Foreign Evidence Amendment Act 2010

No. 55, 2010

An Act to amend the Foreign Evidence Act 1994, and for related purposes

[Assented to 3 June 2010]

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Foreign Evidence Amendment Act 2010.

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Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.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 1—Amendments

Part 1—Amendments

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

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 At the end of section 24

Add:

(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.

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 2—Application and transitional provisions

15 Application of amendment made by item 7

The amendment made by item 7 of this Schedule applies 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.

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).