Commonwealth record’ in the Dictionary.
(4) For the purposes of subsection (1) in relation to the application of subsection 70(1) :
  • (a)
    the reference in subsection (1) to documents includes a reference to writing placed on objects; and
  • (b)
    the reference in subsection (3) to tags or labels attached to objects includes a reference to writing placed on objects.
(4A) Section 160 applies in relation to postal articles sent by a Commonwealth agency as if that section applied to the extent provided for in section 5 .
(4B) Sections 47 , 48 , 49 , 51 , 147 , 149 and 152 , Divisions 1 and 2 of Part 4.6 and section 183 apply in relation to a Commonwealth document that:
  • (a)
    is in the possession of a Commonwealth entity; or
  • (b)
    has been destroyed but was, immediately before its destruction, in the possession of a Commonwealth entity or someone else to whom it had been given by a Commonwealth entity for destruction;

as if the section or Division applied to the extent provided for in section 5.

(5) This section does not derogate from the operation of a law of a State or Territory that enables evidence of a matter referred to in this section to be given.’




One response

18 04 2008
Never before, never again: Chief Justice of Norfolk Island gets a gig in the Victorian Court of Appeal

[…] You see, while all courts in NSW, the ACT, and Tasmania and all Commonwealth courts wherever situated, e.g. the Federal Court, Federal Magistrates' Court, and Family Court (with the possible exception of the in all respects iconoclastic Family Court of Western Australia), use a codified uniform evidence law contained in an Act of parliament, Victorian state courts (e.g. the Magistrates' Court, County Court, Supreme Court, Court of Appeal, and — though it professes not to have a law of evidence at all, if the truth be known — VCAT) still use the same old common law in use in Dickens's time, modified from time to time by separate state Acts. In fact Justice Byrne spent quite a while explaining The Queen's Case (1820) 2 Brod. & B. 284 to us in the Bar Readers Course. Just to make it complicated, though, certain provisions of the Uniform Evidence Law associated with Commonwealth documents apply in all courts, as I explained over here. […]

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