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A Bill for an Act to amend the Foreign Evidence Act 1994, and for related purposes
Administered by: Attorney-General's
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Registered 04 Dec 2008
Introduced HR 03 Dec 2008

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

  

  


Contents

1............ Short title............................................................................................ 1

2............ Commencement.................................................................................. 1

3............ Schedule(s).......................................................................................... 1

Schedule 1—Amendments                                                                                                 1

Part 1—Amendments                                                                                                      1

Foreign Evidence Act 1994                                                                                       1

Part 2—Application and transitional provisions                                                     1

 


A Bill for an Act to amend the Foreign Evidence Act 1994, and for related purposes

The Parliament of Australia enacts:

1  Short title

                   This Act may be cited as the Foreign Evidence Amendment Act 2008.

2  Commencement

                   This Act commences on the day after it receives the Royal Assent.

3  Schedule(s)

                   Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.


 

Schedule 1Amendments

Part 1Amendments

Foreign Evidence Act 1994

1  Subsection 3(1)

Insert:

business has a meaning affected by clause 1 of Part 2 of the Dictionary in the Evidence Act 1995.

2  Subsection 3(1)

Insert:

business record means a document that:

                     (a)  is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business; or

                     (b)  at any time was or formed part of such a record.

3  Subsection 3(1)

Insert:

proceeds of crime law means the Proceeds of Crime Act 2002 or the Proceeds of Crime Act 1987.

4  Subsection 3(1) (paragraph (a) of the definition of related civil proceeding)

Omit “the Proceeds of Crime Act 2002 or the Proceeds of Crime Act 1987”, substitute “a proceeds of crime law”.

5  Paragraph 20(1)(c)

Omit “the Proceeds of Crime Act 2002 in relation to a designated offence”, substitute “a proceeds of crime law”.

6  At the end of subsection 20(2)

Add:

               ; or (c)  a proceeding under a law that is a corresponding law within the meaning of a proceeds of crime law.

7  After paragraph 22(1)(a)

Insert:

                    (aa)  under an obligation to tell the truth imposed, whether expressly or by implication, by or under a law of the foreign country concerned; or

8  At the end of section 22

Add:

             (3)  It is presumed (unless evidence sufficient to raise doubt is adduced to the contrary) that the testimony complies with subsections (1) and (2).

9  Subsection 23(1)

Omit “an audio or video tape”, substitute “a tape, disk or other device from which sounds or images are capable of being reproduced”.

10  Subsection 24(1)

Omit “subsection (2)”, substitute “this section”.

11  Subsection 24(2)

Repeal the subsection, substitute:

             (2)  The foreign material is not to be adduced as evidence if it appears to the court’s satisfaction at the hearing of the proceeding that the person who gave the testimony concerned is in Australia and is able to attend the hearing.

             (3)  If the foreign material does not appear to consist of a business record, the foreign material is not to be adduced as evidence if the evidence would not have been admissible had it been adduced from the person who gave the testimony concerned at the hearing of the proceeding.

             (4)  If the foreign material appears to consist of a business record, the business record is not to be adduced as evidence if:

                     (a)  the court considers that the business record is not reliable or probative; or

                     (b)  the business record is privileged from production in the proceeding.

             (5)  To avoid doubt, if foreign material is adduced in a proceeding in accordance with this Division, the foreign material is admissible in the proceeding.

             (6)  Subsection (5) has effect despite any Commonwealth, State or Territory law about evidence.

12  After section 24

Insert:

24A  Discretion to limit use of foreign material

                   The court may limit the use to be made of foreign material if there is a danger that a particular use of the foreign material might be unfairly prejudicial to a party to the proceeding concerned.

13  Subsection 26(1)

Omit “specified foreign material was”, substitute “specified documents or things were”.

Note:       The heading to section 26 is altered by omitting “foreign material” and substituting “requests made to foreign countries”.

14  Subsection 26(2)

Omit “foreign material specified in the certificate was”, substitute “documents or things specified in the certificate were”.


 

Part 2Application and transitional provisions

15  Application of amendments made by items 7 and 8

The amendments made by items 7 and 8 of this Schedule apply in relation to testimony taken before or after the commencement of this item that is adduced on or after the commencement of this item.

16  Application of amendments made by items 10 and 11

The amendments made by items 10 and 11 of this Schedule apply in relation to foreign material obtained before or after the commencement of this item that is adduced on or after the commencement of this item.

17  Application of item 12—section 24A of the Foreign Evidence Act 1994

Section 24A of the Foreign Evidence Act 1994, as inserted by this Schedule, applies in relation to foreign material adduced on or after the commencement of this item.

18  Application of amendments made by items 13 and 14

The amendments made by items 13 and 14 of this Schedule apply in relation to a certificate that:

                     (a)  is given on or after the commencement of this item; and

                     (b)  relates to a document or thing obtained as a result of a request made before or after the commencement of this item.

19  Transitional and application provision—proceedings in a court of a State or Territory

(1)        Despite the amendments made by this Schedule, Part 3 of the Foreign Evidence Act 1994 continues to apply to a proceeding mentioned in subsection 20(2) of that Act as if those amendments had not been made.

(2)        However, if the regulations provide that those amendments apply to such a proceeding in a court of a particular State or Territory, Part 3 of that Act, as amended by this Schedule, applies to that proceeding.

(3)        The Governor‑General may make regulations for the purposes of subitem (2).