2012

ATTORNEY-GENERAL AND MINISTER FOR JUSTICE 

SERIAL NO. 1  

EXPLANATORY STATEMENT

Evidence (National Uniform legislation) (consequential amendments) BilL 2012

GENERAL OUTLINE

The Evidence (National Uniform Legislation) Act 2011 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 Northern Territory legislation.

NOTES ON CLAUSES

PART 1 PRELIMINARY

Clause 1 provides that the Bill when enacted will be called the Evidence (National Uniform 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. 

The transitional provisions will provide that the new Act applies to any proceedings commenced after the commencement day.  In the case of a proceeding that began before the commencement day, the new Act applies to that part of the proceeding that takes place after the commencement day, other than any hearing that began before the commencement day.  For these hearings, the old Act continues to apply to the hearing until it is completed.

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 4 to repeal unnecessary definitions and add new ones.

Clause 10 renames Part 2 of the Evidence Act as ‘Privilege’, 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 as follows.

Section 6 ‘Witness not disqualified by interest or crime’ is repealed.  This is covered by Part 2.1 ‘Witnesses’ especially section 12 of the Uniform Evidence Act ‘Competence and compellability’.

Section 7 ‘Parties, their wives and husbands are compellable as witnesses in civil proceedings’ is repealed.  This is covered by Part 2.1 ‘Witnesses’ of the Uniform Evidence Act.

Section 8 ‘Evidence as to adultery’ is repealed.  This provision is unnecessary.  In sexual assault cases, the rules are in section 4 of the Sexual Offences (Evidence and Procedure) Act, and in other cases the Uniform Evidence Act covers the field.  See Part 2.1 (especially sections 26 and 41).

Section 9 ‘Competency and compellability to give evidence in criminal proceedings’ is repealed.  This matter is covered by Part 2.1 ‘Witnesses’ of the Uniform Evidence Act.

Section 9C ‘Particular form of corroboration warning not to be given’ is repealed.  This provision deals with children’s evidence and warnings.  This is covered by section 165A of the Uniform Evidence Act.

Section 10 ‘Incriminating questions’ is repealed.  There is a new regime for privilege against self incrimination.  This is now covered by section 128 and 128A of the Uniform Evidence Act. 

Clause 11 renames section 12 of the Evidence Act as ‘Medical Privelege’, repeals section 12(1) and makes the section gender neutral.

Section 12 ‘Communications to clergymen and medical men’, subsection (1) - communications to clergy - is repealed.  Part 3.10 of the Uniform Evidence Act deals with certain privileged communications.  Section 127 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.  The information following indicates which sections or parts of the Uniform Evidence Act now deal with the relevant areas of the law, previously dealt with by the Evidence Act.

Section 13 ‘Vexatious and irrelevant questions in cross examination may be disallowed’ is repealed.  This is covered by Division 5 of the Uniform Evidence Act, especially section 41 of the Uniform Evidence Act. 

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

Section 15 ‘Relevancy in relation to the credibility of witnesses’ is repealed.  The Uniform Evidence Act covers the field of adducing evidence.  Part 3.7 deals with credibility evidence.

Section 16 ‘Disallowance of question’ is repealed.  This is covered by section 11 of the Uniform Evidence Act ‘General Powers of a Court’ and section 26 ‘Courts control over questioning of witnesses’.

Section 17 ‘Disallowed &c., questions not to be published’ is repealed.  This is covered by section 195 of the Uniform Evidence Act. 

Section 18 ‘How far a party may discredit his own witness’ is repealed.  This is covered by section 38 of the Uniform Evidence Act ‘Unfavourable witnesses’.

Section 19 ‘Proof of contradictory statements of witness’ is repealed.  This is covered by section 43 of the Uniform Evidence Act ‘Prior inconsistent statements of witnesses’.

Section 20 ‘Cross-examination as to previous statements in writing’ is repealed.  This is covered by section 43 ‘Prior inconsistent statements of witnesses’ and section 45 ‘Production of documents’.

Section 20A ‘Power to require a person present at proceeding to give evidence or produce evidentiary material’ is repealed.  This is covered by section 36 of the Uniform Evidence Act ‘Person may be examined without subpoena or other processes. 

Section 21 ‘Failure to comply with evidentiary summons’ is repealed.  This is covered by section 194 of the Uniform Evidence Act ‘Witness failing to attend proceedings’.

Clauses 13 and 14 rename Part IIA of the Evidence Act as Part 3 ‘Vulnerable Witnesses’ and Part III of the Evidence Act as ‘Part 4 Miscellaneous rules of evidence’.

Note: The provisions in Part IIA Vulnerable Witnesses are retained without change.

Clause 15 repeals the provisions in Part III (except sections 24 and 26E) of the Evidence Act.  The information following indicates which sections or parts of the Uniform Evidence Act now deal with the relevant areas of the law, previously dealt with by the Evidence Act.

Section 22 ‘Comparison of disputed writing or signature’ is repealed.  This is unnecessary.  The general rules on the admissibility of evidence cover this.

Section 23 ‘Attesting witness need not be called in certain cases’ is repealed.  This is covered by section 149 of the Uniform Evidence Act ‘Attestation of documents’.

Note that section 24 ‘Evidentiary certificate by reporting scientist’ is retained without change.  This area is also covered in a more general way by section 177 of the Uniform Evidence Act ‘Certificates of expert evidence’. 

Section 25 ‘Discovery in defamation actions’ is repealed.  This is covered by section 128 of the Uniform Evidence Act ‘Privilege in respect of self-incrimination in other proceedings.’

Section 26A ‘Proof of commission of offence’ is repealed.  This is covered by section 178 of the Uniform Evidence Act ‘Convictions, acquittals and other judicial proceedings’.

Section 26C ‘Evidence of rape, &c’ is repealed.  The admissibility of evidence and how that evidence is treated when it is admitted is covered by the Uniform Evidence Act.  For section 26C(2), see section 178 of the Uniform Evidence Act “Convictions, Acquittals and other judicial proceedings’.

Section 26D ‘Admissibility of documentary evidence as to facts in issue’ is repealed.  This is covered by Part 3.2 of the Uniform Evidence Act ‘Hearsay’.

Note that section 26E ‘Exception to rule against hearsay evidence’ is retained without change.

Section 26F ‘Weight to be attached to evidence’ is 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’.

Section 26G ‘Proof of instrument to validity of which attestation is necessary’ is repealed.  This is covered by section 149 of the Uniform Evidence Act ‘Attestation of documents’.

Section 26H ‘Presumptions as to documents 20 years old’ is repealed.  This is covered by section 152 of the Uniform Evidence Act ‘Documents produced from proper custody’. 

Section 26L Determination of admissibility before jury empanelled’ is repealed.  This is covered by the Uniform Evidence Act section 189 ‘Voir Dire’ & section 192A ‘Advance rulings’.

Clause 16 repeals Parts IV, IVA and V of the Evidence Act.  The information following indicates which sections or parts of the Uniform Evidence Act now deal with the relevant areas of the law, previously dealt with by the Evidence Act.

Part IV Public Acts and Documents.

Section 27 ‘Acts of state’ is repealed.  This is covered by the Uniform Evidence Act.  Part 4.3, Division 2 ‘Matters of official record’ covers this.

Section 27A ‘Proof of certain statutes’ is repealed.  The Uniform Evidence Act, Part 4.3, Division 2 ‘Matters of official record’ covers this.

Section 28 ‘Judgments, &c, of British, Colonial and Foreign Courts’ is  repealed.  The Uniform Evidence Act, Part 4.6, Division 3 ‘Foreign Law’ covers this.

Section 28A ‘Proof of instruments and executive acts’ is repealed.  The Uniform Evidence Act, Part 4.3, Division 2 ‘Matters of official record’ covers this.

Section 28C ‘Proof of Gazette’ is repealed.  The Uniform Evidence Act, Part 4.3, Division 2 ‘Matters of official record’ covers this.

Section 28D ‘Proof of printing by Government Printer’ is repealed.  The Uniform Evidence Act, Part 4.3, Division 2 ‘Matters of official record’ covers this.

Section 29 ‘Public Documents’ is repealed.  The Uniform Evidence Act, Part 4.3, Division 2 ‘Matters of official record’ covers this.

Section 30 ‘Non-Territory documents’ is repealed.  The Uniform Evidence Act, Part 4.3, Division 2 ‘Matters of official record’ covers this.

Section 31 was previously repealed.

Section 32 ‘Findings of guilt, acquittals and other criminal proceedings’ is repealed.  This is covered by the Uniform Evidence Act, section 178 ‘Convictions acquittals and other judicial proceedings’.

Section 33 ‘Proof of identity in cases of previous findings of guilt in Courts of Summary Jurisdiction’ is repealed.  The Uniform Evidence Act, Chapter 4, Part 4.6, Division 4 ‘Procedures for Proving other matters’ covers this, see especially section 179 ‘Proof of identity of convicted persons – affidavits by members of State or Territory police forces’.

Section 33A ‘Proof of identity of person found guilty in a State or in any other Territory’ is repealed.  The Uniform Evidence Act, section 179 ‘Proof of identity of convicted persons – affidavits by members of State or Territory police forces’ and section 180 ‘Proof of identity of convicted persons – affidavits by members of Australian Federal Police’ cover this.

Section 34 ‘Ships’ articles and registers of ship’ is repealed.  The Uniform Evidence Act, section 69 ‘Exception – business records’ covers this.

Section 35 ‘Bills of lading’ is repealed.  The Uniform Evidence Act, section 69 ‘Exception - business records’ covers this.

Section 36 ‘Judicial notice of certain signatures’ is repealed.  The Uniform Evidence Act, section 150 ‘Seals and signatures’ covers this.

Section 37 was previously repealed.

Section 38 was previously repealed.

Section 39 ‘Probate and letters of administration’ is  repealed but retained without change as the new section 60A of the Administration and Probate Act.

Section 40 was previously repealed.

Section 41 was previously repealed.

Section 42 ‘Impounding of Documents’ is repealed.  The Uniform Evidence Act, section 188 ‘Impounding Documents’ covers this.

Section 42A ‘Statement of wages to be evidence’ is repealed.  The Uniform Evidence Act, section 48 ‘Proof of contents of documents’ covers this.

Section 42B ‘Conditions under which print from photographic film admissible in evidence’ is repealed.  A photograph is defined as a document in the dictionary of the Uniform Evidence Act.  The area is covered by section 48 ‘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, section 130 ‘Exclusion of evidence of matters of state’ now covers the field.

Part V ADIs’ books

The whole of Part V is repealed.  This Part is covered by the Uniform Evidence Act, Part 2.2 ‘Documents’, Part 4.3 ‘Facilitation of proof’, especially section 147 ‘Documents produced by processes, machines and other devices in the course of business’.

Clause 17 renames Part VA of the Evidence Act as ‘Part 5 Communication links’. 

Clause 18 amends section 49 definitions and clause 19 repeals section 49A of the Evidence Act.

Note: The provisions of Part VA Use of Communication links are 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 as ‘Part 6’.

Note: The provisions of Part VI Evidence on commission are retained without change.

Clause 21 renames Part VIA of the Evidence Act as ‘Part 7 Confidential information’.

Note: The provisions of Part VIA Confidential communications are retained without change.

Clause 22 renames Part VII of the Evidence Act as ‘Part 8’.

Note: The provisions of Part VII Publication of Evidence are retained without change.

Clause 23 renames Part VIII of the Evidence Act as ‘Part 9 Other matters’.

Note: Section 62 ‘Proof of Public Place in certain cases’ is retained without change.
Note: Section 62A ‘Proof of place being within municipality, &c’ is retained without change.

Clause 24 repeals sections 63 and 64 of the Evidence Act, noting as follows:

Section 63 ‘Foreign law’ is repealed.  This is covered by the Uniform Evidence Act, Part 4.2, Division 3 ‘Foreign Law’.

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

Note: Section 65 ‘Regulations’ is retained without change.

Clause 25 renames Part IX of the Evidence Act as ‘Part 10 Transition provisions’ and inserts a new Division 1.

Clause 26 inserts a new Division 2 dealing with transitional matters for the Evidence (National Uniform Legislation) (Consequential Amendments) Act 2012. 

Clause 27 repeals the First and Fourth Schedules 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 section 39 of the Evidence Act ‘Probate and letters of administration’ is inserted as a 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 on the day after it commences.