Review of the Evidence Act 1958 (Vic) and
Review of the Role and Appointment of Public Notaries

Chapter One

1.1 FORMAL MATTERS

These matters are uncontroversial and are found in all types of legislation.

1.2 APPLICATION OF THIS ACT

Section 4

The Act, as a Commonwealth Act, extends to proceedings in a federal court or an ACT court (the New South Wales Act extends to New South Wales courts) and specifies the proceedings to which the provisions of the Act apply. The expressions "federal court" or "ACT court" include a person or body required to apply the laws of evidence. It should be noted, however, that the definition of "court" in s 3(1) of the Evidence Act 1958 (Vic) is drawn in terms of legal proceedings including "a person acting judicially".[11]

Submissions were received by the Committee from a number of administrative bodies, or persons speaking for them, namely, the Residential Tenancies Tribunal[12] (Mr Richard Wright), the Guardianship and Administration Board[13] (Mr Lance Pilgrim), the Employee Relations Commission of Victoria[14] (Ms S. Zietz), the Administrative Appeals Tribunal of Victoria[15] (Judge Warren Fagan), the Office of Fair Trading and Business Affairs[16] (Mr Malcolm Walter) and the Residential Tenancies and Small Claims Tribunal[17] (Ms Jacky Kefford). Those submissions referred to the fact that the administrative bodies in question were not bound by the rules of evidence.

The Act will not require such administrative bodies to apply the provisions of the Act. It should be noted, however, that such bodies are bound to accord procedural fairness and this may mean that a tribunal should, wherever possible, apply the rules of evidence.[18] This is true of arbitration under the Commercial Arbitration Act 1984 (Vic).[19]

The Committee perceives no concern in any of the submissions received which works against the adoption of s 4 of the Act with amendments to reflect the fact that the legislation is to apply to Victoria. There is nothing in s 4, or in the Act generally, which will impose any obligation upon administrative bodies who are presently not bound to apply the laws of evidence to do so.

Section 5

This section extends the provisions listed in the table to the section, to an "Australian court" defined to cover all courts in Australia. It also extends the definition to persons and bodies that take evidence or are required to take evidence. This was referred to in Mr Walter's submission.[20] There is no equivalent provision in New South Wales. There would appear to be no reason to adopt the Commonwealth provision in Victoria.

Section 6

This applies the Act to the Commonwealth's external Territories. There is no need for the provision in any Victorian legislation.

Section 7

This provides that the Act binds the Crown in all its capacities. In their submission[21], Judges Mullaly and Kelly of the County Court noted that it was a matter of policy as to whether this should be adopted.

It is by no means unusual in modern legislation that express provision be made that the legislation bind the Crown. The Committee could see no basis upon which the Act should not extend to the Crown. Moreover, as prosecutions are taken in the name of the Crown, the Act should certainly bind the Crown.

Section 8

Section 8 of the Evidence Act 1995 (NSW) provides that:-

"The Act does not affect the operation of any other Act."

Section 8 of the Commonwealth Act is drafted to take account of the need to preserve Commonwealth legislative provisions which have Australia- wide application such as provisions of the Judiciary Act 1903 (Cth). This is not applicable to Victoria which should follow the New South Wales model.

RECOMMENDATION 2

The Committee recommends that section 8 of the Evidence Act 1995 (NSW) be enacted in Victoria. Such a provision will preserve the operation of any other legislation. Whilst the question of the repeal and preservation of existing legislation is ultimately a matter for Chief Parliamentary Counsel, the Committee recommends that the following provisions from the Evidence Act 1958 (Vic) and the Crimes Act 1958 (Vic) be retained and moved to another Act where appropriate: - See Recommendations 2(a)-(s) contained in the Report.

Evidence on Commission

The Evidence (Consequential and Other Provisions) Act 1995 (NSW) repeals three Evidence Acts, including the principal Act, the Evidence Act 1898. The New South Wales Parliament has enacted an Evidence on Commission Act 1995. The current provisions dealing with the taking of evidence on commission are found in Part 1, Divisions 1, 1A, 1B and 1C of the Evidence Act 1958 (Vic). Those provisions will need to be uplifted and moved to an Evidence on Commission Act.

RECOMMENDATION 2(a)

The Committee recommends that Part 1, Divisions 1, 1A, 1B and 1C ("Evidence on Commission") of the Evidence Act 1958 (Vic) be retained and moved to another Act where appropriate.

There will be a need, moreover, for Parliamentary Counsel to have regard to the Evidence (Consequential and Other Provisions) Act 1995 (NSW) from the point of view of preservation of specific legislative provisions and transitional matters. Moreover, existing Victorian Statutes refer to the Evidence Act 1958 (Vic) (See, for example, s 100(2) of the Employee Relations Act 1992 (Vic) referred to in Ms Zietz's submission.)[22] That problem is dealt with in New South Wales by the Evidence (Consequential and Other Provisions) Act 1995.

Boards and Commissions

Mr Perry, the Ombudsman, in his submission,[23] desired the retention of Part 1 Division 5 of the Evidence Act 1958 (Vic) ("Boards Appointed and Commissions Issued by the Governor in Council"). On the assumption that these provisions are to be retained in their present form, they will need to be uplifted and either enacted separately or as part of some other legislation.

RECOMMENDATION 2(b)

The Committee recommends that Part 1, Division 5 ("Royal Commissions") of the Evidence Act 1958 (Vic) be retained and moved to another Act where appropriate.

Remaining provisions of Part 1

The remaining provisions of Part 1, which are but vaguely connected with evidence or the actual giving of evidence, will have to be uplifted and moved elsewhere.

RECOMMENDATION 2(c)

The Committee recommends that the remaining provisions of Part 1 ("The means of obtaining evidence") of the Evidence Act 1958 (Vic) be retained and moved to another Act where appropriate.

"Own case" privilege

Section 32A which abrogates the "own case" privilege rule needs to be preserved. In New South Wales the privilege is dealt with through the Court Rules: see NSW Supreme Court Rules Pt 23 r 6A. Indeed, Victoria, Queensland, the ACT and Tasmania are the only jurisdictions which deal with the privilege by legislation.

RECOMMENDATION 2(d)

The Committee recommends that section 32A ("Documents relating solely to party's case") of the Evidence Act 1958 (Vic) be retained and moved to another Act where appropriate.

*Note that Recommendations 2(e)(f)(g) and (h) are found later in the Report.

Examination and cross-examination of witnesses

It has been pointed out in the Report at page 26 that ss 37B, 37C and 37D need to be retained and uplifted, preferably to the Crimes Act 1958. The Committee's view is that s 41 which prohibits the publication of prohibited questions should be re-enacted in other legislation but notes that currently there is no penalty for breach of the provision.

RECOMMENDATION 2(i)

The Committee recommends that section 41 ("Prohibited questions not to be published") of the Evidence Act 1958 (Vic) be retained and moved to another Act where appropriate.

Part 3 of the Evidence Act 1958 (Vic)

There appears to be nothing in Part 3 which requires preservation of the provisions of that Part. Division 4 of Part 3 dealing with Australasian documents is adequately covered and expanded by ss 153-9 of the Evidence Act 1995 (Cth). Those sections (ss 68 and 69) dealing with documents relating to companies are adequately dealt with under the provisions relating to documents and, in particular, business records. Division 5 contains a number of provisions which, whilst arguably covered by the Evidence Act (Cth) might best, by way of abundant caution, be retained.

It is suggested that the Parliamentary Counsel examine these provisions carefully. Certainly ss 70-73 would appear to fall within ss 153-9 of the Evidence Act 1995 (Cth). Similar observation might be made in respect of Division 5A.

RECOMMENDATION 2(j)

The Committee recommends that Part 3, Division 5 ("Further provisions relating to Victorian documents") be retained and moved to another Act where appropriate.

RECOMMENDATION 2(k)

The Committee recommends that Part 3, Division 5A ("Scientific experiments" ) be retained and moved to another Act where appropriate.

Part 4 Oaths, Affirmations, Affidavits and Declarations

Part 4 deals with Oaths, Affirmations, Affidavits and Declarations. This should be uplifted and retained perhaps as an Oaths Act. Note that the New South Wales Parliament has not enacted s 186 of the Evidence Act 1995 (Cth). Part 5 falls to be dealt with in the same way as does Part 7 which is concerned with Offences for False Oaths. The terms of reference required the Committee to consider the question of whether any changes should be made in respect of the witnessing of documents. The Committee has considered the matter in detail in Chapters 10 to 13.

RECOMMENDATION 2(l)

The Committee recommends that Part 4 ("Oaths, affirmations, affidavits and declarations") of the Evidence Act 1958 (Vic) be retained and moved to another Act where appropriate.

RECOMMENDATION 2(m)

The Committee recommends that Part 5 ("Attestations, verifications, acknowledgments, notarial acts etc.") of the Evidence Act 1958 (Vic) be retained and moved to another Act where appropriate.

RECOMMENDATION 2(o)

The Committee recommends that Part 7 ("Offences, perjury, false certificates etc.") of the Evidence Act 1958 be retained and moved to another Act where appropriate.

Other Parts of the Evidence Act 1958 (Vic)

Part 6 dealing with recording of evidence appears to require retention. Part 8 and in particular s 149A dealing with admissions of fact in criminal proceedings also appear to require retention.

RECOMMENDATION 2(n)

The Committee recommends that Part 6 ("Recording of evidence") of the Evidence Act 1958 (Vic) be retained and moved to another Act where appropriate.

RECOMMENDATION 2(p)

The Committee recommends that Part 8 ("Miscellaneous") and in particular section 149A ("Admissions of fact in criminal proceedings") of the Evidence Act 1958 (Vic) be retained and moved to another Act where appropriate.

Crimes Act 1958 (Vic)

With regard to the Crimes Act 1958, the Committee has recommended the retention of s 61 dealing with jury warnings. Ss 399 and 400 should be repealed.

RECOMMENDATION 4

The Committee recommends the repeal of Sections 399 ("The accused, husbands and wives as witnesses for the defence; evidence of character of accused") and 400 ("Wife or husband etc. of the accused to be competent and compellable witnesses") of the Crimes Act 1958 (Vic).

General

The question of what statutory provisions are to be retained (and where) and repealed is essentially a matter for Parliamentary Counsel. The purpose of this document is to draw attention to a number of provisions which require consideration.

Regulations

The Committee would also point out here that there will be a need for regulations to deal with some of the more `mechanistic' matters which need to be dealt with such as notices and certificates given under the Act. Regulations have been made by the Commonwealth and New South Wales.

RECOMMENDATION 3

The Committee recommends that subject to Recommendation 2, the Evidence Act 1958 (Vic) be repealed.

Last update 19/8/99 ©Parliament of Victoria