Evidence Act 2011

For this Act, a reference to examination-in-chief of a witness is a reference to the questioning of a witness by the party who called the witness to give evidence, other than questioning that is re‑examination.

For this Act, a reference to cross-examination of a witness is a reference to the questioning of a witness by a party other than the party who called the witness to give evidence.

For this Act, a reference to re-examination of a witness is a reference to the questioning of a witness by the party who called the witness to give evidence, that is questioning (other than further examination-in-chief with the leave of the court) conducted after the cross‑examination of the witness by another party.

For this Act, if a party has recalled a witness who has already given evidence, a reference to re-examination of a witness does not include a reference to the questioning of the witness by that party before the witness is questioned by another party.

3 References to civil penalties

For this Act, a person is taken to be liable to a civil penalty if, in an Australian or overseas proceeding (other than a criminal proceeding), the person would be liable to a penalty arising under an Australian law or a law of a foreign country.

4 Unavailability of people

For this Act, a person is taken not to be available to give evidence about a fact if—

the person is dead; or

the person is, for any reason other than the application of section 16 (Competence and compellability—judges and jurors), not competent to give the evidence; or

the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability; or

it would be unlawful for the person to give the evidence; or

a provision of this Act prohibits the evidence being given; or

all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or to secure the person’s attendance, but without success; or

all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.

In all other cases the person is taken to be available to give evidence about the fact.

5 Unavailability of documents and things

For this Act, a document or thing is taken not to be available to a party if and only if—

it cannot be found after reasonable inquiry and search by the party; or

it was destroyed by the party, or by a person on behalf of the party, otherwise than in bad faith, or was destroyed by someone else; or

it would be impractical to produce the document or thing in the proceeding; or

production of the document or thing in the proceeding could render a person liable to conviction for an offence; or

it is not in the possession or under the control of the party and—

it cannot be obtained by any judicial procedure of the court; or

it is in the possession or under the control of another party to the proceeding who knows or might reasonably be expected to know that evidence of the contents of the document, or evidence of the thing, is likely to be relevant in the proceeding; or

it was in the possession or under the control of that other party at a time when that party knew or might reasonably be expected to have known that the evidence was likely to be relevant in the proceeding.

6 Representations in documents

For this Act, a representation contained in a document is taken to have been made by a person if—

the document was written, made or otherwise produced by the person; or

the representation was recognised by the person as the person’s representation by signing, initialling or otherwise marking the document.

7 Witnesses

For this Act, a reference to a witness includes a reference to a party giving evidence.

For this Act, a reference to a witness who has been called by a party to give evidence includes a reference to the party giving evidence.

For this section, a reference to a party includes a defendant in a criminal proceeding.

8 References to documents

For this Act, a reference to a document includes a reference to the following:

any part of the document;

any copy, reproduction or duplicate of the document or of any part of the document;

any part of the copy, reproduction or duplicate.

8A References to offices etc

For this Act—

a reference to a person appointed or holding office under or because of an Australian law includes a reference to an APS employee within the meaning of the Public Service Act 1999 (Cwlth); and

in that context, a reference to an office is a reference to the position occupied by the APS employee and a reference to an officer includes a reference to a Secretary, or APS employee, within the meaning of that Act.

9 References to laws

For this Act, a reference to a law of the Commonwealth, a State, a Territory or a foreign country is a reference to a law (whether written or unwritten) of or in force in that place.

For this Act, a reference to an Australian law is a reference to an Australian law (whether written or unwritten) of or in force in Australia.

10 References to children and parents

For this Act, a child of a person includes the following:

an adopted child of the person;

a child of the person born outside the person’s domestic partnership;

a child living with the person as if the child were a member of the person’s family.

For this Act, a parent of a person includes the following:

if the person is adopted—an adoptive parent of the person;

if the person is a child mentioned in subsection (1) (b)—the person’s natural father;

if the person is a child mentioned in subsection (1) (c)—the person whose family the child is living with.

Note The Commonwealth Act and NSW Act include a provision about references to de facto partners.