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Evidence Act Amendments

The Federal Attorney General Robert McClelland has introduced a bill to amend the Evidence Act

The Federal Attorney General Robert McClelland has introduced a bill to amend the Evidence Act.  The bill implements the majority of the recommendations made by the Australian, New South Wales and Victorian Law Reform Commissions in their 2006 inquiry into the operation of the uniform Evidence Acts. 
The amendments are largely technical and do not include provisions implementing a general confidential relationships privilege or the provisions extending client legal privilege and public interest immunity to pre-trial proceedings as the government is currently reviewing the issue.
Key changes include:
  • the hearsay rule - guidance on the definition of hearsay evidence, to clarify the operation of the section 60 so that expert opinion can be used about the competence of a witness and to provide a new exception to the credibility rule where a person has specialised knowledge based on the person's training, study or experience
  • credibility of witnesses - to ensure that evidence which is relevant both to credibility and a fact in issue, but not admissible for the latter purpose, is subject to the same rules as other credibility evidence; and to enable evidence to be adduced with the leave of the court to rebut denials and non-admissions in cross-examination
  • compellability provisions - to ensure same-sex couples are treated in the same manner as de facto spouses
  • hearsay and opinion rules - to create a new exception for evidence/opinion given by a member of an Aboriginal or Torres Strait Islander group about traditional laws and customs
  • advance rulings on evidentiary issues - the court has the power to make an advance ruling or finding in relation to any evidentiary issue
  • the manner and form of questioning witnesses - to enable a court on its own motion to direct that a witness give evidence wholly or partly in narrative form and to make further provision with respect to the improper questioning of witnesses in cross-examination in civil and criminal proceedings.


question about proving you are in a same sex realationship, how do you prove that you are a legitimate defacto.  i have heard of people who say they have been in a same sex realationship with another party for long and complex reason and they couldnt prove it

yup, that sounds about right to me, evidence is great!!!!! i have


Han Solo routine "We're all fine here, thanks. How are you?" *weapons fire* "It was a boring conversation anyway!"
In theory, according to Part12A (Child related proceedings) the Court is to conduct proceedings with as little formality as possible;
"69ZN(7)  The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible."
This is reinforced in the following sections;

69ZT(1)  [Provisions of the Evidence Act which do not apply to child-related proceedings]
These provisions of the Evidence Act 1995 do not apply to child-related proceedings:
(a) Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about giving evidence, examination in chief, re-examination and cross-examination), other than sections 26, 30, 36 and 41;
Note: Section 26 is about the court's control over questioning of witnesses. Section 30 is about interpreters. Section 36 relates to examination of a person without subpoena or other process. Section 41 is about improper questions.
(b) Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections);
© Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).
69ZT(2)  [Court may give weight to evidence]
The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1).
69ZT(3)  [Where court may apply Divisions referred to in s 69ZT(1)]
Despite subsection (1), the court may decide to apply one or more of the provisions of a Division or Part mentioned in that subsection to an issue in the proceedings, if:
(a) the court is satisfied that the circumstances are exceptional; and
(b) the court has taken into account (in addition to any other matters the court thinks relevant):
(i) the importance of the evidence in the proceedings; and
(ii) the nature of the subject matter of the proceedings; and
(iii) the probative value of the evidence; and
(iv) the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.
69ZT(4)  [Court may give weight to evidence admitted as a result of applying s 69ZT(1)]
If the court decides to apply a provision of a Division or Part mentioned in subsection (1) to an issue in the proceedings, the court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of the provision applying."

Notwithstanding s 69ZT, you should always take objection to inadmissible evidence, preferrably in writing. Best practice is to serve a list prior to the hearing and invite the other party to allow the objection or not. The list can then be tendered at the start of the trial and the Judge or FM can rule on the disputed objections, or simply invoke s 69ZT and use their discretion by giving the technically inadmissible evidence the weight it deserves. Different Judges and FMs adopt different practice.
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