2012

MINISTER FOR JUSTICE AND ATTORNEY-GENERAL

SERIAL NO. 204

EXPLANATORY STATEMENT

Evidence (National Uniform legislation) consequential amendments BilL 2012

GENERAL OUTLINE

The Evidence (National Uniform Legislation) Act provides for a new statutory law of evidence that will reform the current common law and statute law. The Evidence (National Uniform Legislation) Consequential Amendments Bill 2012 makes consequential amendments to the Northern Territory legislation.

NOTES ON CLAUSES

PART 1 PRELIMINARY

Clause 1 provides that the Bill when enacted will be called the Evidence (National Uniform Evidence Legislation) Consequential Amendments Act 2012.

Clause 2	provides for the commencement of the Act on the date fixed by the Administrator by Gazette notice.

PART 2 AMENDMENT OF EVIDENCE (NATIONAL UNIFORM LEGISLATION) ACT 

Clauses 3 and 4 add a new Chapter 6: Transitional matters for Evidence (National Uniform Legislation) Act 2011 to that Act. 

PART 3 AMENDMENT OF EVIDENCE ACT 

Clauses 5 to 28 repeal various sections of the Evidence Act. 

The information below indicates which sections or parts of the Evidence (National Uniform Evidence Legislation) Act 2011 – referred to as the Uniform Evidence Act - now deal with the relevant areas of the law, previously dealt with by the Evidence Act.

Clause 9 amends the definition section to repeal unnecessary definitions and add new ones.

Clause 10 inserts new sections defining the application of the Evidence Act and its relationship with the Uniform Evidence Act and repeals or replaces sections 6-10 of the Evidence Act.

6.	Witness not disqualified by interest or crime: Repealed. This is covered by Part 2.1 – ‘Witnesses’ especially s12 Uniform Evidence Act ‘Competence and compellability’.

7.	Parties, their wives and husbands compellable as witnesses in civil proceeding: Repealed. This is covered by Part 2.1 - ‘Witnesses’.

8.	Evidence as to adultery: Repealed. This provision is unnecessary. In sexual assault cases the rules are in s4 Sexual Offences (Evidence and Procedure) Act, and in other cases the Uniform Evidence Act covers the field. See part 2.1 (especially ss26 & 41)

9.	Competency and compellability to give evidence in criminal proceedings: Repealed. This matter is covered by Part 2.1 – ‘Witnesses’ Uniform Evidence Act.

9C. Particular form of corroboration warning not to be given: Repealed. This provision deals with children’s evidence and warnings. This is covered by s165A Uniform Evidence Act.

10.	Incriminating questions: Repealed. There is a new regime for privilege against self incrimination. This is now covered by ss128 & 128A Uniform Evidence Act. 

Clause 11 renames Part 2 of the Evidence Act, repeals section 12(1) and makes the section gender neutral.

12.	Communications to Clergymen and medical men
Subsection (1) - communications to clergy - is repealed. Part 3.10 Uniform Evidence Act deals with certain privileged communications. s127 Religious confessions will cover communications to clergy. 
Subsections (2) and (3) dealing with medical privilege are not repealed.

Note: Division 1A Professional Confidential Relationship Privilege in the model Uniform Act has not yet been adopted in the Northern Territory in the Uniform Evidence Act. If it is adopted, the remainder of section 12 would be repealed.

Clause 12 repeals sections 13-21 of the Evidence Act.

13.	Vexatious and irrelevant questions in cross examination may be disallowed: Repealed. This is covered by Division 5 of the Uniform Evidence Act especially s41 Uniform Evidence Act. 

14.	Disallowance of certain questions in cross-examination: Repealed. The general rules on relevance and adducing evidence in the Uniform Evidence Act cover this. See especially Part 2.1 Div 5 – ‘Cross-examination’.

15.	Relevancy in relation to the credibility of witnesses:
Repealed. The Uniform Evidence Act covers the field of adducing evidence. Part 3.7 deals with credibility evidence.

16.	Disallowance of question: Repealed. This is covered by s11 Uniform Evidence Act ‘General Powers of a Court’ & s26 ‘Courts control over questioning of witnesses’.

17.	Disallowed &c., questions not to be published: Repealed. This is covered by s195 Uniform Evidence Act. 

18.	How far a party may discredit his own witness: Repealed. This is covered by s38 Uniform Evidence Act ‘Unfavourable witnesses’.

19.	Proof of contradictory statements of witness: Repealed. This is covered by s43 Uniform Evidence Act ‘Prior inconsistent statements of witnesses’.

20.	Cross-examination as to previous statements in writing: This is covered by s43 ‘Prior inconsistent statements of witnesses’ and s45 ‘Production of documents’.

20A. Power to require a person present at proceeding to give evidence or produce evidentiary material: Repealed. This is covered by s36 Uniform Evidence Act ‘Person may be examined without subpoena or other processes. 

21.	Failure to comply with evidentiary summons: Repealed. This is covered by s194 Uniform Evidence Act ‘Witness failing to attend proceedings’.

Clause 13 and 14 rename Part IIA and III of the Evidence Act.

Note: Part IIA Vulnerable Witnesses is retained without change.

Clause 15 repeals Part III (except ss24 and 26E) of the Evidence Act.

Part III Miscellaneous rules of evidence 

22.	Comparison of disputed writing: Repealed. This is unnecessary. The general rules on the admissibility of evidence cover this.

23.	Attesting witness need not be called in certain cases: Repealed. This is covered by s149 Uniform Evidence Act ‘Attestation of documents’.

Note 24. Evidentiary certificate by reporting scientist: is retained without change. This area is also covered in a more general way by s177 Uniform Evidence Act ‘Certificates of expert evidence’. 

25.	Discovery in defamation actions: Repealed. This is covered by s128 Uniform Evidence Act ‘Privilege in respect of self-incrimination in other proceedings.’

26A. Proof of commission of offence: Repealed. This is covered by s178 Uniform Evidence Act ‘Convictions, acquittals and other judicial proceedings’.

26C. Evidence of rape &c: Repealed. The admissibility of evidence and how that evidence is treated when it is admitted is covered by the Uniform Evidence Act. For 26C(2) see s178 Uniform Evidence Act “Convictions, Acquittals and other judicial proceedings’

26D. Admissibility of documentary evidence as to facts at issue: Repealed. This is covered by Part 3.2 Uniform Evidence Act ‘Hearsay’.

Note 26E. Exception to the rule against hearsay is retained without change.

26F. Weight to be attached to evidence: Repealed. This provision is unnecessary. The Uniform Evidence Act covers the field. See e.g. Chapter 4, especially Part 4.4 ‘Corroboration’ and Part 4.5 ‘Warnings and Information’.

26G. Proof of instrument: Repealed. This is covered by s149 Uniform Evidence Act ‘Attestation of documents’.

26H. Presumptions as to documents 20 years old: Repealed. This is covered by s152 Uniform Evidence Act ‘Documents produced from proper custody’. 

26L. Determination of admissibility before jury empanelled: Repealed. This is covered by Uniform Evidence Act s189 ‘Voir Dire’ & s192A ‘Advance rulings’.

Clause 16 repeals Parts IV, IVA and V of the Evidence Act.

Part IV Public Acts and Documents.

27.	Acts of State: Repealed. This is covered by Uniform Evidence Act Part 4.3 Div 2 ‘Matters of official record’ covers this.

27A. Proof of certain statutes: Repealed. Uniform Evidence Act Part 4.3 Div 2 ‘Matters of official record’ covers this.

28.	Judgments &c, of British, Colonial and Foreign Courts: Repealed. Uniform Evidence Act Part 4.6 Div 3 ‘Foreign Law’ covers this.

28A. Proof of instruments and executive acts: Uniform Evidence Act Part 4.3 Div 2 ‘Matters of official record’ covers this.

28C. Proof of Gazette: Repealed. Uniform Evidence Act Part 4.3 Div 2 ‘Matters of official record’ covers this.

28D. Proof of printing by Govt Printer: Uniform Evidence Act Part 4.3 Div 2 ‘Matters of official record’ covers this.

29.	Public Documents: Uniform Evidence Act Part 4.3 Div 2 ‘Matters of official record’ covers this.

30.	Non-Territory documents: Repealed. Uniform Evidence Act Part 4.3 Div 2 ‘Matters of official record’ covers this.

31….Previously repealed

32.	Findings of guilt, acquittals and other criminal proceedings: Repealed. This is covered by Uniform Evidence Act s178 ‘Convictions acquittals and other judicial proceedings

33.	Proof of identity in cases of previous findings of guilt in Courts of Summary Jurisdiction: Repealed. Uniform Evidence Act Chapter 4, Part 4.6, Division 4 ‘Procedures for Proving other matters’ see especially s179 ‘Proof of identity of convicted persons – affidavits by members of State or Territory police forces’.

33A. Proof of identity of person found guilty in a State: Repealed. Uniform Evidence Act s179 ‘Proof of identity of convicted persons – affidavits by members of State or Territory police forces’ and s180 ‘Proof of identity of convicted persons – affidavits by members of Australian Federal Police’ cover this.

34.	Ships’ articles and registers of ship: Repealed. Uniform Evidence Act s69 ‘Exception – business records’ covers this.

35.	Bills of lading: Repealed. Uniform Evidence Act s69 ‘Exception - business records’

36.	Judicial notice of certain signatures: Repeal. Uniform Evidence Act s150 ‘Seals and signatures’ 

37.	… Previously repealed

38.	… Previously repealed

39.	Probate and letters of administration: Repealed but retained without change as the new section 60A of the Administration and Probate Act.

40.	.. Previously repealed

41.	.. Previously repealed

42.	Impounding of Documents: Repealed. Uniform Evidence Act s188 ‘Impounding Documents’ covers this.

42A. Statement of wages to be evidence: Repealed. Uniform Evidence Act s48 ‘Proof of contents of documents’ covers this.

42B. Conditions under which print from photographic film admissible in evidence: A photograph is defined as a document in the dictionary of Uniform Evidence Act. The area is covered by s48 ‘Proof of contents of documents’. 

Part IVA Crown Privilege

The whole of Part IVA is repealed. This part describes Crown privilege or public interest privilege. The Uniform Evidence Act s130 ‘Exclusion of evidence of matters of state’ now covers the field.

Part V ADI’S books

The whole of Part V is repealed. This Part is covered by Uniform Evidence Act Part 2.2 ‘Documents’, Part 4.3 ‘Facilitation of proof’. Especially s147 ‘Documents produced by processes, machines and other devices in the course of business’.

Clause 17 renames Part VA of the Evidence Act. 

Clause 18 amends s49 and Clause 19 repeals s49A of the Evidence Act.

Note: Part VA Use of Communication links is retained without change except for technical amendments. The concept of Territory/interstate entity replaces Territory/interstate court to avoid using language now used in the Uniform Evidence Act.

Clause 20 renames Part VI of the Evidence Act.

Note: Part VI Evidence on commission is retained without change.

Clause 21 renames Part VIA of the Evidence Act.

Note: Part VIA Confidential communications is retained without change.

Clause 22 renames Part VII of the Evidence Act.

Note: Part VII Publication of Evidence is retained without change.

Clause 23 renames Part VIII of the Evidence Act.

Note: 62. Proof of Public Place in certain cases: Retained without change.
Note: 62A. Proof of place being within municipality, &c: Retained without change.

Clause 24 repeals ss63 and 64 of the Evidence Act

63. Foreign law: Repealed. This is covered by Uniform Evidence Act Part 4.2 Div 3 ‘Foreign Law’.

64 Reference by Court to books &c., or official certificates in certain matters relating to posts and telegraphs, locality and distance: Repealed. This is covered by Uniform Evidence Act Part 4.2 ‘Judicial Notice’

Note: 65. Regulations are retained without change.

Clause 25 renames Part IX of the Evidence Act.

Clause 26 inserts a new Division dealing with transitional matters for the Evidence (National Uniform Legislation) Consequential Amendments Act 2012. 

Clause 27 repeals the First and Fourth Schedule of the Evidence Act

Clause 28 makes the minor amendments set out in Schedule 1 of the Bill to the Evidence Act.

PART 4 AMENDMENT OF ADMINISTRATION AND PROBATE ACT 

Clauses 29 and 30 provide that the former s.39 of the Evidence Act - Probate and letters of administration – is inserted as the new section 60A of the Administration and Probate Act.

PART 5 REPEALS AND OTHER AMENDMENTS 

Clause 31 repeals the Evidence (Business Records) Interim Arrangements Act 1984 

Clause 32 makes a series of technical amendments to legislation set out in Schedule 2 of the Bill.

PART 6 expiry of act

Clause 33 provides for the expiry of the Act.