An Act about certain evidentiary matters involving overseas jurisdictions
Part 1—Preliminary
1 Short title
This Act may be cited as the Foreign Evidence Act 1994.
2 Commencement
(1) Subject to subsections (2) and (4), this Act commences on the day on which it receives the Royal Assent.
(2) Subject to subsection (3), Part 3 commences on a day to be fixed by Proclamation.
(3) If Part 3 does not commence under subsection (2) within the period of 6 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.
(4) Subject to subsection (5), Part 5 commences on a day to be fixed by Proclamation.
(5) The day fixed under subsection (4) must not be a day occurring before the Convention enters into force for Australia.
3 Definitions
(1) In this Act, unless the contrary intention appears:
ASIC means the Australian Securities and Investments Commission.
Australian court means:
(a) the High Court; or
(b) a court exercising federal jurisdiction; or
(c) a court of a State or Territory; or
(d) a judge, justice or arbitrator under an Australian law; or
(e) a person or body authorised by an Australian law, or by consent of parties, to hear, receive and examine evidence;
and, for the purposes of Part 6, includes a person or body authorised to take or receive evidence, whether on behalf of a court or otherwise and whether or not the person or body is empowered to require the answering of questions or the production of documents.
Australian law means a law (whether written or unwritten) of or in force in the Commonwealth, a State or a Territory.
business has a meaning affected by clause 1 of Part 2 of the Dictionary in the Evidence Act 1995.
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.
civil proceeding means a proceeding other than a criminal proceeding.
Convention means the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents, a copy of the English text of which is set out in the Schedule.
criminal proceeding means a prosecution for an offence and includes a proceeding for the committal of a person for trial or sentence for an offence, but does not include a prosecution for an offence that is a prescribed taxation offence within the meaning of Part III of the Taxation Administration Act 1953.
designated offence means:
(a) an offence against subsection 34GD(8) of the Australian Security Intelligence Organisation Act 1979, if the questioning warrant to which the offence relates is a PMV‑related questioning warrant; or
(b) an offence against section 49 of the Aviation Transport Security Act 2004; or
(c) an offence against either of the following provisions of the Charter of the United Nations Act 1945:
(i) Part 4 of that Act;
(ii) Part 5 of that Act, to the extent that it relates to the Charter of the United Nations (Sanctions—Al‑Qaida) Regulations 2008; or
(d) an offence against Subdivision A of Division 72 of the Criminal Code; or
(da) an offence against Subdivision B of Division 80 of the Criminal Code; or
(db) an offence against Division 82 of the Criminal Code (sabotage); or
(e) an offence against Part 5.3 of the Criminal Code; or
(f) an offence against Part 5.4 of the Criminal Code; or
(fa) an offence against Part 5.5 of the Criminal Code; or
(h) an offence against Division 1 of Part 2 of the Crimes (Aviation) Act 1991; or
(i) an offence against section 8 of the Crimes (Biological Weapons) Act 1976; or
(k) an offence against section 8 of the Crimes (Hostages) Act 1989; or
(l) an offence against the Crimes (Internationally Protected Persons) Act 1976; or
(m) an offence against section 6 of the Crimes Act 1914 that relates to an offence mentioned in any of the above paragraphs.
Note: For other ancillary offences, see section 11.6 of the Criminal Code.
document means any record of information, and includes:
(a) anything on which there is writing; and
(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; and
(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; and
(d) a map, plan, drawing or photograph.
duress has the meaning given by subsection 27D(3).
examination includes any proceeding that is for the taking of evidence of a person conducted by the judicial authorities of a foreign country in relation to a letter of request issued as a result of an order made by a superior court under Part 2.
foreign authority means an authority of a foreign country or of part of a foreign country.
foreign business authority means a person or body that has, under a law of a foreign country, functions relating to the administration or enforcement of a law of that country that regulates, or relates to the regulation of, business or persons engaged in business.
foreign government material means material provided by a foreign authority to an authority of the Commonwealth.
foreign law means a law (whether written or unwritten) of or in force in a foreign country.
foreign material means:
(a) for the purposes of Parts 3 and 3A—the testimony of a person that:
(i) was obtained as a result of a request of a kind referred to in section 21; and
(ii) complies with the requirements of section 22;
including any documents or things produced by or with such testimony; and
(b) for the purposes of Part 4—the testimony of a person that:
(i) was obtained as a result of a request of a kind referred to in section 29; and
(ii) complies with the requirements of section 30;
including any documents or things produced by or with such testimony.
foreign public document means a document to which Article 1 of the Convention applies, other than a document executed in a foreign country (if any) that has objected to Australia’s accession to the Convention.
inferior court means any of the following courts (other than a superior court):
(a) a court of a State when exercising federal jurisdiction;
(b) subject to subsection (2), a court of a Territory (other than the Northern Territory);
(c) a court of the Northern Territory when exercising jurisdiction conferred or vested by an Act of the Parliament.
member of the Australian Federal Police has the same meaning as in the Australian Federal Police Act 1979.
PMV‑related questioning warrant means a questioning warrant that is issued in relation to politically motivated violence (within the meaning of the Australian Security Intelligence Organisation Act 1979).
proceeds of crime law means the Proceeds of Crime Act 2002 or the Proceeds of Crime Act 1987.
questioning warrant has the same meaning as in Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979.
related civil proceeding, in relation to a criminal proceeding, means any civil proceeding arising from the same subject matter from which the criminal proceeding arose, and, in particular, includes:
(a) a proceeding under a proceeds of crime law; or
(b) a proceeding under the Customs Act 1901; or
(c) a proceeding for the recovery of tax, or of any duty, levy or charge, payable to the Commonwealth.
senior AFP member means:
(a) the Commissioner of the Australian Federal Police; or
(b) a Deputy Commissioner of the Australian Federal Police; or
(c) a senior executive AFP employee (within the meaning of the Australian Federal Police Act 1979) who is a member of the Australian Federal Police; or
(d) a member of the Australian Federal Police occupying a position in the Australian Federal Police that is equivalent to or higher than one of the positions mentioned in paragraphs (a), (b) and (c), whether or not a declaration under section 25 of that Act is in force in respect of the person.
substantial adverse effect means an effect that is adverse and not insubstantial, insignificant or trivial.
superior court means:
(a) the High Court; or
(b) the Federal Court of Australia or the Federal Circuit and Family Court of Australia (Division 1); or
(c) the Supreme Court of a State, or the Family Court of Western Australia, when exercising federal jurisdiction; or
(d) subject to subsection (2), the Supreme Court of a Territory (other than the Northern Territory); or
(e) the Supreme Court of the Northern Territory when exercising jurisdiction conferred or vested by an Act of the Parliament.
terrorism‑related proceeding means:
(a) a criminal proceeding for a designated offence; or
(b) a proceeding under the Proceeds of Crime Act 2002 relating to a designated offence; or
(c) a proceeding under Division 104 of the Criminal Code.
torture has the meaning given by subsection 27D(3).
(2) On and after a day fixed by Proclamation:
(a) the Supreme Court of the Australian Capital Territory ceases to be a superior court for the purposes of this Act except so far as it exercises jurisdiction conferred or vested by an Act of the Parliament; and
(b) any other court of the Australian Capital Territory ceases to be an inferior court for the purposes of this Act except so far as it exercises jurisdiction conferred or vested by an Act of the Parliament.
4 References to evidence taken in an examination
A reference in this Act to evidence taken in an examination includes a reference to:
(a) a document produced at the examination; and
(b) answers made to any written interrogatories presented at the examination, whether the answers are made in writing or are made orally and put in writing.
5 External Territories
This Act extends to each external Territory.
6 Act to bind Crown
This Act binds the Crown in all its capacities.
Part 2—Examination of witnesses abroad
Division 1—Proceedings in superior courts
7 Orders for taking evidence abroad
(1) In any proceeding before a superior court, the court may, if it appears in the interests of justice to do so, on the application of a party to the proceeding, make an order, relating to a person outside Australia:
(a) for examination of the person on oath or affirmation at any place outside Australia before a judge of the court, an officer of the court or such other person as the court may appoint; or
(b) for issue of a commission for examination of the person on oath or affirmation at any place outside Australia; or
(c) for issue of a letter of request to the judicial authorities of a foreign country to take the evidence of the person or cause it to be taken.
(2) In deciding whether it is in the interests of justice to make such an order, the matters to which the court is to have regard include the following:
(a) whether the person is willing or able to come to Australia to give evidence in the proceeding;
(b) whether the person will be able to give evidence material to any issue to be tried in the proceeding;
(c) whether, having regard to the interests of the parties to the proceeding, justice will be better served by granting or refusing the order.
8 Directions and requests relating to orders
(1) If a court makes an order of the kind referred to in paragraph 7(1)(a) or (b), the court may, at the time of making the order or at a later time, give such directions as it thinks just relating to the procedure to be followed in relation to the examination, including directions about:
(a) the time, place and manner of the examination; and
(b) any other matter that the court thinks relevant.
(2) If a court makes an order of the kind referred to in paragraph 7(1)(c), the court may include in the order a request about any matter relating to taking that evidence, including any of the following matters:
(a) examination, cross‑examination or re‑examination of the person, whether the person’s evidence is given orally, on affidavit or otherwise;
(b) attendance of the legal representative of each party to the proceeding in question and participation of those persons in the examination in appropriate circumstances;
(c) any matter prescribed by the regulations.
9 Use of evidence taken in an examination
(1) Subject to subsection (2), the court may, on such terms (if any) as it thinks fit, permit a party to the proceeding to tender as evidence in the proceeding:
(a) a person’s evidence taken in an examination held as a result of an order under subsection 7(1); or
(b) a record of that evidence.
(2) Evidence of a person so tendered is not admissible if:
(a) it appears to the court’s satisfaction at the hearing of the proceeding that the person is in Australia and is able to attend the hearing; or
(b) the evidence would not have been admissible had it been adduced at the hearing.
Division 2—Proceedings in the Federal Circuit and Family Court of Australia (Division 2) and inferior courts
9A Orders for taking evidence abroad—Federal Circuit and Family Court of Australia (Division 2)
Child support or family law matters
(1) The Federal Circuit and Family Court of Australia (Division 1) may, on the application of a party to a proceeding before the Federal Circuit and Family Court of Australia (Division 2) in a child support or family law matter, exercise the same power to make an order of the kind referred to in Division 1 as the Federal Circuit and Family Court of Australia (Division 1) has under that Division for the purpose of a proceeding in the Federal Circuit and Family Court of Australia (Division 1).
Matters other than child support or family law matters
(2) The Federal Court of Australia may, on the application of a party to a proceeding before the Federal Circuit and Family Court of Australia (Division 2) in a matter other than a child support or family law matter, exercise the same power to make an order of the kind referred to in Division 1 as the Federal Court of Australia has under that Division for the purpose of a proceeding in the Federal Court of Australia.
Definition
(3) In this section:
child support or family law matter means:
(a) a matter arising under the Family Law Act 1975 or regulations under that Act; or
(b) a matter arising under the Child Support (Assessment) Act 1989 or regulations under that Act; or
(c) a matter arising under the Child Support (Registration and Collection) Act 1988 or regulations under that Act.
10 Orders for taking evidence abroad—inferior courts
(1) The Supreme Court of a State or Territory may, on the application of a party to a proceeding before an inferior court in that State or Territory, exercise the same power to make an order of the kind referred to in Division 1 for the purpose of that proceeding as the Supreme Court has under that Division for the purpose of a proceeding in the Supreme Court.
(2) This section does not apply to a proceeding before a court of summary jurisdiction exercising jurisdiction under the Family Law Act 1975.
11 Orders for taking evidence abroad—family law matters
(1) The appropriate court may, on the application of a party to a proceeding before a court of summary jurisdiction exercising jurisdiction under the Family Law Act 1975, exercise the same power to make an order of the kind referred to in Division 1 for the purpose of that proceeding as the appropriate court has under that Division:
(a) if it is the Federal Circuit and Family Court of Australia (Division 1)—for the purpose of any proceeding before it; or
(b) otherwise—for the purpose of a proceeding before it when it is exercising jurisdiction under the Family Law Act 1975.
(2) In this section:
appropriate court means:
(a) if the proceeding takes place in a State other than Western Australia, or in a Territory other than the Northern Territory, the Territory of Christmas Island or the Territory of Cocos (Keeling) Islands—the Federal Circuit and Family Court of Australia (Division 1); or
(b) if the proceeding takes place in Western Australia, the Territory of Christmas Island or the Territory of Cocos (Keeling) Islands—the Family Court of Western Australia; or
(c) if the proceeding takes place in the Northern Territory—the Supreme Court of the Northern Territory.
12 Use of evidence taken in an examination
(1) Subject to subsection (2), if an order has been made under section 9A, 10 or 11 for the purposes of a proceeding before the Federal Circuit and Family Court of Australia (Division 2) or an inferior court, the court may, on such terms (if any) as it thinks fit, permit a party to the proceeding to tender as evidence in the proceeding:
(a) a person’s evidence taken in an examination held as a result of the order; or
(b) a record of that evidence.
(2) Evidence of a person so tendered is not admissible if:
(a) it appears to the satisfaction of the Federal Circuit and Family Court of Australia (Division 2) or the inferior court, as the case may be, at the hearing of the proceeding that the person is in Australia and is able to attend the hearing; or
(b) the evidence would not have been admissible had it been adduced at the hearing.
Division 3—Subsequent proceedings
13 Directions for use in subsequent proceedings of evidence taken abroad
(1) If, under subsection 10(1), a superior court makes an order in relation to a committal proceeding, it may include in the order a direction that evidence taken outside Australia under the order may, subject to this Division, be tendered in a proceeding that is:
(a) a criminal proceeding that results from the committal proceeding; or
(b) a related civil proceeding.
(2) If, under subsection 7(1) or 10(1), a superior court makes an order in relation to a criminal proceeding (other than a committal proceeding), it may include in the order a direction that evidence taken outside Australia under the order may, subject to this Division, be tendered in a proceeding that is a related civil proceeding.
14 Use of that evidence in subsequent proceedings
(1) This section applies to a proceeding to which a direction, included in an order under subsection 7(1) or 10(1), relates.
(2) Subject to subsection (3), the court before which the proceeding takes place may, on such terms (if any) as it thinks fit, permit a party to the proceeding to tender as evidence in the proceeding:
(a) a person’s evidence taken in an examination held as a result of the order under subsection 7(1) or 10(1); or
(b) a record of that evidence.
(3) A person’s evidence so tendered is not admissible if:
(a) it appears to the court’s satisfaction at the hearing of the subsequent proceeding that the person is in Australia and is able to attend the hearing; or
(b) the evidence would not have been admissible had it been adduced at the hearing of the subsequent proceeding.
Division 4—Miscellaneous
15 Discretion to exclude evidence
(1) This section applies to any civil proceeding or criminal proceeding in a superior court, the Federal Circuit and Family Court of Australia (Division 2) or an inferior court.
(2) If it is in the interests of justice to do so, a court may exclude from the proceeding evidence obtained under this Part, even if it is otherwise admissible.
(3) This Part does not affect a court’s power under any other law to exclude, or limit the use of, evidence:
(a) because it has been obtained unlawfully or improperly; or
(b) because it would, if admitted, operate unfairly or be unfairly prejudicial to a party; or
(c) for any other reason.
16 Variation or revocation of orders
(1) A superior court may vary or revoke an order made by the court under section 7, 9A, 10 or 11.
(2) The power to vary an order includes the power to:
(a) include in the order a direction under section 13; or
(b) vary or revoke a direction under section 13 that is included in the order.
(3) If an order under section 7 or 10 that includes a direction under section 13 is revoked, the direction under section 13 is taken to have been revoked at the same time.
17 Courts may exercise certain powers in chambers
A court may exercise its power under section 7, 9A, 10, 11, 13 or 16 in chambers.
18 Operation of other laws
This Part is not intended to exclude or limit the operation of any Australian law, or of any rule or regulation made under such a law, that provides for the examination of witnesses outside Australia for the purpose of a proceeding in Australia.
19 Rules of court
(1) The power to make rules regulating the practice and procedure of a superior court extends, for the purpose of regulating proceedings brought under this Part in or before that court, to making any rules:
(a) prescribing all matters necessary or convenient to be prescribed for carrying out or giving effect to this Part; and
(b) in particular, prescribing matters relating to the practice and procedure of that superior court in proceedings for making an order under Division 1 or 2.
(2) Rules so made must not be inconsistent with this Act or with regulations made under section 46.
(3) This section does not affect any power to make rules under any other law.
Part 3—Use of foreign material in criminal and related civil proceedings
Division 1—Preliminary
20 Proceedings to which this Part applies
(1) This Part applies to a proceeding, in any Australian court, that is:
(a) a criminal proceeding for an offence against the law of the Commonwealth; or
(b) a related civil proceeding; or
(c) a proceeding under a proceeds of crime law.
(1A) However, this Part does not apply to a terrorism‑related proceeding. This does not prevent testimony or any documents or things from being foreign material for the purposes of Part 3A.
Note: Part 3A deals with use of foreign material in terrorism‑related proceedings.
(2) This Part also applies to a proceeding, in any court of a State or Territory specified in the regulations, that is:
(a) a criminal proceeding for an offence against the law of a State or Territory; or
(b) a related civil proceeding of a kind specified in the regulations in respect of a State or Territory; or
(c) a proceeding under a law that is a corresponding law within the meaning of a proceeds of crime law; or
(d) a proceeding under a law of a Territory (other than the Australian Capital Territory or the Northern Territory) that is prescribed by the regulations as a law that corresponds to a proceeds of crime law.
Division 2—Obtaining foreign material
21 Requests for foreign material
This Part applies to testimony, and any documents or things produced by or with such testimony, obtained as a result of a request made by or on behalf of the Attorney‑General to a foreign country for the testimony of a person, and any documents or things produced by or with such testimony, to be made available.
22 Requirements for testimony
(1) The testimony must have been taken:
(a) on oath or affirmation; or
(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
(b) under such caution or admonition as would be accepted, by courts in the foreign country concerned, for the purposes of giving testimony in proceedings before those courts.
(2) The testimony must purport to be signed or certified by:
(a) a judge, magistrate or officer in or of the foreign country concerned; or
(b) a person who is authorised, by or under a law of the foreign country concerned, to:
(i) administer an oath or affirmation; or
(ii) impose an obligation on the person giving the testimony to tell the truth.
23 Form of testimony
(1) The testimony may be reduced to writing or be recorded on a tape, disk or other device from which sounds or images are capable of being reproduced.
(2) The testimony need not:
(a) be in the form of an affidavit; or
(b) constitute a transcript of a proceeding in a foreign court.
Division 3—Using foreign material
24 Foreign material may be adduced as evidence
(1) Subject to this section, foreign material may be adduced in a proceeding to which this Part applies.
(2) The foreign material is not to be adduced as evidence if:
(a) 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; or
(b) the evidence would not have been admissible had it been adduced from the person at the hearing.
(3) Paragraph (2)(b) does not apply if:
(a) the foreign material is a business record; and
(b) the only reason why the evidence would not have been admissible had it been adduced from the person at the hearing is that an Australian law relating to hearsay evidence (however described) would have applied to the evidence.
(4) For the purpose of determining whether foreign material is a business record, and may be adduced as evidence, the court may:
(a) examine the foreign material; and
(b) draw any reasonable inference from the form and contents of the foreign material as well as from any other matters from which inferences may properly be drawn.
25 Discretion to prevent foreign material being adduced—general
(1) The court may direct that foreign material not be adduced as evidence if it appears to the court’s satisfaction that, having regard to the interests of the parties to the proceeding, justice would be better served if the foreign material were not adduced as evidence.
(2) Without limiting the matters that the court may take into account in deciding whether to give such a direction, it must take into account:
(a) the extent to which the foreign material provides evidence that would not otherwise be available; and
(b) the probative value of the foreign material with respect to any issue that is likely to be determined in the proceeding; and
(c) the extent to which statements contained in the foreign material could, at the time they were made, be challenged by questioning the persons who made them; and
(d) whether exclusion of the foreign material would cause undue expense or delay; and
(e) whether exclusion of the foreign material would unfairly prejudice any party to the proceeding.
Division 4—Miscellaneous
26 Evidentiary certificates relating to requests made to foreign countries
(1) The Attorney‑General may issue a written certificate signed by the Attorney‑General certifying that specified documents or things were obtained as a result of a request made to a foreign country by or on behalf of the Attorney‑General.
(2) In any proceeding to which this Part applies, a certificate under subsection (1) is prima facie evidence of the matters stated in the certificate.
27 Operation of other laws
This Part does not limit the ways in which a matter may be proved, or evidence may be adduced, under this Act (other than this Part) or any other Australian law.
Part 3A—Use of foreign material and foreign government material in terrorism‑related proceedings
27A Foreign material may be adduced as evidence
(1) Foreign material may be adduced in a terrorism‑related proceeding.
Note 1: The court has a discretion to direct that foreign material not be adduced if it would have a substantial adverse effect on the right of a party to the proceeding to receive a fair hearing (see section 27C).
Note 2: Section 27D deals with admissibility of foreign material adduced.
(2) However, 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.
27AA Evidentiary certificates relating to requests made to foreign countries
(1) The Attorney‑General may issue a written certificate signed by the Attorney‑General certifying that specified documents or things were obtained as a result of a request made to a foreign country by or on behalf of the Attorney‑General.
(2) In any terrorism‑related proceeding, a certificate under subsection (1) is prima facie evidence of the matters stated in the certificate.
27B Foreign government material may be adduced as evidence
Adducing foreign government material
(1) Foreign government material may be adduced in a terrorism‑related proceeding if the material is:
(a) annexed to a written statement by a senior AFP member that:
(i) is verified on oath or affirmation by the member; and
(ii) meets the requirements in subsection (2); and
(b) accompanied by a certificate of the Attorney‑General given under subsection (3).
Note 1: The court has a discretion to direct that foreign government material not be adduced if it would have a substantial adverse effect on the right of a party to the proceeding to receive a fair hearing (see section 27C).
Note 2: Section 27D deals with admissibility of foreign government material adduced.
Content of statement by senior AFP member
(2) A statement by a senior AFP member for the purposes of paragraph (1)(a) must:
(a) relate only to foreign government material annexed to the statement; and
(b) state what the material is; and
(c) state, to the best of the senior AFP member’s knowledge:
(i) how the material, and any information contained in the material, was obtained by the first foreign authority to obtain or produce the material or information; and
(ii) each step in the process by which the material or information came from that foreign authority into the possession of the Australian Federal Police.
Attorney‑General’s certificate
(3) The Attorney‑General may certify, in a form prescribed under subsection (4), that he or she is satisfied that it was not practicable to obtain the foreign government material or the information in the foreign government material as foreign material.
(4) The Attorney‑General may by legislative instrument prescribe a form for a certificate to be given under subsection (3).
(5) A certificate given under subsection (3) is not a legislative instrument.
27C Discretion to prevent material being adduced
(1) This section applies in relation to a terrorism‑related proceeding described in an item of the following table if a person described in that item seeks to adduce foreign material or foreign government material in the proceeding.
| Persons seeking to adduce material in proceedings |
| Item | Proceeding | Person seeking to adduce material |
| 1 | Criminal proceeding for a designated offence | Prosecutor |
| 2 | Proceeding under the Proceeds of Crime Act 2002 relating to a designated offence | The responsible authority under that Act in relation to the proceeding |
| 3 | Proceeding under Division 104 of the Criminal Code | A member of the Australian Federal Police or a special member (within the meaning of the Australian Federal Police Act 1979) |
(2) The court may direct that the material not be adduced as evidence in the proceeding if the court is satisfied that adducing the material would have a substantial adverse effect on the right of another party to the proceeding to receive a fair hearing.
27D Admissibility of material adduced
(1) The following are admissible in a terrorism‑related proceeding, subject to subsection (2) but despite any other Australian law about evidence:
(a) foreign material adduced under subsection 27A(1) in the proceeding;
(b) foreign government material adduced under subsection 27B(1) in the proceeding;
(c) the statement to which the foreign government material was annexed as described in paragraph 27B(1)(a);
(d) the certificate that accompanied the foreign government material as described in paragraph 27B(1)(b).
Exception to admissibility
(2) Foreign material or foreign government material is not admissible if the court is satisfied that the material, or information contained in the material, was obtained directly as a result of torture or duress.
(3) In subsection (2):
duress means a threat that:
(a) is made explicitly or implicitly to a person; and
(b) is a threat to imminently cause one or both of the following unless material or information is provided:
(i) death or serious injury of the person, a member of the person’s family or a third party;
(ii) damage to, or loss by the person of, the person’s significant assets; and
(c) is a threat to which a reasonable person would respond by providing the material or information.
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act that the person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the International Covenant on Civil and Political Rights done at New York on 16 December 1966;
but does not include an act or omission arising only from, inherent in or incidental to lawful sanctions that are not inconsistent with the Articles of the Covenant.
Note: The International Covenant on Civil and Political Rights is in Australian Treaty Series 1980 No. 23 ([1980] ATS 23) and could in 2014 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
(4) If foreign government material is not admissible, neither of the following is admissible, so far as it relates to the inadmissible foreign government material:
(a) the statement described in paragraph (1)(c);
(b) the certificate described in paragraph (1)(d).
27DA Warning and informing jury
(1) If foreign material or foreign government material is admitted in a terrorism‑related proceeding conducted before a jury, and a party to the proceeding so requests, the judge is to:
(a) warn the jury that the material may be unreliable; and
(b) inform the jury of matters that may cause it to be unreliable; and
(c) warn the jury of the need for caution in determining whether to accept the material and the weight to be given to it.
(2) The judge need not comply with subsection (1) if there are good reasons for not doing so.
(3) It is not necessary that a particular form of words be used in giving the warning or information.
(4) This section does not affect any other power of the judge to give a warning to, or to inform, the jury.
27E Operation of other laws
This Part does not limit the ways in which a matter may be proved, or evidence may be adduced, under this Act (other than this Part) or any other Australian law.
Part 4—Use of foreign material and records of foreign business authorities in certain civil proceedings
Division 1—Preliminary
28 Proceedings to which this Part applies
This Part applies to a proceeding, in an Australian court, that:
(a) is a civil proceeding other than a related civil proceeding; and
(b) is a proceeding under the Corporations Act 2001 or the Australian Securities and Investments Commission Act 2001 in which ASIC is a party.
Division 2—Obtaining foreign material
29 Requests for foreign material
This Part applies to testimony, and any documents or things produced by or with such testimony, obtained as the result of a request by ASIC to a foreign business authority for the testimony of a person, and any documents or things produced by or with such testimony, to be made available.
30 Requirements for testimony
(1) The testimony must have been taken:
(a) on oath or affirmation; or
(b) under such caution or admonition as would be accepted, by courts in the foreign country concerned, for the purposes of giving testimony in proceedings before those courts.
(2) The testimony must:
(a) if the foreign business authority is an individual—purport to be signed or certified by that individual; or
(b) otherwise—purport to be signed by an office holder of the foreign business authority, and purport to bear an official or public seal of the foreign business authority or an office holder of the foreign business authority.
31 Form of testimony
(1) The testimony may be reduced to writing or be recorded on an audio or video tape.
(2) The testimony need not:
(a) be in the form of an affidavit; or
(b) constitute a transcript of a proceeding in a foreign court.
Division 3—Using foreign material
32 Foreign material may be adduced as evidence
(1) Subject to subsection (2), foreign material may be adduced in a proceeding to which this Part applies.
(2) The foreign material is not to be adduced as evidence if:
(a) 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; or
(b) the evidence would not have been admissible had it been adduced from the person at the hearing.
33 Discretion to prevent foreign material being adduced
(1) The court may direct that foreign material not be adduced as evidence if it appears to the court’s satisfaction that, having regard to the interests of the parties to the proceeding, justice would be better served if the foreign material were not adduced as evidence.
(2) Without limiting the matters that the court may take into account in deciding whether to give such a direction, it must take into account:
(a) the extent to which the foreign material provides evidence that would not otherwise be available; and
(b) the probative value of the foreign material with respect to any issue that is likely to be determined in the proceeding; and
(c) the extent to which statements contained in the foreign material could, at the time they were made, be challenged by questioning the persons who made them; and
(d) whether exclusion of the foreign material would cause undue expense or delay; and
(e) whether exclusion of the foreign material would unfairly prejudice any party to the proceeding.
Division 4—Records of foreign business authorities
34 Evidence of records of foreign business authorities
Evidence of a record of a foreign business authority may be adduced in a proceeding to which this Part applies by producing a document that:
(a) purports to be a copy of, or an extract from or summary of, the record; and
(b) purports to have been certified by:
(i) if the foreign business authority is an individual—that individual; or
(ii) otherwise—an office holder of the foreign business authority;
to be a true copy, extract or summary, as the case may be.
Division 5—Miscellaneous
35 Evidentiary certificates relating to requests made to foreign business authorities
(1) The Chairperson of ASIC may issue a written certificate signed by the Chairperson of ASIC certifying that specified documents or things were obtained as a result of a request made to a foreign business authority by ASIC.
(2) The Deputy Chairperson of ASIC may issue a written certificate signed by the Deputy Chairperson of ASIC certifying that specified documents or things were obtained as a result of a request made to a foreign business authority by ASIC.
(3) In any proceeding to which this Part applies, a certificate under subsection (1) or (2) is prima facie evidence of the matters stated in the certificate.
36 Operation of other laws
This Part does not limit the ways in which a matter may be proved, or evidence may be adduced, under this Act (other than this Part) or any other Australian law.
Part 5—Authenticating foreign public documents
37 Certificates attached to foreign public documents
(1) This section applies in relation to a foreign public document that has placed on it or annexed to it a certificate issued under the Convention.
(2) In a proceeding in any Australian court, and for the purposes of any person performing a function or exercising a power under an Australian law, the certificate is evidence of:
(a) the authenticity of the signature on the foreign public document; and
(b) the capacity in which the person signing the foreign public document has acted; and
(c) where appropriate, the identity of the seal or stamp that the foreign public document bears.
(3) Subject to section 39, an Australian court, or a person performing a function or exercising a power under an Australian law, must not require any formality other than the certificate in order to certify:
(a) the authenticity of the signature on the foreign public document; and
(b) the capacity in which the person signing the foreign public document has acted; and
(c) where appropriate, the identity of the seal or stamp that the foreign public document bears.
38 Foreign public documents not requiring legalisation
If a foreign public document is not subject to a requirement of legalisation, an Australian court, or a person performing a function or exercising a power under an Australian law, must not require a certificate issued under the Convention to be placed on or annexed to the foreign public document in order to certify:
(a) the authenticity of the signature on the foreign public document; and
(b) the capacity in which the person signing the foreign public document has acted; and
(c) where appropriate, the identity of the seal or stamp that the foreign public document bears.
39 Lesser formalities for authentication etc.
This Part does not prevent an Australian court, or a person exercising a function or power under an Australian law, requiring or accepting as evidence of:
(a) the authenticity of the signature on a foreign public document; or
(b) the capacity in which the person signing a foreign public document has acted; or
(c) where appropriate, the identity of the seal or stamp that a foreign public document bears;
a lesser formality than a certificate, issued under the Convention, placed on or annexed to the foreign public document.
Part 6—Taking evidence for proceedings in foreign courts
40 Application of this Part
(1) This Part applies in relation to any proceedings before an Australian court that are proceedings for the taking of evidence for use in proceedings instituted in or before a foreign court.
(2) The Attorney‑General’s power to make an order under section 42 may only be exercised in relation to proceedings mentioned in subsection (1).
(3) In this section:
authority means any person or body authorised to take or receive evidence:
(a) whether on behalf of a court or otherwise; or
(b) whether or not the person or body is empowered to require the answering of questions or the production of documents.
foreign court means any court, or authority, of a foreign country or a part of such a country.
41 Exercise of powers under this Part
The Attorney‑General must not exercise a power under this Part unless he or she is satisfied that it is desirable to do so for the purpose of preventing prejudice to Australia’s security.
42 Orders
(1) The Attorney‑General may make a written order prohibiting one or more of the following acts:
(a) the production of a document;
(b) the production of a thing;
(c) the giving of evidence or information, whether in relation to the contents of a document or otherwise.
(2) An order under this section may:
(a) be directed to a particular person, to a class of persons or to persons generally; and
(b) relate to a particular proceeding, to a class of proceedings or to proceedings generally; and
(c) relate to a particular document, thing, evidence or information or to a class of documents, things, evidence or information.
43 Copies etc. of documents
(1) If the Attorney‑General makes an order under section 42 that has effect in relation to a document, the order also has effect in relation to any copy, extract or summary of that document that is in Australia as if the copy, extract or summary were the document.
(2) Subsection (1) applies to a copy, extract or summary that is in existence at any time while the order concerned remains in force.
44 Intervention
(1) The Attorney‑General may, on behalf of the Commonwealth, intervene in proceedings to which this Part applies for the purpose of preventing a contravention of an order made under section 42.
(2) If the Attorney‑General intervenes in proceedings before a court under this section:
(a) a certificate by the Attorney‑General stating that the doing of an act prohibited by an order made under section 42 would be prejudicial to Australia’s security is conclusive evidence of that fact; and
(b) the court may, in the proceedings, make such order as to costs against the Commonwealth as the court thinks fit.
45 Injunctions
If:
(a) an order made under section 42 prohibits the production of a document or thing or the giving of evidence or information; and
(b) the Federal Court is satisfied, on application by the Attorney‑General, that there are reasonable grounds for believing that the person having possession or control of the document, thing, evidence or information might contravene the order;
the Federal Court may grant an injunction restraining that person from dealing with the document, thing, evidence or information in a manner specified in the injunction or restraining that person from dealing with the document, thing, evidence or information except in a manner specified in the injunction.
Part 7—Miscellaneous
46 Regulations
The Governor‑General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed by carrying out or giving effect to this Act;
and, in particular, may make regulations relating to the practice and procedure of a superior court in proceedings for making an order under section 7, 9A, 10 or 11.