Commonwealth Consolidated Acts Commonwealth Consolidated ActsSubsections 21(4) and 22(2)
Oaths by witnesses
I swear ( or the person taking the oath may promise ) by Almighty God ( or the person may name a god recognised by his or her religion ) that the evidence I shall give will be the truth, the whole truth and nothing but the truth.
Oaths by interpreters
I swear ( or the person taking the oath may promise ) by Almighty God ( or the person may name a god recognised by his or her religion ) that I will well and truly interpret the evidence that will be given and do all other matters and things that are required of me in this case to the best of my ability.
Affirmations by witnesses
I solemnly and sincerely declare and affirm that the evidence I shall give will be the truth, the whole truth and nothing but the truth.
Affirmations by interpreters
I solemnly and sincerely declare and affirm that I will well and truly interpret the evidence that will be given and do all other matters and things that are required of me in this case to the best of my ability.
Section 3
"admission" means a previous representation that is:
(a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding); and
(b) adverse to the person's interest in the outcome of the proceeding.
"asserted fact" is defined in section 59.
"associated defendant" , in relation to a defendant in a criminal proceeding, means a person against whom a prosecution has been instituted, but not yet completed or terminated, for:
(a) an offence that arose in relation to the same events as those in relation to which the offence for which the defendant is being prosecuted arose; or
(b) an offence that relates to or is connected with the offence for which the defendant is being prosecuted.
"Australia" includes the external Territories.
"Australian court" means:
(a) the High Court; or
(b) a court exercising federal jurisdiction; or
(c) a court of a State or Territory; or
(d) a judge, justice or arbitrator under an Australian law; or
(e) a person or body authorised by an Australian law, or by consent of parties, to hear, receive and examine evidence; or
(f) a person or body that, in exercising a function under an Australian law, is required to apply the laws of evidence.
"Australian law" means a law of the Commonwealth, a State or a Territory.
Note: See clause 9 of Part 2 of the Dictionary for the meaning of law.
"Australian lawyer" means a person who is admitted to the legal profession by a Supreme Court of a State or Territory under a law of a State or Territory specified in the regulations.
"Australian legal practitioner" means an Australian lawyer who holds a practising certificate under a law of a State or Territory specified in the regulations.
"Australian or overseas proceeding" means a proceeding (however described) in an Australian court or a foreign court.
"Australian Parliament" means the Parliament, a Parliament of a State or a Legislative Assembly of a Territory.
"Australian practising certificate" means a practising certificate granted under a law of a State or Territory specified in the regulations.
"Australian-registered foreign lawyer" means a person who is registered as a foreign lawyer under a law of a State or Territory specified in the regulations.
"Australian Statistician" means the Australian Statistician referred to in subsection 5(2) of the Australian Bureau of Statistics Act 1975 , and includes any person to whom the powers of the Australian Statistician under section 12 of the Census and Statistics Act 1905 have been delegated.
"business" is defined in clause 1 of Part 2 of this Dictionary.
"case" of a party means the facts in issue in respect of which the party bears the legal burden of proof.
"child" means a child of any age and includes the meaning given in subclause 10(1) of Part 2 of this Dictionary.
"civil penalty" is defined in clause 3 of Part 2 of this Dictionary.
"civil proceeding" means a proceeding other than a criminal proceeding.
"client" is defined in section 117.
"coincidence evidence" means evidence of a kind referred to in subsection 98(1) that a party seeks to have adduced for the purpose referred to in that subsection.
"coincidence rule" means subsection 98(1).
"Commonwealth agency" means:
(a) an Agency within the meaning of the Public Service Act 1999 ; or
(b) a House of the Parliament; or
(c) a person or body holding office, or exercising power, under or because of the Constitution or a law of the Commonwealth; or
(d) a body or organisation, whether incorporated or unincorporated, established for a public purpose:
(i) by or under a law of the Commonwealth or of a Territory (other than the Australian Capital Territory, the Northern Territory or Norfolk Island); or
(ii) by the Governor - General; or
(iii) by a Minister.
"Commonwealth document" means:
(a) a document in the nature of a form, application, claim or return, or any document of a similar kind, that has, in accordance with a Commonwealth law, or in connection with the provision of money or any other benefit or advantage by the Commonwealth, been filed or lodged with a Commonwealth entity or given or sent (including sent by a form of electronic transmission) to a Commonwealth entity; and
(b) any of the following documents:
(i) a report of the passengers or crew on a ship or aircraft that has been communicated to the Department administered by the Minister administering Part XII of the Customs Act 1901 under section 64ACA or 64ACB of the Customs Act 1901 ;
(ia) a report relating to the passengers or crew on an aircraft or ship that has been communicated to the Department administered by the Minister who administers the Migration Act 1958 under Division 12B of Part 2 of that Act;
(ii) a ship's inward cargo adjustment report delivered to an officer under subregulation 46(3) of the Customs Regulations;
(iii) an entry made under the Customs Act 1901 or Excise Act 1901 in relation to goods;
(iv) a form or statement given to a Collector under regulation 41 of the Customs Regulations;
(v) a passenger card given to an officer under subregulation 3.01(3) of the Migration Regulations;
(vi) a report referred to in section 46 of the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 that has been given under that section to the Minister administering that Act;
(vii) any other document prescribed by the regulations for the purposes of this paragraph.
"Commonwealth entity" means:
(a) an Agency within the meaning of the Public Service Act 1999 ; or
(b) the Parliament, a House of the Parliament, a committee of a House of the Parliament or a committee of the Parliament; or
(c) a person or body other than a Legislative Assembly holding office, or exercising power, under or because of the Constitution or a law of the Commonwealth; or
(d) a body or organisation other than a Legislative Assembly, whether incorporated or unincorporated, established for a public purpose:
(i) by or under a law of the Commonwealth or of a Territory (other than the Australian Capital Territory, the Northern Territory or Norfolk Island); or
(ii) by the Governor - General; or
(iii) by a Minister; or
(e) any other body or organisation that is a Commonwealth owned body corporate.
"Commonwealth owned body corporate" means a body corporate that, were the Commonwealth a body corporate, would, for the purposes of the Corporations Act 2001 , be:
(a) a wholly - owned subsidiary of the Commonwealth; or
(b) a wholly - owned subsidiary of another body corporate that is, under this definition, a Commonwealth owned body corporate because of the application of paragraph (a) (including the application of that paragraph together with another application or other applications of this paragraph).
"Commonwealth record" means a record made by:
(a) an Agency within the meaning of the Public Service Act 1999 ; or
(b) the Parliament, a House of the Parliament, a committee of a House of the Parliament or a committee of the Parliament; or
(c) a person or body other than a Legislative Assembly holding office, or exercising power, under or because of the Constitution or a law of the Commonwealth; or
(d) a body or organisation other than a Legislative Assembly, whether incorporated or unincorporated, established for a public purpose:
(i) by or under a law of the Commonwealth or of a Territory (other than the Australian Capital Territory, the Northern Territory or Norfolk Island); or
(ii) by the Governor - General; or
(iii) by a Minister; or
(e) any other body or organisation that is a Commonwealth owned body corporate;
and kept or maintained by a person, body or organisation of a kind referred to in paragraph (a), (b), (c), (d) or (e), but does not include a record made by a person or body holding office, or exercising power, under or because of the Constitution or a law of the Commonwealth if the record was not made in connection with holding the office concerned, or exercising the power concerned.
"confidential communication" is defined in section 117.
"confidential document" is defined in section 117.
"credibility" of a person who has made a representation that has been admitted in evidence means the credibility of the representation, and includes the person's ability to observe or remember facts and events about which the person made the representation.
"credibility" of a witness means the credibility of any part or all of the evidence of the witness, and includes the witness's ability to observe or remember facts and events about which the witness has given, is giving or is to give evidence.
"credibility evidence" is defined in section 101A.
"credibility rule" means section 102.
"criminal proceeding" means a prosecution for an offence and includes:
(a) a proceeding for the committal of a person for trial or sentence for an offence; and
(b) a proceeding relating to bail;
but does not include a prosecution for an offence that is a prescribed taxation offence within the meaning of Part III of the Taxation Administration Act 1953 .
"cross-examination" is defined in subclause 2(2) of Part 2 of this Dictionary.
"cross-examiner" means a party who is cross - examining a witness.
"de facto partner" is defined in clause 11 of Part 2 of this Dictionary.
"document" means any record of information, and includes:
(a) anything on which there is writing; or
(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; or
(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; or
(d) a map, plan, drawing or photograph.
Note: See also clause 8 of Part 2 of this Dictionary on the meaning of document.
"electronic communication" has the same meaning as it has in the Electronic Transactions Act 1999 .
"examination in chief" is defined in subclause 2(1) of Part 2 of this Dictionary.
"exercise" of a function includes performance of a duty.
"fax" , in relation to a document, means a copy of the document that has been reproduced by facsimile telegraphy.
"federal court" means:
(a) the High Court; or
(b) any other court created by the Parliament (other than the Supreme Court of a Territory);
and includes a person or body (other than a court or magistrate of a State or Territory) that, in performing a function or exercising a power under a law of the Commonwealth, is required to apply the laws of evidence.
"foreign court" means any court (including any person or body authorised to take or receive evidence, whether on behalf of a court or otherwise and whether or not the person or body is empowered to require the answering of questions or the production of documents) of a foreign country or a part of such a country.
"function" includes power, authority or duty.
"government or official gazette" includes the Gazette .
"hearsay rule" means subsection 59(1).
"identification evidence" means evidence that is:
(a) an assertion by a person to the effect that a defendant was, or resembles (visually, aurally or otherwise) a person who was, present at or near a place where:
(i) the offence for which the defendant is being prosecuted was committed; or
(ii) an act connected to that offence was done;
at or about the time at which the offence was committed or the act was done, being an assertion that is based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time; or
(b) a report (whether oral or in writing) of such an assertion.
"investigating official" means:
(a) a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior); or
(b) a person appointed by or under an Australian law (other than a person who is engaged in covert investigations under the orders of a superior) whose functions include functions in respect of the prevention or investigation of offences.
"joint sitting" means:
(a) in relation to the Parliament--a joint sitting of the members of the Senate and of the House of Representatives convened by the Governor - General under section 57 of the Constitution or convened under any Act; or
(b) in relation to a bicameral legislature of a State--a joint sitting of both Houses of the legislature convened under a law of the State.
"judge" , in relation to a proceeding, means the judge, magistrate or other person before whom the proceeding is being held.
"law" is defined in clause 9 of Part 2 of this Dictionary.
"leading question" means a question asked of a witness that:
(a) directly or indirectly suggests a particular answer to the question; or
(b) assumes the existence of a fact the existence of which is in dispute in the proceeding and as to the existence of which the witness has not given evidence before the question is asked.
"legal counsel" means an Australian lawyer employed in or by a government agency or other body who by law is exempted from holding an Australian practising certificate, or who does not require an Australian practising certificate, to engage in legal practice in the course of that employment.
Note: Examples of legal counsel are in - house counsel and government solicitors.
"Legislative Assembly" means any present or former Legislative Assembly of a Territory, and includes the Australian Capital Territory House of Assembly.
"offence" means an offence against or arising under an Australian law.
"opinion rule" means section 76.
"overseas-registered foreign lawyer" means a natural person who is properly registered to engage in legal practice in a foreign country by an entity in the country having the function, conferred by the law of the country, of registering persons to engage in legal practice in the country.
"parent" includes the meaning given in subclause 10(2) of Part 2 of this Dictionary.
"picture identification evidence" is defined in section 115.
"police officer" means:
(a) a member or special member of the Australian Federal Police; or
(b) a member of the police force of a State or Territory.
"postal article" has the same meaning as in the Australian Postal Corporation Act 1989 .
"previous representation" means a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced.
"prior consistent statement" of a witness means a previous representation that is consistent with evidence given by the witness.
"prior inconsistent statement" of a witness means a previous representation that is inconsistent with evidence given by the witness.
"probative value" of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.
"prosecutor" means a person who institutes or is responsible for the conduct of a prosecution.
"public document" means a document that:
(a) forms part of the records of the Crown in any of its capacities; or
(b) forms part of the records of the government of a foreign country; or
(c) forms part of the records of a person or body holding office or exercising a function under or because of the Constitution, an Australian law or a law of a foreign country; or
(d) is being kept by or on behalf of the Crown, such a government or such a person or body;
and includes the records of the proceedings of, and papers presented to:
(e) an Australian Parliament, a House of an Australian Parliament, a committee of such a House or a committee of an Australian Parliament; and
(f) a legislature of a foreign country, including a House or committee (however described) of such a legislature.
"re-examination" is defined in subclauses 2(3) and (4) of Part 2 of this Dictionary.
"registered" , in relation to legal practice in a foreign country, means having all necessary licences, approvals, admissions, certificates or other forms of authorisation (including practising certificates) required by or under legislation for engaging in legal practice in that country.
"representation" includes:
(a) an express or implied representation (whether oral or in writing); or
(b) a representation to be inferred from conduct; or
(c) a representation not intended by its maker to be communicated to or seen by another person; or
(d) a representation that for any reason is not communicated.
"seal" includes a stamp.
"tendency evidence" means evidence of a kind referred to in subsection 97(1) that a party seeks to have adduced for the purpose referred to in that subsection.
"tendency rule" means subsection 97(1).
"traditional laws and customs" of an Aboriginal or Torres Strait Islander group (including a kinship group) includes any of the traditions, customary laws, customs, observances, practices, knowledge and beliefs of the group.
"visual identification evidence" is defined in section 114.
"witness" includes the meaning given in clause 7 of Part 2 of this Dictionary.
(1) A reference in this Act to a business includes a reference to the following:
(a) a profession, calling, occupation, trade or undertaking;
(b) an activity engaged in or carried on by the Crown in any of its capacities;
(c) an activity engaged in or carried on by the government of a foreign country;
(d) an activity engaged in or carried on by a person or body holding office or exercising power under or because of the Constitution, an Australian law or a law of a foreign country, being an activity engaged in or carried on in the performance of the functions of the office or in the exercise of the power (otherwise than in a private capacity);
(e) the proceedings of an Australian Parliament, a House of an Australian Parliament, a committee of such a House or a committee of an Australian Parliament;
(f) the proceedings of a legislature of a foreign country, including a House or committee (however described) of such a legislature.
(2) A reference in this Act to a business also includes a reference to:
(a) a business that is not engaged in or carried on for profit; or
(b) a business engaged in or carried on outside Australia.
2 References to examination in chief, cross - examination and re - examination
(1) A reference in this Act 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, not being questioning that is re - examination.
(2) A reference in this Act 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.
(3) A reference in this Act 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, being questioning (other than further examination in chief with the leave of the court) conducted after the cross - examination of the witness by another party.
(4) If a party has recalled a witness who has already given evidence, a reference in this Act 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 the purposes of 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.
(1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if:
(a) the person is dead; or
(b) 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
(c) the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability; or
(d) it would be unlawful for the person to give the evidence; or
(e) a provision of this Act prohibits the evidence being given; or
(f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or secure his or her attendance, but without success; or
(g) 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.
(2) In all other cases the person is taken to be available to give evidence about the fact.
5 Unavailability of documents and things
For the purposes of this Act, a document or thing is taken not to be available to a party if and only if:
(a) it cannot be found after reasonable inquiry and search by the party; or
(b) it was destroyed by the party, or by a person on behalf of the party, otherwise than in bad faith, or was destroyed by another person; or
(c) it would be impractical to produce the document or thing during the course of the proceeding; or
(d) production of the document or thing during the course of the proceeding could render a person liable to conviction for an offence; or
(e) it is not in the possession or under the control of the party and:
(i) it cannot be obtained by any judicial procedure of the court; or
(ii) it is in the possession or under the control of another party to the proceeding concerned 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
(iii) it was in the possession or under the control of such a party at a time when that party knew or might reasonably be expected to have known that such evidence was likely to be relevant in the proceeding.
6 Representations in documents
For the purposes of this Act, a representation contained in a document is taken to have been made by a person if:
(a) the document was written, made or otherwise produced by the person;
(b) the representation was recognised by the person as his or her representation by signing, initialling or otherwise marking the document.
(1) A reference in this Act to a witness includes a reference to a party giving evidence.
(2) A reference in this Act to a witness who has been called by a party to give evidence includes a reference to the party giving evidence.
(3) A reference in this clause to a party includes a defendant in a criminal proceeding.
A reference in this Act to a document includes a reference to:
(a) any part of the document; or
(b) any copy, reproduction or duplicate of the document or of any part of the document; or
(c) any part of such a copy, reproduction or duplicate.
In this Act:
(a) a reference to a person appointed or holding office under or because of an Australian law or a law of the Commonwealth includes a reference to an APS employee; and
(b) in that context, a reference to an office is a reference to the position occupied by the APS employee concerned.
(1) A reference in this Act 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.
(2) A reference in this Act 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
(1) A reference in this Act to a child of a person includes a reference to:
(a) an adopted child or ex - nuptial child of the person; or
(b) a child living with the person as if the child were a member of the person's family.
(2) A reference in this Act to a parent of a person includes a reference to:
(a) an adoptive parent of the person; or
(b) if the person is an ex - nuptial child--the person's natural father; or
(c) the person with whom a child is living as if the child were a member of the person's family.
11 References to de facto partners
(1) A reference in this Act to a de facto partner of a person is a reference to a person who is in a de facto relationship with the person.
(2) A person is in a de facto relationship with another person if the two persons have a relationship as a couple and are not legally married.
(3) In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as are relevant in the circumstances of the particular case:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(d) the ownership, use and acquisition of their property;
(e) the degree of mutual commitment to a shared life;
(f) the care and support of children;
(g) the reputation and public aspects of the relationship.
(4) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether two persons have a relationship as a couple.
(5) For the purposes of subclause (3), the following matters are irrelevant:
(a) whether the persons are different sexes or the same sex;
(b) whether either of the persons is legally married to someone else or in another de facto relationship.