Senate

Explanatory Memorandum

(Circulated by authority of the Attorney General, Senator the Hon George Brandis QC)

SCHEDULE 5-EVIDENCE

GENERAL OUTLINE

205. Schedule 5 will make amendments to the Evidence Act 1995.

206. Part 1 of Schedule 5 contains amendments that will mirror minor amendments to the Model Uniform Evidence Bill as endorsed by the then Standing Committee of Attorneys-General (SCAG) in May 2010 and relate to self-incrimination certificates.

207. Part 2 of Schedule 5 contains amendments that will remove all references in the Act to the application of its provisions to the Australian Capital Territory (ACT). Following the commencement of the Evidence Act 2011 (ACT) on 1 March 2012, it was proclaimed on 9 February 2012 that 1 March 2012 was the day on which the provisions of the Commonwealth Evidence Act (with some exceptions) ceased to apply to all proceedings in an ACT court. As the Proclamation made references to the application of the Commonwealth Evidence Act to the ACT obsolete, these references will be removed in accordance with clearer Commonwealth laws principles.

208. Part 3 of Schedule 5 contains amendments that will remove all notes in the Evidence Act which indicate where it differs from the evidence legislation of New South Wales. These notes will be replaced with a table setting out the differences between the Commonwealth and the evidence legislation of States and Territories whose evidence legislation is based on the Model Uniform Evidence Bill. The table is included at Attachment B, and is a point in time reference. Updates to the table will be available on the Attorney-General's Department website. The table will have no substantive legal effect but will assist readers where differences in evidence law exist.

209. Part 4 of Schedule 5 will contain other miscellaneous amendments. One amendment will mirror minor amendments to the Model Uniform Evidence Bill as endorsed by the then Standing Committee of Attorneys-General in May 2010 and relates to the definition of 'unavailability of persons'. A minor amendment to the title of section 31 of the Evidence Act for consistency with the terminology used in the body of the section is also included.

PART 1-PRIVILEGE IN RESPECT OF SELF-INCRIMINATION

Evidence Act 1995 privilege

Item 1: Subsection 128(3)

210. This item will amend subsection 128(3) to clarify that the privilege against self-incrimination operates subject to subsection 128(4), which outlines circumstances where a court may require a person to give evidence.

211. This amendment will ensure consistency with the Model Uniform Evidence Bill which was amended by the then Standing Committee of Attorneys-General in May 2010.

Item 2: Subsection 128(3)

212. This item will amend subsection 128(3) to provide that a court is not to require a witness to give particular evidence if the court determines that that particular evidence is self-incriminating under subsections 128(1) and (2).

213. The amendment will ensure consistency with the Model Uniform Evidence Bill which was amended by the then Standing Committee of Attorneys-General in May 2010.

214. The amendment will also clarify that the court must inform the witness of certain matters before the witness gives self-incriminating evidence (whether voluntarily or after being required to do so under subsection 128(4)). These matters relate to how the privilege against self-incrimination works, when self-incrimination certificates will be given and the effect of such a certificate.

Item 3: At the end of section 128A

215. This item will amend the Evidence Act 1995 so that a self-incrimination certificate issued under a prescribed State or Territory provision will be recognised in federal courts as if it had been issued under section 128A of the Evidence Act.

216. Section 128A provides a similar certification process to that in section 128, for dealing with objections on the grounds of self-incrimination made by a person who is subject to a search order (Anton Pillar) or a freezing order (Mareva) in civil proceedings, other than under proceeds of crime legislation. Under these sections, evidence of information disclosed by a person in respect of which a self-incrimination certificate has been given, cannot be used against the person.

217. The amendment mirrors subsections 128(12)-(14) of the Act to ensure that self-incrimination certificates issued to persons subject to disclosure orders (i.e. required to provide evidence before trial) under a prescribed State and Territory provision can be relied on as if they were issued under the Evidence Act.

218. These amendments were endorsed by the then Standing Committee of Attorneys-General in May 2010 to ensure that self-incrimination certificates are recognised in all jurisdictions irrespective of where they are issued.

PART 2-APPLICATION TO THE AUSTRALIAN CAPITAL TERRITORY

Evidence Act 1995

Item 4: Chapter 1 (introductory note)

219. This item will amend the introductory note to chapter 1 to remove the reference to 'and ACT courts'.

220. Currently, subsection 4(6) of the Evidence Act 1995 states that the Evidence Act applies to all proceedings in an Australian Capital Territory (ACT) court, until a day fixed by Proclamation. Following the commencement of the Evidence Act 2011 (ACT), it was proclaimed on 9 February 2012 that 1 March 2012 was the day the Commonwealth Evidence Act ceased to generally apply to proceedings in an ACT court.

221. While this reference is obsolete and has no legal effect due to the Proclamation, it may be misleading and will be removed in accordance with clearer Commonwealth laws principles.

Item 5: Subsection 4(1)

222. This item will amend subsection 4(1) to remove the reference to 'or an ACT court'.

223. Currently, subsection 4(6) of the Evidence Act 1995 states that the Evidence Act applies to all proceedings in an Australian Capital Territory (ACT) court, until a day fixed by Proclamation. Following the commencement of the Evidence Act 2011 (ACT), it was proclaimed on 9 February 2012 that 1 March 2012 was the day the Commonwealth Evidence Act ceased to generally apply to proceedings in an ACT court.

224. While this reference is obsolete and has no legal effect due to the Proclamation, it may be misleading and will be removed in accordance with clearer Commonwealth laws principles.

Item 6: Subsection 4(1) (note 2)

225. This item will amend note 2 under subsection 4(1) to remove the reference to 'ACT court' being a defined term in the Dictionary.

226. Currently, subsection 4(6) of the Evidence Act 1995 states that the Evidence Act applies to all proceedings in an Australian Capital Territory (ACT) court, until a day fixed by Proclamation. Following the commencement of the Evidence Act 2011 (ACT), it was proclaimed on 9 February 2012 that 1 March 2012 was the day the Commonwealth Evidence Act ceased to generally apply to proceedings in an ACT court.

227. While this reference is obsolete and has no legal effect due to the Proclamation, it may be misleading and will be removed in accordance with clearer Commonwealth laws principles.

228. The definition of 'ACT court' in the Dictionary will be repealed by item 20.

Item 7: Subsection 4(1) (note 3)

229. This item will amend note 3 under subsection 4(1) to remove the reference to 'or ACT courts'.

230. Currently, subsection 4(6) of the Evidence Act 1995 states that the Evidence Act applies to all proceedings in an Australian Capital Territory (ACT) court, until a day fixed by Proclamation. Following the commencement of the Evidence Act 2011 (ACT), it was proclaimed on 9 February 2012 that 1 March 2012 was the day the Commonwealth Evidence Act ceased to generally apply to proceedings in an ACT court.

231. While this reference is obsolete and has no legal effect due to the Proclamation, it may be misleading and will be removed in accordance with clearer Commonwealth laws principles.

Item 8: Paragraph 4(5)(b)

232. This item will amend paragraph 4(5)(b) to add a reference to the Australian Capital Territory (ACT).

233. Subsection 4(5) provides that the Evidence Act 1995 (other than sections 185,186 and 187) does not apply to certain appeals or reviews of a decision such as:

•

an appeal from a court of the Northern Territory or an external Territory (paragraph 4(5)(b)), and

•

on or after the day fixed by Proclamation under subsection (6)-an appeal from an ACT court (paragraph 4(5)(c)).

234. Currently, subsection 4(6) of the Evidence Act states that the Evidence Act applies to all proceedings in an ACT court, until a day fixed by Proclamation. Following the commencement of the Evidence Act 2011 (ACT), it was proclaimed on 9 February 2012 that 1 March 2012 was the day the Commonwealth Evidence Act ceased to generally apply to proceedings in an ACT court.

235. The effect of this amendment is to provide that the Evidence Act (other than sections 185,186 and 187) does not apply to an appeal from a court of the ACT (in addition to a court of the Northern Territory or an external Territory).

236. The amendment will reflect the current law that the Commonwealth Evidence Act does not apply to appeals from an ACT court, as provided by paragraph 4(5)(c). The amendment will not change the current substance of the law, but will be made in accordance with clearer Commonwealth laws principles as the current text of paragraph 4(5)(b) may be misleading.

237. This item is to be read with item 9.

Item 9: Paragraphs 4(5)(c) and (d)

238. This item will repeal paragraphs 4(5)(c) and (d).

239. Subsection 4(5) sets out the proceedings to which the Evidence Act 1995 (other than sections 185,186 and 187) does not apply. Paragraph 4(5)(c) provides that the Evidence Act does not apply to an appeal from an Australian Capital Territory (ACT) court on or after the day fixed by Proclamation.

240. Paragraph 4(5)(d) provides that the Evidence Act does not apply to a review of a decision or order of a magistrate (other than a review of a decision or order of a magistrate of the ACT) and any appeal from such a review until the day fixed by Proclamation. ^[2]

241. Currently, subsection 4(6) of the Evidence Act states that the Evidence Act applies to all proceedings in an ACT court, until a day fixed by Proclamation. Following the commencement of the Evidence Act 2011 (ACT), it was proclaimed on 9 February 2012 that 1 March 2012 was the day the Commonwealth Evidence Act ceased to generally apply to proceedings in an ACT court.

242. Item 8 above amends paragraph 4(5)(b) to provide that the provisions of the Evidence Act do not apply to an appeal from an ACT court. The new paragraph 4(5)(b) will duplicate the substance of paragraph 4(5)(c). Paragraph 4(5)(c) is now unnecessary and will be removed in accordance with clearer Commonwealth laws principles.

243. Paragraph 4(5)(d) only functions until the day fixed by Proclamation under subsection 4(5). As this day has passed, paragraph 4(5)(d) ceases to have utility and will be removed in accordance with clearer Commonwealth laws principles.

Item 10: Paragraph 4(5)(e)

244. This item will amend paragraph 4(5)(e) to remove the reference to 'on or after that day -'.

245. Paragraph 4(5)(e) presently provides that on or after a day fixed by Proclamation, the Evidence Act (other than sections 185,186 and 187) does not apply to a review of a decision or order of a magistrate and any appeal from such a review. ^[3]

246. Currently, subsection 4(6) of the Evidence Act 1995 states that the Evidence Act applies to all proceedings in an Australian Capital Territory (ACT) court, until a day fixed by Proclamation. Following the commencement of the Evidence Act 2011 (ACT), it was proclaimed on 9 February 2012 that 1 March 2012 was the day the Commonwealth Evidence Act ceased to generally apply to proceedings in an ACT court.

247. Paragraph 4(5)(e) commences functioning on or after the day fixed by Proclamation. As this day has passed, the reference to 'on or after that day [fixed by Proclamation]-' is unnecessary and will be removed in accordance with clearer Commonwealth laws principles.

Item 11: Subsection 4(6) (not including the note)

248. This item will repeal subsection 4(6) (except the note).

249. Currently, subsection 4(6) states that the Evidence Act 1995 applies to all proceedings in an Australian Capital Territory (ACT) court, until a day fixed by Proclamation. Following the commencement of the Evidence Act 2011 (ACT), it was proclaimed on 9 February 2012 that 1 March 2012 was the day the Commonwealth Evidence Act ceased to generally apply to proceedings in an ACT court. As such, this subsection has ceased to have utility and will be removed in accordance with clearer Commonwealth laws principles.

250. The note under subsection 4(6) will be repealed by item 24 of Part 3 of Schedule 5.

Item 12: Subsections 8(4) to (6)

251. This item will repeal subsections 8(4) to (6).

252. Section 8 provides for certain other laws not to be affected by the Evidence Act 1995. Currently, paragraphs (8)(4) to (6) provide that until a day fixed by Proclamation under subsection 4(6), prescribed provisions of the repealed Evidence Act 1971 (ACT), other Australian Capital Territory (ACT) Acts and Ordinances (including Imperial and State Acts in force in the ACT) and ACT regulations in force when the Act commences for so long thereafter as they are not amended, are to prevail over the Evidence Act.

253. Currently, subsection 4(6) of the Evidence Act 1995 states that the Evidence Act applies to all proceedings in an ACT court, until a day fixed by Proclamation. Following the commencement of the Evidence Act 2011 (ACT), it was proclaimed on 9 February 2012 that 1 March 2012 was the day the Commonwealth Evidence Act ceased to generally apply to proceedings in an ACT court.

254. Since 1 March 2012, subsections 8(4) to (6) have ceased to have any function and will be removed in accordance with clearer Commonwealth laws principles.

Item 13: Section 19

255. This item will repeal section 19.

256. Section 18 of the Evidence Act 1995 provides for the compellability of a spouse, de facto partner, parent or child of a defendant in a criminal proceeding. Currently, section 19 provides that section 18 does not apply in proceedings for certain offences against children and domestic violence offences as provided under Australian Capital Territory (ACT) law.

257. Currently, subsection 4(6) of the Evidence Act states that the Evidence Act applies to all proceedings in an ACT court, until a day fixed by Proclamation. Following the commencement of the Evidence Act 2011 (ACT), it was proclaimed on 9 February 2012 that 1 March 2012 was the day the Commonwealth Evidence Act ceased to generally apply to proceedings in an ACT court.

258. Since 1 March 2012, it has become superfluous to provide an exception to the application of section 18 for certain ACT offences, as the Evidence Act has ceased to generally apply to proceedings in an ACT court. Section 19 is unnecessary and will be removed in accordance with clearer Commonwealth laws principles.

Item 14: Subsection 128(15) (not including the notes)

259. This item will repeal subsection 128(15), except the notes.

260. Section 128 provides a general rule that a court must not require a witness to give particular evidence if the witness objects that the evidence may tend to prove he or she has committed an offence or is liable to a civil penalty, and the Court is satisfied there are reasonable grounds for the objection. However, the Court will give the witness a certificate under section 128 (self-incrimination certificate) if the witness gives self-incriminating evidence. The effect of this certificate is that the evidence in respect of which the certificate was given cannot be used against the person in a court proceeding.

261. Subsection 128(12) provides for the mutual recognition of self-incrimination certificates. Certificates given by a State or Territory court under prescribed State or Territory provisions ^[4] have the same effect in a federal court as if the certificates had been given under the Evidence Act 1995.

262. Subsection 128(15) provides that until a day fixed by Proclamation under subsection 4(6) in certain proceedings against Australian Capital Territory (ACT) law, subsection 128(12) applies so that self-incrimination certificates issued by other State or Territory courts would have effect in a proceeding in an ACT court.

263. Currently, subsection 4(6) of the Evidence Act states that the Evidence Act applies to all proceedings in an ACT court, until a day fixed by Proclamation. Following the commencement of the Evidence Act 2011 (ACT), it was proclaimed on 9 February 2012 that 1 March 2012 was the day the Commonwealth Evidence Act ceased to generally apply to proceedings in an ACT court.

264. As the day fixed by Proclamation has passed, this provision has become obsolete and will be removed in accordance with clearer Commonwealth laws principles.

Item 15: Subsection 128A(1) (definition of disclosure order )

265. This item will amend the definition of 'disclosure order' under subsection 128A(1) to remove the reference to 'or an ACT court'.

266. Currently, 'disclosure order' means an order made by a federal court or an Australian Capital Territory (ACT) court in a civil proceeding requiring a person to disclose information, as part of, or in connection with a freezing or search order, but does not include an order made by a court under the Proceeds of Crime Act 2002.

267. Currently, subsection 4(6) of the Evidence Act 1995 states that the Evidence Act applies to all proceedings in an ACT court, until a day fixed by Proclamation. Following the commencement of the Evidence Act 2011 (ACT), it was proclaimed on 9 February 2012 that 1 March 2012 was the day the Commonwealth Evidence Act ceased to generally apply to proceedings in an ACT court.

268. While this reference is obsolete and has no legal effect due to the Proclamation, it may be misleading and will be removed in accordance with clearer Commonwealth laws principles.

Item 16: Section 131B

269. This item will amend section 131B to remove the reference to 'or an ACT court'.

270. Section 131B extends the application of Division 1A of Part 3.10 (journalists' privilege) and section 131A of the Evidence Act 1995 to all proceedings in any other Australian court against a law of the Commonwealth. At present, section 131B provides that this extended application is in addition to their application under section 4 to all proceedings in a federal court or an Australian Capital Territory (ACT) court.

271. Currently, subsection 4(6) of the Evidence Act states that the Evidence Act applies to all proceedings in an ACT court, until a day fixed by Proclamation. Following the commencement of the Evidence Act 2011 (ACT), it was proclaimed on 9 February 2012 that 1 March 2012 was the day the Commonwealth Evidence Act ceased to generally apply to proceedings in an ACT court.

272. The Commonwealth Evidence Act has ceased to apply to proceedings in an ACT court under section 4.

273. This reference to an ACT court is obsolete and has no legal effect due to the Proclamation. It therefore may be misleading and will be removed in accordance with clearer Commonwealth laws principles.

Item 17: Subsection 182(2)

274. This item will amend subsection 182(2) to remove the reference to 'or (until the day fixed by Proclamation under subsection 4(6)) an ACT court'.

275. Section 182 extends the application of certain provisions of the Evidence Act 1995 to proceedings in all Australian courts, in relation to Commonwealth documents. The extended provisions include exceptions relating to the hearsay rule. The hearsay rule is provided for under section 59.

276. Subsection 182(2) provides that the provisions relating to exceptions to the hearsay rule apply in proceedings as if references in those provisions to the 'hearsay rule' are references to 'any rule of law restricting the admissibility or use of hearsay evidence'. However, this does not apply to proceedings in a federal court 'or (until the day fixed by Proclamation under subsection 4(6)) an ACT court'.

277. Currently, subsection 4(6) of the Evidence Act states that the Evidence Act applies to all proceedings in an Australian Capital Territory (ACT) court, until a day fixed by Proclamation. Following the commencement of the Evidence Act 2011 (ACT), it was proclaimed on 9 February 2012 that 1 March 2012 was the day the Commonwealth Evidence Act ceased to generally apply to proceedings in an ACT court.

278. As the day fixed by Proclamation has passed, the reference to an ACT court has become obsolete and has no legal effect. It will be removed in accordance with clearer Commonwealth laws principles.

Items 18 and 19: Subsection 187(1)

279. Item 18 will amend subsection 187(1) to remove the reference to 'or the Australian Capital Territory'.

280. Item 19 will amend subsection 187(1) to remove the reference to 'or an ACT court'.

281. Section 187 abolishes the privilege against self-incrimination for bodies corporate in relation to a Commonwealth or Australian Capital Territory (ACT) law, or in proceedings in a federal court or ACT court.

282. Currently, subsection 4(6) of the Evidence Act 1995 states that the Evidence Act applies to all proceedings in an ACT court, until a day fixed by Proclamation. Following the commencement of the Evidence Act 2011 (ACT), it was proclaimed on 9 February 2012 that 1 March 2012 was the day the Commonwealth Evidence Act ceased to generally apply to proceedings in an ACT court.

283. The effect of this amendment is to reduce the scope of section 187 so that it does not apply to ACT law or in proceedings in an ACT court.

284. As the Commonwealth Evidence Act has ceased to apply to the ACT and the ACT has its own legislative regime dealing with evidence law, it is inappropriate for section 187 to continue to apply in relation to ACT law or in proceedings in an ACT court.

Item 20: Part 1 of the Dictionary (definition of ACT court )

285. This item will repeal the definition of 'ACT court' in the Part of the Dictionary. This definition is no longer required as the items in this Part remove all references to 'ACT court'.

PART 3-DIFFERENCES FROM EVIDENCE ACTS OF OTHER JURISDICTIONS

Evidence Act 1995

Item 21: Chapter 1 (introductory note)

286. This item will omit all words in the introductory note to Chapter 1 of the Evidence Act under the heading 'Related legislation'. This will be substituted with a list of Acts from New South Wales, Victoria, Tasmania, the Northern Territory and the Australian Capital Territory that are in most respects uniform with the Commonwealth Evidence Act (related legislation). A note on the location of a table setting out the differences between the related legislation and the Evidence Act will also be inserted.

287. The introductory note currently only refers to the Evidence Act 1995 (NSW) as being in most respects uniform to the Commonwealth Evidence Act. The note also states that where there are differences between the two Acts, these are identified in annotations to the text (except for minor drafting variations which are required because one Act is a Commonwealth Act and one Act is a New South Wales Act).

288. The current approach of inserting these annotations adjacent to each provision has been seen to be useful. In New South Wales, the Commonwealth Evidence Act and New South Wales Evidence Act function in parallel in the same geographical location-one or the other would be applicable depending on whether a proceeding was in a New South Wales court or a federal court.

289. However, these annotations are out of date as only differences between the New South Wales Evidence Act and the Commonwealth Evidence Act are included, while differences between the Commonwealth Evidence Act and other related legislation are not.

290. This approach does not promote accuracy in legislation. It is difficult to keep these annotations up to date as legislative amendments to the Commonwealth Evidence Act will be required when changes are made in other jurisdictions.

291. As such, the amendments in this Part will remove all such annotations in the Commonwealth Evidence Act.

292. The information conveyed by these annotations will continue to be available to users in the form of a table setting out the differences between the Commonwealth Evidence Act and related legislation. This table is included as an attachment to this Explanatory Memorandum (see Attachment B), which provides a point in time reference. Updates to the table will also be placed on the Attorney-General's Department website at http://www.ag.gov.au. The table will have no substantive effect but will assist readers where differences in related evidence legislation exist.

293. This approach will address the difficulties with the current approach, while continuing to provide for the ease of use and accessibility for users of legislation.

Items 22 to 60 except for items 25, 30, 35, 42, 44, 46, 50, 53, 54 and 56:

294. These items repeal annotations in the text of the Evidence Act 1995 (Cth) which identify where there are differences between the Commonwealth Evidence Act and the Evidence Act 1995 (NSW).

295. These amendments are consistent with the new approach to setting out the differences between the Commonwealth Evidence Act and State and Territory Evidence Acts (see note on item 21).

Items 25, 30, 35, 42, 44, 46, 50, 54:

296. These items renumber the specified legislative notes, as a consequence of the repeal of other legislative notes by Part 3 of Schedule 5.

Items 53 and 56: Sections 194 and 196

297. These items repeal sections 194 and 196. These sections are merely placeholders which correspond to provisions in the Evidence Act 1995 (NSW), as identified by the annotations on these sections, and do not contain any text.

298. These amendments are consistent with the new approach to setting out the differences between the Commonwealth Evidence Act and State and Territory Evidence Acts (see note on item 21).

PART 4-OTHER AMENDMENTS

Evidence Act 1995

Item 60: Section 31 (heading)

299. This item will repeal the heading to section 31 and replace it with 'Witnesses who cannot hear or speak adequately.'

300. Currently, the title to section 31 is 'Deaf and mute witnesses'. However, the body of the section refers to 'witnesses who cannot hear adequately' and 'witnesses who cannot speak adequately'.

301. The amendment will make the heading consistent with the terminology used in the body of the section, but will have no substantive effect on the application of this section.

302. In addition, the new title will be more inclusive. The reference to 'witnesses who cannot hear or speak adequately' acknowledges the broad spectrum of communication disabilities.

Item 61: Paragraph 1(1)(d) of Part 2 of the Dictionary

303. This item inserts 'or body' after the words 'an activity engaged in or carried on by a person' in paragraph 1(1)(d) of Part 2 of the Dictionary. This amendment will correct a drafting oversight.

304. This amendment will make the provision consistent with the Model Uniform Evidence Bill, endorsed by the then Standing Committee of Attorneys-General, which includes 'or body' to avoid any doubt that the provision applies to corporate persons.

Item 62: Clause 4 of Part 2 of the Dictionary

305. Item 63 will expand the scope of persons taken not to be available to give evidence about a fact (unavailable persons) in clause 4 of Part 2 of the Dictionary to include persons who are mentally or physically unable to give evidence, and where it is not reasonably practicable to overcome that inability.

306. The current definition provides that a person is not taken to be available to give evidence about a fact if:

•

they are dead

•

they are not competent to give evidence

•

it would be unlawful for them to give evidence

•

a provision in the Evidence Act 1995 prohibits the evidence from being given, or

•

the person cannot be found or compelled to give evidence.

307. This amendment implements a 2005 recommendation of the Australian, New South Wales and Victorian Law Reform Commissions. ^[5] The amendment was recommended to ensure that relevant evidence was not excluded under the hearsay rule due to a witness being unfit to give evidence (sections 63 and 65 of the Evidence Act provide exceptions to the hearsay rule where a person, who has made a previous representation, is not available to give evidence about an asserted fact).

308. Consistent with the aim of the recommendation, it is not intended that this amendment should lower the standard of unavailability generally. For example, it is not intended that any person should be considered unavailable to give evidence simply by producing a medical certificate. A real mental or physical inability to testify must be shown. The use of other measures available to certain witnesses (such as the use of pre-recorded evidence or CCTV for vulnerable witnesses) will restrict the number of people who will fit within the category of a person who is unavailable to give evidence because of a mental or physical inability.

309. The amendment will ensure consistency with the Model Uniform Evidence Bill as amended by the then Standing Committee of Attorneys-General in May 2010.

PART 5-APPLICATION OF AMENDMENTS

Evidence Act 1995

Item 63: Application of amendments

310. This item sets out the application of the amendments in Schedule 5.

311. Subitem (1) provides that for proceedings which began before the commencement of Schedule 5, the amendments do not apply.

312. Subitem (2) provides that the Evidence Act 1995, as in force immediately before the commencement of Schedule 5, continues to apply in relation to proceedings which began before that commencement.

313. This means the amendments made by Schedule 5 only apply to proceedings that commence after the commencement of this Schedule.