Statute Law Amendment (Evidence Consequential Provisions) Act 2009

i Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1 Purposes 1 2 Commencement 1 PART 2—AMENDMENT OF THE EVIDENCE ACT 1958 3 3 Change of short title 3 4 Repeal of certain provisions of Division 1 of Part I 3 5 Repeal of Division 2 of Part I 3 6 Repeal of Division 4 of Part I 3 7 Repeal of Division 1 of Part II 3 8 Amendment of Division 2 of Part II 3 9 Amendment of Division 3 of Part II 4 10 Amendment of Division 3AA of Part II 4 11 Repeal of Division 4 of Part II 4 12 Repeal of Division 1 of Part III 4 13 Repeal of Division 2 of Part III 4 14 Amendment of Division 2A of Part III 5 15 Repeal of Division 3 of Part III 5 16 Repeal of Division 3A of Part III 5 17 Amendment of Division 4 of Part III 5 18 Repeal of certain sections of Division 5 of Part III 5 19 Section 74 substituted 5 74 Evidence of contents of will 5 20 Repeal of Division 5A of Part III 6 21 Repeal of certain sections of Division 6 of Part III 6 22 Sections 80 and 81 substituted 6 80 Judicial notice of certain seals etc 6 81 Effect of judicial or official notice 6 23 Repeal of Division 7 of Part III 7 24 Repeal of Division 8 of Part III 7 25 New section 89F inserted 7 89F Division to be in addition to Evidence Act 2008 7 26 Repeal of Part IIIA 7 -- 1 of 80 -- Section Page ii 27 Division 2 of Part IV substituted 7 Division 2—Oaths and affirmations 7 100 Application of Division 7 101 Manner of administration of oaths and affirmations 8 102 Choice of oath or affirmation 8 103 Requirements for oaths 9 104 Affirmations in writing 9 28 Sections 127 and 128 substituted 9 127 Certain provisions of Part IV apply to certain attestations 9 128 Attestations etc. before a justice 10 29 Forgery and similar offences 11 30 Repeal of certain sections of Part VIII 11 31 Section 149A substituted 11 149A Admissions of fact in confiscation proceedings 11 32 Regulations 12 33 Repeal of certain sections of Part VIII 12 34 Insertion of new sections 161 and 162 12 161 Transitional provision—Statute Law Amendment (Evidence Consequential Provisions) Act 2009 12 162 Transitional provision—interpretation of references 13 35 Amendment to Second Schedule 13 36 Substitution of Third Schedule 14 THIRD SCHEDULE 14 PART 1—FORM OF OATH AND AFFIRMATION 14 Form of oath 14 Form of affirmation 14 PART 2—AFFIRMATIONS IN WRITING 14 Form of commencement of written affirmation 14 Form in lieu of jurat 14 PART 3—AMENDMENT OF CRIMES ACT 1958 15 37 Husband and wife 15 38 Evidence of financial position of company 15 39 Definitions 15 40 Destruction of evidence 15 41 Trial where accused has previous convictions 15 42 Admissibility of propensity evidence 16 43 The accused, husbands and wives as witnesses for the defence; evidence of character of the accused 16 44 Wife or husband etc. of the accused to be competent and compellable witness 16 -- 2 of 80 -- Section Page iii 45 Provision for simplifying proof of previous offences 16 46 Determination of age 16 47 Depositions on one charge may be read in prosecution of others 16 48 Issue of warrant when witness does not appear 16 49 View 16 50 Right to remain silent etc. not affected 17 51 New section 613 inserted 17 613 Transitional provision—Statute Law Amendment (Evidence Consequential Provisions) Act 2009 17 PART 4—AMENDMENTS TO THE EVIDENCE ACT 2008 19 52 Unavailability of persons 19 53 New Schedule 2 inserted 19 SCHEDULE 2—Transitional Provisions 19 PART 1—GENERAL 19 1 Definitions 19 2 Application of this Act on commencement day 19 3 Application of section 128A 20 4 Application of Part 3.10 to disclosure requirements 20 5 Identifications already carried out 21 6 Documents and evidence produced before commencement day by processes, machines and other devices 21 7 Documents attested and verified before the commencement day 21 8 Matters of official record published before the commencement day 22 9 Agreed facts 23 10 Application of Act to improperly or illegally obtained evidence 23 PART 2—APPLICATION OF NOTIFICATION PROVISIONS 23 11 Notification provisions 23 12 Notice of intention to adduce hearsay evidence 24 13 Notice of intention to adduce evidence as to tendency or coincidence 24 14 Time limits for making requests 25 15 Requests under section 173 26 16 Proof of voluminous or complex documents 26 -- 3 of 80 -- Section Page iv PART 5—MISCELLANEOUS 27 54 Consequential amendments to other Acts 27 55 Repeal of amending Act 27 __________________ SCHEDULE 28 PART 1—CONSEQUENTIAL AMENDMENTS 28 1 Accident Compensation Act 1985 28 2 Australia and New Zealand Banking Group Act 1970 28 3 Australia and New Zealand Banking Group Limited (NMRB) Act 1991 28 4 Bail Act 1977 29 5 Bank Integration Act 1992 29 6 Charities Act 1978 29 7 Children, Youth and Families Act 2005 29 8 Commissioner for Law Enforcement Data Security Act 2005 31 9 Confiscation Act 1997 31 10 Construction Industry Long Service Leave Act 1997 31 11 Coroners Act 2008 32 12 County Court Act 1958 34 13 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 35 14 Criminal Procedure Act 2009 35 15 Dangerous Goods Act 1985 35 16 Disability Act 2006 36 17 Duties Act 2000 36 18 Electoral Act 2002 36 19 Electricity Industry (Residual Provisions) Act 1993 36 20 Emerald Tourist Railway Act 1977 38 21 Equipment (Public Safety) Act 1994 38 22 Family Violence Protection Act 2008 38 23 Film Act 2001 40 24 Food Act 1984 40 25 Food Amendment (Regulation Reform) Act 2009 40 26 Freedom of Information Act 1982 41 27 Gambling Regulation Act 2003 41 28 Gas Industry (Residual Provisions) Act 1994 41 29 Health Records Act 2001 41 30 Health Services Act 1988 42 31 Health Services (Conciliation and Review) Act 1987 43 32 House Contracts Guarantee Act 1987 43 -- 4 of 80 -- Section Page v 33 Juries Act 2000 43 SCHEDULE 3—Swearing of Jurors on Empanelment 43 Oaths by jurors—Criminal Trial 43 Oaths by jurors—Civil Trial 43 Affirmations by jurors—Criminal Trial 44 Affirmations by jurors—Civil Trial 44 SCHEDULE 4—Swearing of Jurykeepers 44 Oaths by jurykeepers 44 Affirmations by jurykeepers 44 SCHEDULE 5—Swearing of Jurors Separating During Deliberations 45 Oaths by jurors 45 Affirmations by jurors 45 34 Magistrates' Court Act 1989 46 35 Major Crime (Investigative Powers) Act 2004 48 36 Marine Act 1988 48 37 Mineral Resources (Sustainable Development) Act 1990 48 38 National Australia Bank and Bank of New Zealand Act 1997 49 39 National Mutual Royal Savings Bank Limited (Merger) Act 1987 49 40 Occupational Health and Safety Act 2004 49 41 Petroleum (Submerged Lands) Act 1982 50 42 Police Integrity Act 2008 50 65A Person may be examined without summons 50 43 Port Services Act 1995 50 44 Project Development and Construction Management Act 1994 51 45 Prostitution Control Act 1994 52 46 Public Administration Act 2004 52 47 Public Health and Wellbeing Act 2008 52 48 Public Records Act 1973 52 49 Rail Corporations Act 1996 52 50 Road Safety Act 1986 53 51 Sentencing Act 1991 54 52 Stalking Intervention Orders Act 2008 55 53 State Bank (Succession of Commonwealth Bank) Act 1990 56 54 Survey Co-ordination Act 1958 56 21B Certified copies of certain maps and documents to be prima facie evidence 56 55 Terrorism (Community Protection) Act 2003 58 56 The Commercial Bank of Australia Limited (Merger) Act 1982 59 -- 5 of 80 -- Section Page vi 57 The Commercial Banking Company of Sydney Limited (Merger) Act 1982 59 58 Transfer of Land Act 1958 59 59 Transport Accident Act 1986 60 60 Victims of Crime Assistance Act 1996 60 61 Victorian Plantations Corporation Act 1993 61 62 Water Act 1989 61 63 Water Industry Act 1994 61 64 Westpac and Bank of Melbourne (Challenge Bank) Act 1996 62 65 Whistleblowers Protection Act 2001 62 66 Wills Act 1997 62 67 Workers Compensation Act 1958 63 68 Working with Children Act 2005 63 PART 2—SUBSTITUTION OF REFERENCES TO "EVIDENCE ACT 1958" 64 1 Accident Compensation Act 1985 64 2 Administration and Probate Act 1958 64 3 Ambulance Services Act 1986 64 4 Appeal Costs Act 1998 64 5 Architects Act 1991 64 6 Bail Act 1977 64 7 Building Act 1993 64 8 Bus Safety Act 2009 65 9 Charities Act 1978 65 10 Children, Youth and Families Act 2005 65 11 Constitution Act 1975 65 12 Co-operative Housing Societies Act 1958 65 13 Coroners Act 2008 65 14 Corrections Act 1986 65 15 Country Fire Authority Act 1958 66 16 County Court Act 1958 66 17 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 66 18 Criminal Procedure Act 2009 66 19 Disability Act 2006 66 20 Education and Training Reform Act 2006 66 21 Firearms Act 1996 67 22 Fisheries Act 1995 67 23 Gambling Regulation Act 2003 67 24 Health Professions Registration Act 2005 67 25 Health Services Act 1988 67 26 Health Services (Conciliation and Review) Act 1987 67 27 Infertility Treatment Act 1995 67 28 Instruments Act 1958 67 29 Interpretation of Legislation Act 1984 68 -- 6 of 80 -- Section Page vii 30 Juries Act 2000 68 31 Local Government Act 1989 68 32 Magistrates' Court Act 1989 68 33 Major Transport Projects Facilitation Act 2009 68 34 Marine Act 1988 68 35 Metropolitan Fire Brigades Act 1958 68 36 Mineral Resources (Sustainable Development) Act 1990 69 37 Ombudsman Act 1973 69 38 Police Regulation Act 1958 69 39 Public Administration Act 2004 69 40 Public Health and Wellbeing Act 2008 69 41 Public Transport Competition Act 1995 69 42 Rail Safety Act 2006 69 43 Religious and Successory Trusts Act 1958 70 44 Retail Leases Act 2003 70 45 Securities Industry Act 1975 70 46 Securities Industry (Application of Laws) Act 1981 70 47 State Electricity Commission Act 1958 70 48 Supreme Court Act 1986 70 49 Surveillance Devices Act 1999 70 50 Surveying Act 2004 71 51 Telecommunications (Interception) (State Provisions) Act 1988 71 52 Terrorism (Community Protection) Act 2003 71 53 Transport Act 1983 71 54 Veterinary Practice Act 1997 71 55 Victims of Crime Assistance Act 1996 71 56 Victoria Grants Commission Act 1976 71 57 Victorian Civil and Administrative Tribunal Act 1998 72 58 Whistleblowers Protection Act 2001 72 59 Wrongs Act 1958 72 ═══════════════ ENDNOTES 73 -- 7 of 80 -- 1 Statute Law Amendment (Evidence Consequential Provisions) Act 2009 † No. 69 of 2009 [Assented to 24 November 2009] The Parliament of Victoria enacts: PART 1—PRELIMINARY 1 Purposes The purposes of this Act are to revise the statute law of Victoria as a consequence of the enactment of the Evidence Act 2008 and to make other amendments to that Act and for other purposes. 2 Commencement (1) This Act comes into operation on a day or days to be proclaimed. Victoria -- 8 of 80 -- Part 1—Preliminary Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 2 (2) If a provision of this Act does not come into operation before 1 January 2010, it comes into operation on that day. __________________ s. 2 -- 9 of 80 -- Part 2—Amendment of the Evidence Act 1958 Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 3 PART 2—AMENDMENT OF THE EVIDENCE ACT 1958 3 Change of short title In section 1 of the Evidence Act 1958, for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". 4 Repeal of certain provisions of Division 1 of Part I Section 5 of the Evidence Act 1958 is repealed. 5 Repeal of Division 2 of Part I Division 2 of Part I of the Evidence Act 1958 is repealed. 6 Repeal of Division 4 of Part I Division 4 of Part I of the Evidence Act 1958 is repealed. 7 Repeal of Division 1 of Part II Division 1 of Part II of the Evidence Act 1958 is repealed. 8 Amendment of Division 2 of Part II (1) Sections 26 and 27 of the Evidence Act 1958 are repealed. (2) Insert the following heading to section 28 of the Evidence Act 1958— "Confessions to doctors". s. 3 See: Act No. 6246. Reprint No. 16 as at 1 September 2008 and amending Act Nos 24/2008, 52/2008, 77/2008 and 7/2009. LawToday: www. legislation. vic.gov.au -- 10 of 80 -- Part 2—Amendment of the Evidence Act 1958 Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 4 (3) Section 28(1) of the Evidence Act 1958 is repealed. (4) Section 29 of the Evidence Act 1958 is repealed. (5) Sections 31, 32 and 32A of the Evidence Act 1958 are repealed. (6) In section 32G(1) of the Evidence Act 1958— (a) in paragraph (a)— (i) omit "37,"; (ii) omit ", 39 or 40"; (b) after paragraph (a) insert— "(ba) section 41, 103 or 127 of the Evidence Act 2008; or". 9 Amendment of Division 3 of Part II Sections 33, 34, 35, 36, 37, 38, 39, 40 and 41 of the Evidence Act 1958 are repealed. 10 Amendment of Division 3AA of Part II Sections 41C and 41F of the Evidence Act 1958 are repealed. 11 Repeal of Division 4 of Part II Division 4 of Part II of the Evidence Act 1958 is repealed. 12 Repeal of Division 1 of Part III Division 1 of Part III of the Evidence Act 1958 is repealed. 13 Repeal of Division 2 of Part III Division 2 of Part III of the Evidence Act 1958 is repealed. s. 9 -- 11 of 80 -- Part 2—Amendment of the Evidence Act 1958 Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 5 14 Amendment of Division 2A of Part III (1) Sections 53, 53A, 53B, 53C, 53D, 53E, 53F, 53G, 53H, 53J, 53K, 53L, 53M, 53N, 53P, 53R, 53S and 53T of Division 2A of Part III of the Evidence Act 1958 are repealed. (2) In section 53Q of the Evidence Act 1958, after "section 53C" and after "said section" insert "(as in force immediately before its repeal)". 15 Repeal of Division 3 of Part III Division 3 of Part III of the Evidence Act 1958 is repealed. 16 Repeal of Division 3A of Part III Division 3A of Part III of the Evidence Act 1958 is repealed. 17 Amendment of Division 4 of Part III Sections 60, 61, 62, 63, 64, 65, 66, 67, 68 and 69 of Division 4 of Part III of the Evidence Act 1958 are repealed. 18 Repeal of certain sections of Division 5 of Part III Sections 72, 73 and 75 of the Evidence Act 1958 are repealed. 19 Section 74 substituted For section 74 of the Evidence Act 1958 substitute— "74 Evidence of contents of will The probate of a will or codicil or letters of administration with the will or codicil annexed (obtained or having operation in Victoria) is evidence of the contents of the will or codicil.". s. 14 -- 12 of 80 -- Part 2—Amendment of the Evidence Act 1958 Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 6 20 Repeal of Division 5A of Part III Division 5A of Part III of the Evidence Act 1958 is repealed. 21 Repeal of certain sections of Division 6 of Part III Sections 76, 77, 78 and 79 of the Evidence Act 1958 are repealed. 22 Sections 80 and 81 substituted For sections 80 and 81 of the Evidence Act 1958 substitute— "80 Judicial notice of certain seals etc If it is provided by a subordinate instrument that a court or person acting judicially must or may take judicial notice of any seal, stamp, signature or any other matter or thing, then the court or person acting judicially must or may take judicial or official notice of the seal, stamp, signature or other matter or thing. 81 Effect of judicial or official notice If a court or person acting judicially takes judicial or official notice, under section 80, of a seal or signature attached or appended to a document, the court or person must presume— (a) that the seal or signature was properly attached or appended at the time and place (if any) purporting to be the time and place at which it was so attached or appended; and (b) that there was jurisdiction or authority to sign or seal the document at that time and place; and s. 20 -- 13 of 80 -- Part 2—Amendment of the Evidence Act 1958 Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 7 (c) that the document is what, on its construction, it purports to be; and (d) that the document is a valid and subsisting document.". 23 Repeal of Division 7 of Part III Division 7 of Part III of the Evidence Act 1958 is repealed. 24 Repeal of Division 8 of Part III Division 8 of Part III of the Evidence Act 1958 is repealed. 25 New section 89F inserted After section 89E of the Evidence Act 1958 insert— "89F Division to be in addition to Evidence Act 2008 This Division applies in relation to any civil proceeding in addition to any provision of the Evidence Act 2008 that applies in relation to that proceeding.". 26 Repeal of Part IIIA Part IIIA of the Evidence Act 1958 is repealed. 27 Division 2 of Part IV substituted For Division 2 of Part IV of the Evidence Act 1958 substitute— "Division 2—Oaths and affirmations 100 Application of Division This Division does not apply to an oath or affirmation made by a witness in a proceeding or by a person acting as an interpreter in a proceeding to which the Evidence Act 2008 applies. s. 24 -- 14 of 80 -- Part 2—Amendment of the Evidence Act 1958 Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 8 101 Manner of administration of oaths and affirmations (1) A person may take an oath, or make an affirmation in accordance with the appropriate form set out in Part 1 of the Third Schedule or in a similar form. (2) Such an affirmation has the same effect for all purposes as an oath. (3) An oath or affirmation may be administered to and taken, or made, by 2 or more persons at the same time. 102 Choice of oath or affirmation (1) A person who is required to take an oath may choose whether to take an oath or to make an affirmation. (2) The officer administering the oath or affirmation is to inform the person that he or she has this choice, unless the officer is satisfied that the person has already been informed or knows that he or she has the choice. (3) The officer administering the oath or affirmation may direct the person to make an affirmation if— (a) the person refuses to choose whether to take an oath or make an affirmation; or (b) it is not reasonably practicable for the person to take an appropriate oath. (4) In this Division— officer includes any person duly authorised to administer oaths and any person administering oaths under the direction of any court or any person acting judicially. s. 27 -- 15 of 80 -- Part 2—Amendment of the Evidence Act 1958 Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 9 103 Requirements for oaths (1) It is not necessary that a religious text be used in taking an oath. (2) An oath is effective even if the person who took it did not have a religious belief or did not have a religious belief of a particular kind. 104 Affirmations in writing An affirmation in writing must commence and use the form in lieu of jurat set out in Part 2 of the Third Schedule.". 28 Sections 127 and 128 substituted For sections 127 and 128 of the Evidence Act 1958 substitute— "127 Certain provisions of Part IV apply to certain attestations (1) Divisions 6, 9 and 10 of Part IV extend to the following— (a) the taking of a recognisance of bail; (b) an attestation, verification, acknowledgement or signature in relation to any document required, authorised or permitted, by or under any Act or otherwise to be attested, verified, acknowledged or signed; (c) the doing of a notarial act— subject to the modification that for words relating the administration of oaths and the taking of affidavits there should be substituted words relating the doing of the relevant act set out in paragraph (a), (b) or (c). s. 28 -- 16 of 80 -- Part 2—Amendment of the Evidence Act 1958 Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 10 (2) Subsection (1) does not apply— (a) to any matter or thing that is required to be attested, verified, acknowledged or signed before a court or a judge; or (b) if there is a contrary intention expressed in relation to the action. (3) In this section, notarial act includes an act of attestation or verification by a public notary in accordance with a requirement by or under an Act of Parliament or otherwise. 128 Attestations etc. before a justice (1) If, by or under an Act of Parliament or subordinate instrument, a document is required, authorised or permitted to be attested or verified by, or acknowledged or signed before a justice of the peace, it is sufficient compliance with the requirement for a justice of the peace (or an equivalent office holder)— (a) in another State or a Territory of the Commonwealth; or (b) in any part of Her Majesty's dominions— to have carried out the action. (2) All courts and persons acting judicially must take judicial or official notice of a signature of a justice of the peace (or an equivalent office holder)— (a) in another State or a Territory of the Commonwealth; or s. 28 -- 17 of 80 -- Part 2—Amendment of the Evidence Act 1958 Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 11 (b) in any part of Her Majesty's dominions— if the signature is attached or appended to a document and the place where the signature was so attached or appended purports to be shown.". 29 Forgery and similar offences (1) In section 142 of the Evidence Act 1958— (a) in paragraph (a), after "any provision of this Act" insert ", or the Evidence Act 2008"; (b) in paragraph (b), after "any provision of this Act" insert ", or the Evidence Act 2008"; (c) in paragraph (c), after "any provision of this Act" insert ", or the Evidence Act 2008,". (2) In section 143 of the Evidence Act 1958, after "any provision of this Act" insert ", or the Evidence Act 2008,". 30 Repeal of certain sections of Part VIII Sections 146, 147, 148 and 149 of the Evidence Act 1958 are repealed. 31 Section 149A substituted For section 149A of the Evidence Act 1958 substitute— "149A Admissions of fact in confiscation proceedings Subject to the express provisions of any Act, but despite any rule of law or procedure or any practice to the contrary, the accused person in any proceedings under the Confiscation Act 1997 may make an admission of any fact or matter that is relevant in the proceedings and any person acting judicially may accept the admission as s. 29 -- 18 of 80 -- Part 2—Amendment of the Evidence Act 1958 Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 12 sufficient evidence of that fact or matter without further proof unless he or she is of the opinion that it would be contrary to the interests of justice to do so having regard to all the circumstances of the case.". 32 Regulations In section 152(1) of the Evidence Act 1958— (a) in paragraph (b), for "Court; and" substitute "Court."; (b) paragraph (c) is repealed. 33 Repeal of certain sections of Part VIII Sections 149AB, 149B, 149C, 150, 153, 154, 156, 157 and 158 of the Evidence Act 1958 are repealed. 34 Insertion of new sections 161 and 162 After section 160 of the Evidence Act 1958 insert— "161 Transitional provision—Statute Law Amendment (Evidence Consequential Provisions) Act 2009 (1) This Act, as amended by the Statute Law Amendment (Evidence Consequential Provisions) Act 2009, applies to any proceeding commenced on or after the day that Act commences. (2) In the case of any proceeding that commenced before the day the Statute Law Amendment (Evidence Consequential Provisions) Act 2009 commenced, this Act, as amended by the Statute Law Amendment (Evidence Consequential Provisions) Act 2009, applies to that part of the proceeding that takes place on or after s. 32 -- 19 of 80 -- Part 2—Amendment of the Evidence Act 1958 Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 13 that day, other than a hearing in the proceeding to which subsection (3) applies. (3) This Act as in force immediately before the commencement of the Statute Law Amendment (Evidence Consequential Provisions) Act 2009 continues to apply to any hearing in a proceeding that commenced before the day that Act commenced and that— (a) continues on or after that day; or (b) was adjourned until that day or a day after that day. 162 Transitional provision—interpretation of references A reference in any other Act (other than this Act) or in any instrument made under any Act or in any other document of any kind to a provision of the Evidence Act 1958 that is not repealed by the Statute Law Amendment (Evidence Consequential Provisions) Act 2009, is to be taken to be a reference to the provision of the same number in the Evidence (Miscellaneous Provisions) Act 1958, so far as it applies to any period on or after the commencement of the Statute Law Amendment (Evidence Consequential Provisions) Act 2009.". 35 Amendment to Second Schedule In the Second Schedule to the Evidence Act 1958, for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". s. 35 -- 20 of 80 -- Part 2—Amendment of the Evidence Act 1958 Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 14 36 Substitution of Third Schedule For the Third Schedule to the Evidence Act 1958 substitute— "THIRD SCHEDULE PART 1—FORM OF OATH AND AFFIRMATION Form of oath 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 (followed by the words of the oath prescribed or allowed by law). Form of affirmation I solemnly and sincerely declare and affirm that (followed by the words of the oath prescribed or allowed by law). PART 2—AFFIRMATIONS IN WRITING Form of commencement of written affirmation I, (name of person making affirmation) of (address of person making affirmation), do solemnly and sincerely affirm. Form in lieu of jurat Affirmed at (place where affirmed), this (date affirmed) day of (month and year), before me. __________________". __________________ s. 36 -- 21 of 80 -- Part 3—Amendment of Crimes Act 1958 Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 15 PART 3—AMENDMENT OF CRIMES ACT 1958 37 Husband and wife Section 95(2) of the Crimes Act 1958 is repealed. 38 Evidence of financial position of company Section 192 of the Crimes Act 1958 is repealed. 39 Definitions In section 253 of the Crimes Act 1958, in the definition of legal proceeding, for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". 40 Destruction of evidence In section 254 of the Crimes Act 1958, for the first note at the foot of subsection (1) substitute— "1 Document is defined in the Evidence Act 2008.". 41 Trial where accused has previous convictions (1) In section 395(2) of the Crimes Act 1958, for "may, subject to subsection (4)," substitute "may". s. 37 See: Act No. 6231. Reprint No. 21 as at 7 May 2009 and amending Act Nos 16/2004, 9/2008, 46/2008, 78/2008, 4/2009, 7/2009, 22/2009 and 25/2009. LawToday: www. legislation. vic.gov.au -- 22 of 80 -- Part 3—Amendment of Crimes Act 1958 Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 16 (2) For section 395(3) of the Crimes Act 1958 substitute— "(3) In subsection (2) certified statement of conviction means a certificate referred to in section 178(2) of the Evidence Act 2008.". (3) Sections 395(4), (5) and (7) of the Crimes Act 1958 are repealed. 42 Admissibility of propensity evidence Section 398A of the Crimes Act 1958 is repealed. 43 The accused, husbands and wives as witnesses for the defence; evidence of character of the accused Section 399 of the Crimes Act 1958 is repealed. 44 Wife or husband etc. of the accused to be competent and compellable witness Section 400 of the Crimes Act 1958 is repealed. 45 Provision for simplifying proof of previous offences Section 401 of the Crimes Act 1958 is repealed. 46 Determination of age Section 411 of the Crimes Act 1958 is repealed. 47 Depositions on one charge may be read in prosecution of others Section 413 of the Crimes Act 1958 is repealed. 48 Issue of warrant when witness does not appear Section 415 of the Crimes Act 1958 is repealed. 49 View Section 419 of the Crimes Act 1958 is repealed. s. 42 -- 23 of 80 -- Part 3—Amendment of Crimes Act 1958 Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 17 50 Right to remain silent etc. not affected In section 464J of the Crimes Act 1958, after paragraph (b) insert— "(ba) the onus on the prosecution to prove that an admission or confession was made in such circumstances as to make it unlikely that the truth of the admission or confession was adversely affected; or". 51 New section 613 inserted After section 612 of the Crimes Act 1958 insert— "613 Transitional provision—Statute Law Amendment (Evidence Consequential Provisions) Act 2009 (1) This Act, as amended by the Statute Law Amendment (Evidence Consequential Provisions) Act 2009, applies to any proceeding commenced on or after the day that Act commences. (2) In the case of any proceeding that commenced before the day the Statute Law Amendment (Evidence Consequential Provisions) Act 2009 commenced, this Act, as amended by the Statute Law Amendment (Evidence Consequential Provisions) Act 2009, applies to that part of the proceeding that takes place on or after that day, other than a hearing in the proceeding to which subsection (3) applies. (3) This Act as in force immediately before the commencement of the Statute Law Amendment (Evidence Consequential Provisions) Act 2009 continues to apply to any hearing in a proceeding that commenced before the day that Act commenced and that— s. 50 -- 24 of 80 -- Part 3—Amendment of Crimes Act 1958 Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 18 (a) continues on or after that day; or (b) was adjourned until that day or a day after that day.". __________________ s. 51 -- 25 of 80 -- Part 4—Amendments to the Evidence Act 2008 Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 19 PART 4—AMENDMENTS TO THE EVIDENCE ACT 2008 52 Unavailability of persons In clause 4(1) of Part 2 of the Dictionary to the Evidence Act 2008— (a) in paragraph (f), for "success." substitute "success; or"; (b) after paragraph (f) insert— "(g) the person is mentally or physically unable to give evidence and it is not reasonably practicable to overcome that inability.". 53 New Schedule 2 inserted After Schedule 1 to the Evidence Act 2008 insert— "SCHEDULE 2 TRANSITIONAL PROVISIONS PART 1—GENERAL 1 Definitions In this Schedule— commencement day means the day this Act (other than Part 1 and the Dictionary) commences. 2 Application of this Act on commencement day (1) Except as otherwise provided by this Schedule, this Act applies to any proceeding (within the operation of section 4) commenced on or after the commencement day. s. 52 -- 26 of 80 -- Part 4—Amendments to the Evidence Act 2008 Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 20 (2) Except as otherwise provided by this Schedule, in the case of any proceeding (within the operation of section 4) that commenced before the commencement day, this Act applies to that part of the proceeding that takes place on or after the commencement day, other than any hearing in the proceeding that commenced before the commencement day and— (a) continued on or after the commencement day; or (b) was adjourned until the commencement day or a day after the commencement day. 3 Application of section 128A Section 128A does not apply to an order made before the commencement day that would, if it were made after the commencement day, be a disclosure order within the meaning of that section. 4 Application of Part 3.10 to disclosure requirements (1) Part 3.10 does not apply in respect of— (a) a process or order of the court that requires the disclosure of information or a document issued or ordered before the commencement day that would, if it were issued or ordered after the commencement day, be a disclosure requirement within the meaning of section 131A; or (b) a summons or subpoena issued on or after the commencement day to give evidence or produce documents at a hearing to which clause 2(2)(a) or (b) applies. s. 53 -- 27 of 80 -- Part 4—Amendments to the Evidence Act 2008 Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 21 (2) Despite subclause (1)(a), Part 3.10 applies to a summons or subpoena to give evidence issued before the commencement day if the evidence is to be given at a hearing to which this Act applies. 5 Identifications already carried out (1) Section 114 does not apply in relation to an identification made before the commencement day. (2) Section 115 does not apply in relation to an identification made before the commencement day. 6 Documents and evidence produced before commencement day by processes, machines and other devices (1) Section 146 has effect on and from the commencement day with respect to the production of a document or thing that occurred before the commencement day. (2) Section 147 has effect on and from the commencement day with respect to the production of a document that occurred before the commencement day. 7 Documents attested and verified before the commencement day (1) Section 148 has effect on and from the commencement day with respect to the attestation, verification, signing or acknowledgement of a document that occurred before the commencement day. (2) Section 149 has effect on and from the commencement day with respect to the attestation or signing of a document that occurred before the commencement day. s. 53 -- 28 of 80 -- Part 4—Amendments to the Evidence Act 2008 Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 22 8 Matters of official record published before the commencement day (1) Section 153 has effect on and from the commencement day with respect to the publication of a document referred to in that section that occurred before the commencement day. (2) Section 154 has effect on and from the commencement day with respect to the publication of a document referred to in that section that occurred before the commencement day. (3) Section 155 has effect on and from the commencement day with respect to the signing and sealing or certification of a document referred to in that section that occurred before the commencement day. (4) Section 156 has effect on and from the commencement day with respect to the sealing or certification of a document referred to in that section that occurred before the commencement day. (5) Section 157 has effect on and from the commencement day with respect to the sealing or signing of a document referred to in that section that occurred before the commencement day. (6) Section 158 has effect on and from the commencement day with respect to the sealing or signing and sealing of a public document referred to in that section that occurred before the commencement day. (7) Section 159 has effect on and from the commencement day with respect to the publication of a document referred to in that s. 53 -- 29 of 80 -- Part 4—Amendments to the Evidence Act 2008 Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 23 section that occurred before the commencement day. 9 Agreed facts The reference in section 191(3)(a) to an agreement is taken on and from the commencement day to include a reference to an agreement entered into before the commencement day under section 149AB(3) of the Evidence Act 1958, as in force immediately before its repeal. 10 Application of Act to improperly or illegally obtained evidence Section 139 does not apply in relation to a statement made or an act done before the commencement day. PART 2—APPLICATION OF NOTIFICATION PROVISIONS 11 Notification provisions (1) If, before the commencement day, a document of a kind referred to in a notification provision is given or served— (a) in the circumstances provided for in that provision; and (b) in accordance with such requirements (if any) as would apply to the giving or serving of the document under that provision on and after its commencement— on and from the commencement day the document is taken to have been given or served in accordance with that provision. s. 53 -- 30 of 80 -- Part 4—Amendments to the Evidence Act 2008 Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 24 (2) The following sections are notification provisions for the purposes of subclause (1)— (a) section 33(2)(c); (b) section 49(a); (c) section 50(2)(a); (d) section 67(1); (e) section 68(2); (f) section 73(2)(b); (g) section 97; (h) section 98; (i) sections 168(1), (3), (5) and (6); (j) section 173(1); (k) sections 177(2) and 177(5). 12 Notice of intention to adduce hearsay evidence If a notice given before the commencement day is taken, by the operation of clause 11, to have been given under section 67(1), the period for an objection to be made under section 68 to the tender of evidence to which the notice relates is the later of the period ending— (a) 7 days after the commencement day; or (b) 21 days after the notice was given to the party concerned. 13 Notice of intention to adduce evidence as to tendency or coincidence (1) References in sections 97(1)(a) and 98(1)(a) to giving notice are taken to include references to giving notice of the kind s. 53 -- 31 of 80 -- Part 4—Amendments to the Evidence Act 2008 Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 25 referred to in those sections before the commencement day. (2) Despite clause 11(1)(b), a notice of a kind referred to in section 97 or 98 given before the commencement day is taken to have been given in accordance with any regulations or rules made for the purposes for section 99. 14 Time limits for making requests (1) A request made before the commencement day that would, if it were made after the commencement day be a request under section 167, is taken to be such a request. (2) If a notice given before the commencement day is taken, by the operation of clause 11, to have been given under section 168(1) or (3), the period for a request to be made under section 168(1) or (3) is the later of the period ending— (a) 7 days after the commencement day; or (b) 21 days after the notice was given to the party concerned. (3) If a copy of a document served before the commencement day is taken, by the operation of clause 11, to have been served under section 168(5) or (6), the period for a request to be made under section 168(5) or (6) is the later of the period ending— (a) 7 days after the commencement day; or (b) 21 days after the document was served on the party concerned. (4) If a request made under section 168 was received before the commencement day, in determining what is a reasonable time after receiving a request for the purposes of section 169(2), the court may take into s. 53 -- 32 of 80 -- Part 4—Amendments to the Evidence Act 2008 Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 26 account time passed before the commencement day. 15 Requests under section 173 A request made before the commencement day that would, if it were made after the commencement day be a request under section 173(2), is taken to be such a request. 16 Proof of voluminous or complex documents If a court has given a direction under section 42B of the Evidence Act 1958, as in force immediately before its repeal, and a party has been provided with a copy of the evidence in the form specified in that direction, the party is taken, for the purposes of section 50(2)(b), to have been given a reasonable opportunity to examine or copy documents. __________________". __________________ s. 53 -- 33 of 80 -- Part 5—Miscellaneous Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 27 PART 5—MISCELLANEOUS 54 Consequential amendments to other Acts On the coming into operation of an item in the Schedule, the Act referred to in the heading to that item is amended as set out in that item. 55 Repeal of amending Act This Act is repealed on 1 January 2011. Note The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). __________________ s. 54 -- 34 of 80 -- Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 28 SCHEDULE PART 1—CONSEQUENTIAL AMENDMENTS 1 Accident Compensation Act 1985 1.1 After section 44(4) insert— "(5) Nothing in subsection (1) prevents the application of Part 3.10 of the Evidence Act 2008 to the proceedings.". 2 Australia and New Zealand Banking Group Act 1970 2.1 For section 7(2) substitute— "(2) In this section document has the same meaning as in the Evidence Act 2008.". 2.2 For section 19(2) substitute— "(2) In this section document has the same meaning as in the Evidence Act 2008.". 2.3 Sections 8 and 20 are repealed. 3 Australia and New Zealand Banking Group Limited (NMRB) Act 1991 3.1 For section 10(2) substitute— "(2) Without limiting subsection (1), the books of account of NMRB are for the purposes of the Evidence Act 2008 deemed to form part of the records belonging to or kept by ANZ.". 3.2 For section 18(2) substitute— "(2) Without limiting subsection (1), the books of account of NMR Savings Bank are for the purposes of the Evidence Act 2008 deemed to form part of the records belonging to or kept by ANZ Savings Bank.". Sch. -- 35 of 80 -- Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 29 3.3 For section 19(2) substitute— "(2) Without limiting subsection (1), the books of account of NMR Savings Bank are for the purposes of the Evidence Act 2008 deemed to form part of the records belonging to or kept by ANZ.". 3.4 Sections 10(3), 18(3) and 19(3) are repealed. 4 Bail Act 1977 4.1 At the end of section 8 insert— "(2) Nothing in subsection (1)(a) prevents the application of Part 3.10 of the Evidence Act 2008.". 5 Bank Integration Act 1992 5.1 In section 20(1)— (a) for "Division 3A of Part III of the Evidence Act 1958 continues to apply" substitute "The Evidence Act 2008 applies"; (b) after "day" insert "as if those books of account and entries were business records". 5.2 Section 20(2) is repealed. 6 Charities Act 1978 6.1 In section 8, in the definition of document, for "Evidence Act 1958" substitute "Evidence Act 2008". 7 Children, Youth and Families Act 2005 7.1 In the heading to section 199, after "privilege" insert "and client legal privilege". 7.2 In section 199, after "privilege" insert "or client legal privilege". Sch. -- 36 of 80 -- Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 30 7.3 At the end of section 215 insert— "(7) Nothing in subsection (1)(d) prevents the application of Part 3.10 of the Evidence Act 2008.". 7.4 In section 234(1)(b), after "privilege" insert "or client legal privilege". 7.5 After section 520(6) insert— "(6A) To avoid doubt, Part 3.10 of the Evidence Act 2008 does not apply to the Koori Court (Criminal Division) in considering the sentence to impose on an offender under this section, unless the Koori Court (Criminal Division) directs, in accordance with section 4(2) of the Evidence Act 2008, that that Act applies.". 7.6 At the end of section 520E insert— "(6) To avoid doubt, Part 3.10 of the Evidence Act 2008 does not apply to the Neighbourhood Justice Division in considering the sentence to impose on an offender under this section, unless the Neighbourhood Justice Division directs, in accordance with section 4(2) of the Evidence Act 2008, that that Act applies.". 7.7 Section 532(14)(a) is repealed. 7.8 After section 607 insert— "607A Transitional provisions—Statute Law Amendment (Evidence Consequential Provisions) Act 2009 (1) Section 215, as amended by the Statute Law Amendment (Evidence Consequential Provisions) Act 2009, does not apply to a hearing in the Family Division that commenced before the day that Act commenced and that— Sch. -- 37 of 80 -- Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 31 (a) continued on or after that day; or (b) was adjourned until that day or a day after that day. (2) Sections 520(6A) and 520E(6) do not apply to a sentencing hearing that commenced before the day the Statute Law Amendment (Evidence Consequential Provisions) Act 2009 commenced and that— (a) continued on or after that day; or (b) was adjourned until that day or a day after that day.". 8 Commissioner for Law Enforcement Data Security Act 2005 8.1 In section 12(3)(b), after "privilege" insert "or client legal privilege". 9 Confiscation Act 1997 9.1 In section 33(4), after "subject to" insert "Part 3.10 of the Evidence Act 2008 and". 9.2 In section 59(4), after "subject to" (where first occurring) insert "Part 3.10 of the Evidence Act 2008 and". 9.3 In section 64(3), after "subject to" (where first occurring) insert "Part 3.10 of the Evidence Act 2008 and". 10 Construction Industry Long Service Leave Act 1997 10.1 In section 38(2)— (a) for "Division 3A of Part III of the Evidence Act 1958 continues to apply" substitute "The Evidence Act 2008 applies"; Sch. -- 38 of 80 -- Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 32 (b) for "property." substitute "property, as if those books of account and entries were business records.". 10.2 Section 38(3) is repealed. 11 Coroners Act 2008 11.1 For section 62(2) substitute— "(2) Parts II, IIA and III of the Evidence (Miscellaneous Provisions) Act 1958 do not apply to the Coroners Court.". 11.2 After section 62(2) insert— "(3) Except as otherwise provided in this Act, the Evidence Act 2008 does not apply to the Coroners Court.". 11.3 In section 63(2), for "section 55AB of the Evidence Act 1958" substitute "sections 65(3), 65(4) and 65(6) of the Evidence Act 2008". 11.4 After section 74 insert— "74A Power of coroner to pay witness allowances and expenses If the coroner determines that a witness or an interpreter is entitled to payment of an allowance or reimbursement of expenses in relation to an inquest, the coroner may, in accordance with the rules, determine an amount to be paid to the witness or interpreter.". 11.5 After section 105(1)(b) insert— "(ba) any matter relating to payment of allowances or reimbursement of expenses of witnesses and interpreters;". Sch. -- 39 of 80 -- Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 33 11.6 In Schedule 1, after clause 19 insert— "20 Transitional provisions—Statute Law Amendment (Evidence Consequential Provisions) Act 2009 (1) If an investigation or inquest has commenced but is not completed immediately before the commencement of the Statute Law Amendment (Evidence Consequential Provisions) Act 2009— (a) this Act as in force immediately before that commencement continues to apply to the investigation or inquest on and after that commencement and a reference to a provision of the Evidence Act 1958 is a reference to that provision as in force immediately before that commencement; and (b) the Evidence (Crown Witnesses Allowances and Expenses) Regulations 2004, as in force before the repeal of section 152(1)(c) of the Evidence Act 1958, continue to apply to the investigation or inquest. (2) If the hearing of an inquest referred to in clause 7(1) or the hearing of an application referred to in clause 8(1) is not completed immediately before the commencement of the Statute Law Amendment (Evidence Consequential Provisions) Act 2009— (a) the old Act as in force immediately before that commencement continues to apply to the hearing of the inquest or application on and after that commencement and a reference to a provision of the Evidence Act 1958 is a reference to that provision as in force Sch. -- 40 of 80 -- Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 34 immediately before that commencement; and (b) the Evidence (Crown Witnesses Allowances and Expenses) Regulations 2004, as in force before the repeal of section 152(1)(c) of the Evidence Act 1958, continue to apply to the inquest or application.". 12 County Court Act 1958 12.1 After section 4G(5) insert— "(6) To avoid doubt, Part 3.10 of the Evidence Act 2008 does not apply to the Koori Court Division in considering the sentence to impose on an offender under this section, unless the Koori Court Division directs, in accordance with section 4(2) of the Evidence Act 2008, that that Act applies.". 12.2 After section 93 insert— "94 Transitional provision—Statute Law Amendment (Evidence Consequential Provisions) Act 2009 Section 4G, as amended by the Statute Law Amendment (Evidence Consequential Provisions) Act 2009, does not apply to a sentencing hearing that commenced before the day that Act commenced and that— (a) continued on or after that day; or (b) was adjourned until that day or a day after that day.". Sch. -- 41 of 80 -- Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 35 13 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 13.1 After section 11(1) insert— "(1A) Nothing in subsection (1) prevents the application of Part 3.10 of the Evidence Act 2008 to an investigation, and for the purposes of the application of Part 3.10 the investigation is taken to be a criminal proceeding.". 13.2 At the end of section 38 insert— "(2) Nothing in subsection (1) prevents the application of Part 3.10 of the Evidence Act 2008 to a hearing, and for the purposes of the application of Part 3.10 the investigation is taken to be a criminal proceeding.". 14 Criminal Procedure Act 2009 14.1 In section 134(1)(b), omit "warrant to arrest or". 14.2 At the end of section 134 insert— "Note Section 194 of the Evidence Act 2008 provides for the court to issue a warrant to apprehend a witness who does not attend court.". 14.3 In section 382(7), for "sections 55B(5) and" substitute "section". 15 Dangerous Goods Act 1985 15.1 In the second note at the foot of section 13C, after "legal professional privilege" insert "or client legal privilege". 15.2 For the heading to Division 12 of Part II substitute— "Division 12—Protections concerning self-incrimination, legal professional privilege and client legal privilege". Sch. Sch. -- 42 of 80 -- Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 36 15.3 In the heading to section 19G, after "privilege" insert "and client legal privilege". 15.4 In sections 19G(a) and 19G(b), after "privilege" insert "or client legal privilege". 16 Disability Act 2006 16.1 In section 123(2)(a), after "privilege" insert "or client legal privilege". 16.2 In section 124(10), after "privilege" insert "or client legal privilege". 16.3 In the heading to section 215, after "privilege" insert "or client legal privilege". 16.4 In section 215, after "privilege" insert "or client legal privilege". 17 Duties Act 2000 17.1 Section 174(3) is repealed. 18 Electoral Act 2002 18.1 At the end of section 127 insert— "(2) Part 3.10 of the Evidence Act 2008 applies to proceedings in the Court of Disputed Returns.". 19 Electricity Industry (Residual Provisions) Act 1993 19.1 In section 75(2)— (a) for "Division 3A of Part III of the Evidence Act 1958 continues to apply" substitute "The Evidence Act 2008 applies"; (b) for "property." substitute "property, as if those books of account and entries were business records.". 19.2 In section 110(2)— (a) for "Division 3A of Part III of the Evidence Act 1958 continues to apply" substitute "The Evidence Act 2008 applies"; Sch. -- 43 of 80 -- Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 37 (b) for "property." substitute "property, as if those books of account and entries were business records.". 19.3 In section 128(2)— (a) for "Division 3A of Part III of the Evidence Act 1958 continues to apply" substitute "The Evidence Act 2008 applies"; (b) for "property." substitute "property, as if those books of account and entries were business records.". 19.4 In section 147(2)— (a) for "Division 3A of Part III of the Evidence Act 1958 continues to apply" substitute "The Evidence Act 2008 applies"; (b) for "property." substitute "property, as if those books of account and entries were business records.". 19.5 In section 153N(2)— (a) for "Division 3A of Part III of the Evidence Act 1958 continues to apply" substitute "The Evidence Act 2008 applies"; (b) for "property." substitute "property, as if those books of account and entries were business records.". 19.6 In section 153TK(2)— (a) for "Division 3A of Part III of the Evidence Act 1958 continues to apply" substitute "The Evidence Act 2008 applies"; (b) for "property." substitute "property, as if those books of account and entries were business records.". Sch. -- 44 of 80 -- Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 38 19.7 In section 153TZB(2)— (a) for "Division 3A of Part III of the Evidence Act 1958 continues to apply" substitute "The Evidence Act 2008 applies"; (b) for "property." substitute "property, as if those books of account and entries were business records.". 19.8 Sections 75(3), 110(3), 128(3), 147(3), 153N(3), 153TK(3) and 153TZB(3) are repealed. 20 Emerald Tourist Railway Act 1977 20.1 In section 38(9), for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958 or the Evidence Act 2008". 21 Equipment (Public Safety) Act 1994 21.1 In the second note at the foot of section 14B, after "legal professional privilege" insert "or client legal privilege". 21.2 For the heading to Division 12 of Part 3 substitute— "Division 12—Protections concerning self- incrimination, legal professional privilege and client legal privilege". 21.3 In the heading to section 23A, after "privilege" insert "and client legal privilege". 21.4 In sections 23A(a) and 23A(b), after "legal professional privilege" insert "or client legal privilege". 22 Family Violence Protection Act 2008 22.1 After section 20(3) insert— "(3A) Despite anything to the contrary in subsection (3), Part 3.10 of the Evidence Act 2008 applies in respect of an application Sch. -- 45 of 80 -- Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 39 made by telephone, fax or other electronic communication.". 22.2 For section 65(2) and the note at the foot of that section substitute— "(2) The following provisions apply to a proceeding for a family violence intervention order— (a) sections 13 and 41 and Part 3.10 of the Evidence Act 2008; (b) Division 2A of Part II of the Evidence (Miscellaneous Provisions) Act 1958. Note Section 13 of the Evidence Act 2008 provides for circumstances in which a person lacks capacity to give evidence. Section 41 of the Evidence Act 2008 provides for the court's powers to disallow improper questions. Part 3.10 of the Evidence Act 2008 provides for the application of privileges. Division 2A of Part II of the Evidence (Miscellaneous Provisions) Act 1958 provides for confidential communications in relation to proceedings with respect to sexual offences.". 22.3 After section 67(2) insert— "(3) This section applies despite anything to the contrary in the Evidence Act 2008.". 22.4 After section 224 insert— "Division 4—Statute Law Amendment (Evidence Consequential Provisions) Act 2009 224A Transitional provision—Statute Law Amendment (Evidence Consequential Provisions) Act 2009 (1) Section 20(3A) applies to an application for an interim order made under section 20 on or after the commencement of the Statute Law Sch. -- 46 of 80 -- Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 40 Amendment (Evidence Consequential Provisions) Act 2009. (2) Sections 65 and 67, as amended by the Statute Law Amendment (Evidence Consequential Provisions) Act 2009, do not apply to a hearing in a proceeding that commenced before the day that Act commenced and that— (a) continued on or after that day; or (b) was adjourned until that day or a day after that day.". 23 Film Act 2001 23.1 In section 53(2)— (a) for "Division 3A of Part III of the Evidence Act 1958 continues to apply" substitute "The Evidence Act 2008 applies"; and (b) for "property." substitute "property, as if those books of account and entries were business records.". 23.2 Section 53(3) is repealed. 24 Food Act 1984 24.1 After section 42(3) insert— "(4) Nothing in subsection (2)(b) prevents the application of Part 3.10 of the Evidence Act 2008.". 25 Food Amendment (Regulation Reform) Act 2009 25.1 In section 12, after proposed section 19BA(4) insert— "(5) Nothing in subsection (2)(b) prevents the application of Part 3.10 of the Evidence Act 2008.". Sch. -- 47 of 80 -- Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 41 26 Freedom of Information Act 1982 26.1 In section 32(1), after "privilege" insert "or client legal privilege". 27 Gambling Regulation Act 2003 27.1 In section 10.2A.11(3)(b), after "privilege" insert "or client legal privilege". 28 Gas Industry (Residual Provisions) Act 1994 28.1 In section 81(2)— (a) for "Division 3A of Part III of the Evidence Act 1958 continues to apply" substitute "The Evidence Act 2008 applies"; (b) for "property." substitute "property, as if those books of account and entries were business records.". 28.2 In section 126(2)— (a) for "Division 3A of Part III of the Evidence Act 1958 continues to apply" substitute "The Evidence Act 2008 applies"; (b) for "property." substitute "property, as if those books of account and entries were business records.". 28.3 Sections 81(3) and 126(3) are repealed. 29 Health Records Act 2001 29.1 In the heading to section 96, after "privilege" insert "and client legal privilege". 29.2 In sections 96(a) and 96(b), after "privilege" insert "or client legal privilege". 29.3 In clause 6.1(c) of Schedule 1, after "privilege" insert "or client legal privilege". Sch. -- 48 of 80 -- Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 42 30 Health Services Act 1988 30.1 In section 65K(2)— (a) for "Division 3A of Part III of the Evidence Act 1958 continues to apply" substitute "The Evidence Act 2008 applies"; (b) for "section 65C." substitute "section 65C, as if those books of account and entries were business records.". 30.2 In section 203(2)— (a) for "Division 3A of Part III of the Evidence Act 1958 continues to apply" substitute "The Evidence Act 2008 applies"; (b) for "section 181." substitute "section 181, as if those books of account and entries were business records.". 30.3 In section 218(2)— (a) for "Division 3A of Part III of the Evidence Act 1958 continues to apply" substitute "The Evidence Act 2008 applies"; (b) for "property." substitute "property, as if those books of account and entries were business records.". 30.4 In section 260(3)— (a) for "Division 3A of Part III of the Evidence Act 1958 continues to apply" substitute "The Evidence Act 2008 applies"; (b) for "liabilities." substitute "liabilities, as if those books of account and entries were business records.". 30.5 Sections 65K(3), 203(3), 218(3) and 260(4) are repealed. Sch. -- 49 of 80 -- Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 43 31 Health Services (Conciliation and Review) Act 1987 31.1 In sections 26(2)(a) and 27(10)(a), after "privilege" insert "or client legal privilege". 32 House Contracts Guarantee Act 1987 32.1 In section 63(2)— (a) for "Division 3A of Part III of the Evidence Act 1958 continues to apply" substitute "The Evidence Act 2008 applies"; (b) for "Division." substitute "Division, as if those books of account and entries were business records.". 33 Juries Act 2000 33.1 For Schedule 3 substitute— "SCHEDULE 3 Section 42 SWEARING OF JURORS ON EMPANELMENT Oaths by jurors—Criminal Trial You (or, if more than one person takes the oath, you and each of you) 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 you will faithfully and impartially try the issues between the Crown and [name of accused] in relation to all charges brought against [name of accused] in this trial and give a true verdict according to the evidence. Oaths by jurors—Civil Trial You (or, if more than one person takes the oath, you and each of you) 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 you will faithfully and impartially try the issues and assess the damages in the cause brought before you for trial or inquiry and give a true verdict according to the evidence. Sch. -- 50 of 80 -- Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 44 Affirmations by jurors—Criminal Trial You (or, if more than one person affirms, you and each of you) solemnly and sincerely declare and affirm that you will faithfully and impartially try the issues between the Crown and [name of accused] in relation to all charges brought against [name of accused] in this trial and give a true verdict according to the evidence. Affirmations by jurors—Civil Trial You (or, if more than one person affirms, you and each of you) solemnly and sincerely declare and affirm that you will faithfully and impartially try the issues and assess the damages in the cause brought before you for trial or inquiry and give a true verdict according to the evidence . __________________". 33.2 For Schedule 4 substitute— "SCHEDULE 4 Section 49 SWEARING OF JURYKEEPERS Oaths by jurykeepers You (and, if more than one person takes the oath, each of you) 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 you will well and truly keep this jury and each of its members committed to your charge and that, except on the order of the court, while they are in your charge, you will not allow any of them to communicate with any other person, or any other person with any of them, whether directly or indirectly, and that you will not, either during the trial or after it has finished, communicate with any juror about any evidence given or issues raised, directly or indirectly, at the trial. Affirmations by jurykeepers You (and, if more than one person affirms, each of you) solemnly and sincerely declare and affirm that you will well and truly keep this jury and each of its members committed to your charge and that, except on the order of the court, while they are in your charge, you will not allow any of Sch. -- 51 of 80 -- Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 45 them to communicate with any other person, or any other person with any of them, whether directly or indirectly, and that you will not, either during the trial or after it has finished, communicate with any juror about any evidence given or issues raised, directly or indirectly, at the trial. __________________". 33.3 For Schedule 5 substitute— "SCHEDULE 5 Section 50(2) SWEARING OF JURORS SEPARATING DURING DELIBERATIONS Oaths by jurors You (and, if more than one person takes the oath, each of you) 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 you will not discuss with any person other than another member of this jury any matter relating directly or indirectly to the evidence in this trial or the deliberations. Affirmations by jurors You (and, if more than one person affirms, each of you) solemnly and sincerely declare and affirm that you will not discuss with any person other than another member of this jury any matter relating directly or indirectly to the evidence in this trial or the deliberations. __________________". 33.4 After clause 14 of Schedule 6 insert— "15 Transitional provision—Statute Law Amendment (Evidence Consequential Provisions) Act 2009 An amendment made to this Act by the Statute Law Amendment (Evidence Consequential Provisions) Act 2009 Sch. -- 52 of 80 -- Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 46 applies only to juries empanelled on or after the commencement of that Act.". 34 Magistrates' Court Act 1989 34.1 After section 4G(5) insert— "(6) To avoid doubt, Part 3.10 of the Evidence Act 2008 does not apply to the Koori Court Division in considering the sentence to impose under this section, unless the Koori Court Division directs, in accordance with section 4(2) of the Evidence Act 2008, that it applies.". 34.2 After section 4Q(5) insert— "(6) To avoid doubt, Part 3.10 of the Evidence Act 2008 does not apply to the Neighbourhood Justice Division in considering the sentence to impose under this section, unless the Neighbourhood Justice Division directs, in accordance with section 4(2) of the Evidence Act 2008, that it applies.". 34.3 Section 43(9)(a) is repealed. 34.4 After section 57 insert— "57A Warrants to arrest issued under Evidence Act 2008 The provisions of this Division relating to warrants to arrest extend and apply to a warrant to arrest issued under section 194 of the Evidence Act 2008 except as otherwise provided in this Division.". 34.5 Sections 61(1)(b) and 61(5)(b) are repealed. 34.6 At the end of section 61 insert— "Note Section 194 of the Evidence Act 2008 provides for issuing warrants to arrest a witness who fails to appear.". Sch. -- 53 of 80 -- Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 47 34.7 After section 62(2) insert— "(3) This section does not apply in respect of a warrant authorised to be issued under section 194 of the Evidence Act 2008.". 34.8 After section 64(4) insert— "(5) Subsections (2), (3) and (4) do not apply in respect of a warrant authorised to be issued under section 194 of the Evidence Act 2008.". 34.9 After section 103(2) insert— "(2A) Nothing in subsection (2)(a) prevents the application of Part 3.10 of the Evidence Act 2008 to the conduct of an arbitration.". 34.10 Section 129 is repealed. 34.11 In clause 4 of Schedule 8, for "this Act or the Evidence Act 1958" substitute "this Act, the Evidence Act 2008 or the Evidence (Miscellaneous Provisions) Act 1958". 34.12 After clause 41 of Schedule 8 insert— "42 This Act, as in force immediately before the commencement of the Statute Law Amendment (Evidence Consequential Provisions) Act 2009, continues to apply to a hearing that commenced before the day that Act commenced and that— (a) continued on or after that day; or (b) was adjourned until that day or a day after that day.". Sch. -- 54 of 80 -- Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 48 35 Major Crime (Investigative Powers) Act 2004 35.1 After section 35 insert— "35A Person may be examined without summons (1) The Chief Examiner may require a person who— (a) is present at an examination; and (b) is competent to give evidence at the examination— to give evidence or to produce documents that are in the person's possession at the examination even if a witness summons requiring the person to attend for that purpose has not been served on the person in accordance with Part 2. (2) A person required to give evidence or to produce documents under subsection (1) is subject to the same penalties and liabilities as if the person had been served with a summons in accordance with Part 2.". 36 Marine Act 1988 36.1 In section 89(2), for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958 or the Evidence Act 2008". 36.2 After section 125(2) insert— "(2A) Nothing in subsection (2) prevents the application of Part 3.10 of the Evidence Act 2008 to an appeal under subsection (1).". 37 Mineral Resources (Sustainable Development) Act 1990 37.1 In the second note at the foot of section 95A(4), after "legal professional privilege" insert "or client legal privilege". Sch. -- 55 of 80 -- Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 49 37.2 In the heading to section 95T, after "privilege" insert "and client legal privilege". 37.3 In sections 95T(a) and 95T(b), after "privilege" insert "or client legal privilege". 38 National Australia Bank and Bank of New Zealand Act 1997 38.1 For section 11(2) substitute— "(2) Without limiting subsection (1), the books of account of BNZ are for the purposes of the Evidence Act 2008 deemed to form part of the records belonging to or kept by National.". 38.2 Section 11(3) is repealed. 39 National Mutual Royal Savings Bank Limited (Merger) Act 1987 39.1 In section 8(2)— (a) for "Division 3A of Part III of the Evidence Act 1958 " substitute "the Evidence Act 2008"; (b) after "day" insert "as if those books of account and entries were business records". 39.2 Section 8(3) is repealed. 40 Occupational Health and Safety Act 2004 40.1 In the second note at the foot of section 100(4), after "legal professional privilege" insert "or client legal privilege". 40.2 In the heading to section 155, after "privilege" insert "and client legal privilege". 40.3 In sections 155(a) and 155(b), after "privilege" insert "or client legal privilege". Sch. -- 56 of 80 -- Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 50 41 Petroleum (Submerged Lands) Act 1982 41.1 In clauses 35(1), 39(4) and 42(4) of Schedule 7, after "privilege" insert "or client legal privilege". 42 Police Integrity Act 2008 42.1 After section 65 insert— "65A Person may be examined without summons (1) The Director may require a person who— (a) is present at an examination; and (b) is competent to give evidence at the examination— to give evidence or to produce documents that are in the person's possession at the examination even if a summons requiring the person to attend for that purpose has not been served on the person in accordance with Division 2. (2) A person required to give evidence or to produce documents under subsection (1) is subject to the same penalties and liabilities as if the person had been served with a summons in accordance with Division 2.". 43 Port Services Act 1995 43.1 In section 113(2)— (a) for "Division 3A of Part III of the Evidence Act 1958 continues to apply" substitute "The Evidence Act 2008 applies"; (b) for "property." substitute "property, as if those books of account and entries were business records.". Sch. -- 57 of 80 -- Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 51 43.2 In section 161(2)— (a) for "Division 3A of Part III of the Evidence Act 1958 continues to apply" substitute "The Evidence Act 2008 applies"; (b) after "date" insert "as if those books of account and entries were business records". 43.3 Sections 113(3) and 161(3) are repealed. 44 Project Development and Construction Management Act 1994 44.1 In section 58(2)— (a) for "Division 3A of Part III of the Evidence Act 1958 continues to apply" substitute "The Evidence Act 2008 applies"; (b) for "property." substitute "property, as if those books of account and entries were business records.". 44.2 In section 74(2)— (a) for "Division 3A of Part III of the Evidence Act 1958 continues to apply" substitute "The Evidence Act 2008 applies"; (b) for "property." substitute "property, as if those books of account and entries were business records.". 44.3 In section 93(2)— (a) for "Division 3A of Part III of the Evidence Act 1958 continues to apply" substitute "The Evidence Act 2008 applies"; (b) for "property." substitute "property, as if those books of account and entries were business records.". 44.4 Sections 58(3), 74(3) and 93(3) are repealed. Sch. -- 58 of 80 -- Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 52 45 Prostitution Control Act 1994 45.1 After section 80(3A) insert— "(3AA) Nothing in subsection (3A) prevents the application of Part 3.10 of the Evidence Act 2008 to an application under subsection (1).". 46 Public Administration Act 2004 46.1 For the heading to section 111 substitute— "Evidence (Miscellaneous Provisions) Act 1958 provisions to apply". 47 Public Health and Wellbeing Act 2008 47.1 After section 208(5) insert— "(6) Nothing in subsection (2)(b) prevents the application of Part 3.10 of the Evidence Act 2008 to an appeal under this section.". 47.2 In the heading to section 213 after "privilege" insert "and client legal privilege". 47.3 In section 213 after "privilege" (wherever occurring) insert "or client legal privilege". 48 Public Records Act 1973 48.1 In section 2(1), in the definition of record, for "Evidence Act 1958" substitute "Evidence Act 2008". 49 Rail Corporations Act 1996 49.1 In section 54(2)— (a) for "Division 3A of Part III of the Evidence Act 1958 continues to apply" substitute "The Evidence Act 2008 applies"; (b) for "(as the case may be)." substitute "(as the case may be), as if those books of account and entries were business records.". Sch. -- 59 of 80 -- Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 53 50 Road Safety Act 1986 50.1 After section 12(2) insert— "(2A) Nothing in subsection (2) prevents the application of Part 3.10 of the Evidence Act 2008 to an appeal under subsection (1).". 50.2 After section 15A(8) insert— "(8A) Nothing in subsection (8) prevents the application of Part 3.10 of the Evidence Act 2008 to an appeal under this section.". 50.3 After section 16E(3) insert— "(3A) Nothing in subsection (3) prevents the application of Part 3.10 of the Evidence Act 2008 to an appeal under subsection (1).". 50.4 After section 26(2) insert— "(2A) Nothing in subsection (2) prevents the application of Part 3.10 of the Evidence Act 2008 to an appeal under subsection (1).". 50.5 After section 26A(2) insert— "(3) Nothing in subsection (2) prevents the application of Part 3.10 of the Evidence Act 2008 to an appeal under subsection (1).". 50.6 After section 33(15) insert— "(15A) Nothing in subsection (15) prevents the application of Part 3.10 of the Evidence Act 2008 to an appeal under subsection (13).". 50.7 After section 50(5) insert— "(5A) Nothing in subsection (5) prevents the application of Part 3.10 of the Evidence Act 2008 to an application under subsection (4).". Sch. -- 60 of 80 -- Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 54 50.8 After section 50AAB(6) insert— "(7) Nothing in subsection (6) prevents the application of Part 3.10 of the Evidence Act 2008 to determining whether to make an order under subsection (6).". 50.9 After section 51(10B) insert— "(10C) Nothing in subsection (10B) prevents the application of Part 3.10 of the Evidence Act 2008 to determining the appeal.". 51 Sentencing Act 1991 51.1 In section 6F(2)— (a) for "Evidence Act 1958" (where first occurring) substitute "Evidence Act 2008"; (b) for "section 87(1) of the Evidence Act 1958" substitute "section 178 of the Evidence Act 2008". 51.2 In section 6J(2)— (a) for "Evidence Act 1958" (where first occurring) substitute "Evidence Act 2008"; (b) for "section 87(1) of the Evidence Act 1958" substitute "section 178 of the Evidence Act 2008". 51.3 After the note at the foot of section 89(3E) insert— "(3F) Nothing in subsection (3E) prevents the application of Part 3.10 of the Evidence Act 2008 to a proceeding under subsection (2).". 51.4 After section 89B(5) insert— "(6) Nothing in subsection (5) prevents the application of Part 3.10 of the Evidence Act 2008 to making a determination under that subsection.". Sch. -- 61 of 80 -- Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 55 51.5 After section 137 insert— "138 Transitional provision—Statute Law Amendment (Evidence Consequential Provisions) Act 2009 Sections 89(3F) and 89B(6) do not apply to a hearing that commenced before the day the Statute Law Amendment (Evidence Consequential Provisions) Act 2009 and that— (a) continued on or after that day; or (b) was adjourned until that day or a day after that day.". 52 Stalking Intervention Orders Act 2008 52.1 After section 14(3) insert— "(3A) Despite anything to the contrary in subsection (3), Part 3.10 of the Evidence Act 2008 applies in respect of an application made by telephone, fax or other electronic communication.". 52.2 After section 20(3) insert— "(4) Despite anything to the contrary in subsection (2)(a), Part 3.10 of the Evidence Act 2008 applies to a hearing referred to in subsection (1).". 52.3 At the end of section 21 insert— "(2) This section applies despite anything to the contrary in the Evidence Act 2008.". Sch. -- 62 of 80 -- Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 56 52.4 After section 62 insert— "62A Transitional provision—Statute Law Amendment (Evidence Consequential Provisions) Act 2009 (1) To avoid doubt, section 14(3A) applies to an application for an interim order made under section 14 on or after the commencement of the Statute Law Amendment (Evidence Consequential Provisions) Act 2009. (2) Sections 20(4) and 21(2) do not apply to a hearing in a proceeding that commenced before the day the Statute Law Amendment (Evidence Consequential Provisions) Act 2009 commenced and that— (a) continued on or after that day; or (b) was adjourned until that day or a day after that day.". 53 State Bank (Succession of Commonwealth Bank) Act 1990 53.1 In section 16(2)— (a) for "Division 3A of Part III of the Evidence Act 1958 continues to apply" substitute "The Evidence Act 2008 applies"; (b) after "day" insert "as if those books of account and entries were business records". 53.2 Section 16(3) is repealed. 54 Survey Co-ordination Act 1958 54.1 After section 21A insert— "21B Certified copies of certain maps and documents to be prima facie evidence (1) All maps, plans, documents or papers certified in accordance with subsection (2) to be copies of original maps, plans, documents Sch. -- 63 of 80 -- Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 57 or papers in custody as provided in subsection (2)— (a) are admissible in evidence in any court or before any person acting judicially; and (b) are prima facie evidence for the same purposes and to the same extent as their originals if they had been produced; and (c) if certified in accordance with subsection (2) to have been made from an actual survey, are presumed prima facie to have been made by a competent surveyor— and all courts and persons acting judicially must take judicial notice of certification as provided in subsection (2). (2) Maps, plans, documents and papers are certified for the purposes of this section if they— (a) were certified before the commencement of the Public Lands and Works Act 1964 under the seal of the Board of Land and Works to be copies of original maps, plans, documents or papers in the custody of the Board of Land and Works; or (b) were certified on or after the commencement of the Public Lands and Works Act 1964 and before 1 September 1983 under the hand of the Minister of Lands to be copies of original maps, plans, documents or papers in the custody of the Department of Crown Lands and Survey; or Sch. -- 64 of 80 -- Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 58 (c) were certified on or after 1 September 1983 and before 2 November 1983 under the hand of the Minister for Conservation, Forests and Lands to be copies of original maps, plans, documents or papers in the custody of the Department of Crown Lands and Survey; or (d) were certified on or after 2 November 1983 and before 21 March 1985 under the hand of the Minister for Conservation, Forests and Lands to be copies of original maps, plans, documents or papers in the custody of the Department of Conservation, Forests and Lands; or (e) were certified on or after 21 March 1985 under the hand of the Minister for the time being administering this Act or by the Surveyor-General to be copies of original maps, plans, documents or papers in the custody of a Department administered by that Minister.". 55 Terrorism (Community Protection) Act 2003 55.1 After section 13F(8) insert— "(8A) Nothing in subsection (8) prevents the application of Part 3.10 of the Evidence Act 2008.". 55.2 In the heading to section 13ZT, after "privilege" insert "and client legal privilege". 55.3 In section 13ZT, after "privilege" insert "or client legal privilege". Sch. -- 65 of 80 -- Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 59 56 The Commercial Bank of Australia Limited (Merger) Act 1982 56.1 In section 10(2)— (a) for "Division 3A of Part III of the Evidence Act 1958 shall continue to apply" substitute "the Evidence Act 2008 apply"; (b) after "day" insert "as if those books of account and entries were business records". 56.2 Section 10(3) is repealed. 57 The Commercial Banking Company of Sydney Limited (Merger) Act 1982 57.1 In section 10(2)— (a) for "Division 3A of Part III of the Evidence Act 1958 shall continue to apply" substitute "the Evidence Act 2008 apply"; (b) after "day" insert "as if those books of account and entries were business records". 57.2 Section 10(3) is repealed. 58 Transfer of Land Act 1958 58.1 In section 4, the definition of reproduction is repealed. 58.2 For section 27D(7) substitute— "(7) This section does not effect or limit any mode of proof of facts or documents permitted by law.". 58.3 Section 114(4) is repealed. Sch. -- 66 of 80 -- Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 60 58.4 After section 128 insert— "128A Transitional Provision—Statute Law Amendment (Evidence Consequential Provisions) Act 2009 Section 27D(7), as in force immediately before its amendment by the Statute Law Amendment (Evidence Consequential Provisions) Act 2009, continues to apply to a hearing that commenced before the day that Act commences and that— (a) continued on or after that day; or (b) was adjourned until that day or a day after that day.". 59 Transport Accident Act 1986 59.1 In the heading to section 126A, after "privilege" insert "and client legal privilege". 59.2 In sections 126A(1) and 126A(2), after "privilege" insert "or client legal privilege". 60 Victims of Crime Assistance Act 1996 60.1 After section 37(1B) insert— "(1C) Section 194 of the Evidence Act 2008 applies to warrants issued under subsection (1A) as if a reference to a civil or criminal proceeding were a reference to a proceeding before the Tribunal.". 60.2 After section 79 insert— "80 Transitional provision—Statute Law Amendment (Evidence Consequential Provisions) Act 2009 Section 37(1C) does not apply to a hearing that commenced before the day the Statute Law Amendment (Evidence Sch. -- 67 of 80 -- Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 61 Consequential Provisions) Act 2009 commenced and that— (a) continued on or after that day; or (b) was adjourned until that day or a day after that day.". 61 Victorian Plantations Corporation Act 1993 61.1 In section 47(2)— (a) for "Division 3A of Part III of the Evidence Act 1958 continues to apply" substitute "The Evidence Act 2008 applies"; (b) for "property." substitute "property, as if those books of account and entries were business records.". 61.2 Section 47(3) is repealed. 62 Water Act 1989 62.1 In section 287T(2)— (a) for "Division 3A of Part III of the Evidence Act 1958 continues to apply" substitute "The Evidence Act 2008 applies"; (b) for "property." substitute "property, as if those books of account and entries were business records.". 62.2 In section 301(6), for "section 63 of the Evidence Act 1958" substitute "section 153 of the Evidence Act 2008". 63 Water Industry Act 1994 63.1 In section 166(2)— (a) for "Division 3A of Part III of the Evidence Act 1958 continues to apply" substitute "The Evidence Act 2008 applies"; Sch. -- 68 of 80 -- Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 62 (b) for "property." substitute "property, as if those books of account and entries were business records.". 63.2 Section 166(3) is repealed. 64 Westpac and Bank of Melbourne (Challenge Bank) Act 1996 64.1 For section 11(2) substitute— "(2) Without limiting subsection (1), the books of account of Challenge are for the purposes of the Evidence Act 2008 deemed to form part of the records belonging to or kept by Westpac.". 64.2 For section 22(2) substitute— "(2) Without limiting subsection (1), the books of account of Challenge in relation to the transferring undertaking are for the purposes of the Evidence Act 2008 deemed to form part of the records belonging to or kept by the Bank of Melbourne.". 64.3 Sections 11(3) and 22(3) are repealed. 65 Whistleblowers Protection Act 2001 65.1 In the heading to section 10, after "privilege" insert "or client legal privilege". 65.2 In section 10(2), after "privilege" insert "or client legal privilege". 66 Wills Act 1997 66.1 At the end of section 22 insert— "(2) Nothing in subsection (1) prevents the application of Part 3.10 of the Evidence Act 2008 to an application under section 21.". Sch. -- 69 of 80 -- Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 63 66.2 After section 27(1) insert— "(1A) Nothing in subsection (1) prevents the application of Part 3.10 of the Evidence Act 2008 to an application under section 21.". 67 Workers Compensation Act 1958 67.1 After section 12(2) insert— "(3) Nothing in subsection (2) prevents the application of Part 3.10 of the Evidence Act 2008 to proceedings referred to in that subsection.". 68 Working with Children Act 2005 68.1 Section 47(3) is repealed. 68.2 After section 51 insert— "52 Transitional provision—Statute Law Amendment (Evidence Consequential Provisions) Act 2009 Section 47(3), as in force immediately before the commencement of the Statute Law Amendment (Evidence Consequential Provisions) Act 2009, continues to apply in respect of a hearing that commenced before the day that Act commences and that— (a) continued on or after that day; or (b) was adjourned until that day or a day after that day.". __________________ Sch. -- 70 of 80 -- Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 64 PART 2—SUBSTITUTION OF REFERENCES TO "EVIDENCE ACT 1958" 1 Accident Compensation Act 1985 1.1 In section 249B(3A), for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". 2 Administration and Probate Act 1958 2.1 In section 75(2), for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". 3 Ambulance Services Act 1986 3.1 In section 13(2), for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". 4 Appeal Costs Act 1998 4.1 In section 27(1), for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". 5 Architects Act 1991 5.1 In section 31, for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". 6 Bail Act 1977 6.1 In section 9(3A), for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". 7 Building Act 1993 7.1 In clause 15(2) of Schedule 3, for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". Sch. -- 71 of 80 -- Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 65 8 Bus Safety Act 2009 8.1 In section 51(2), for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". 9 Charities Act 1978 9.1 In section 10(1), for "Evidence Act 1958" (wherever occurring) substitute "Evidence (Miscellaneous Provisions) Act 1958". 10 Children, Youth and Families Act 2005 10.1 In sections 117, 200(2), 439, 450, 490(1)(a), 530(5), 583(1), 584(1) and 589, for "Evidence Act 1958" (wherever occurring) substitute "Evidence (Miscellaneous Provisions) Act 1958". 11 Constitution Act 1975 11.1 In section 87AAF(1), for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". 11.2 In the note to the Second Schedule, for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". 12 Co-operative Housing Societies Act 1958 12.1 In sections 55(3), 69 and 71B(4), for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". 13 Coroners Act 2008 13.1 In section 63(1), for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". 14 Corrections Act 1986 14.1 In sections 57A(1)(b) and 71, for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". Sch. -- 72 of 80 -- Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 66 15 Country Fire Authority Act 1958 15.1 In section 74N, for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". 16 County Court Act 1958 16.1 In sections 22(2), 78(1)(hf) and 78(1)(hg), for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". 17 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 17.1 In section 36(7), for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". 18 Criminal Procedure Act 2009 18.1 In section 3 in the definition of attend, and in sections 130(8), 133(3)(g), 198(5), 232(3) and 331(6)(b), for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". 18.2 In the note at the foot of section 198(5), the second note at the foot of section 329 and the note at the foot of section 359(2), for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". 19 Disability Act 2006 19.1 In sections 122, 123(2) and 127, for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". 20 Education and Training Reform Act 2006 20.1 In sections 2.2.2(1)(b), 2.3.31 and 5.8.9, for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". Sch. -- 73 of 80 -- Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 67 21 Firearms Act 1996 21.1 In section 166(2), for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". 22 Fisheries Act 1995 22.1 In section 44(4)(b), for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". 23 Gambling Regulation Act 2003 23.1 In section 10.1.20(2), for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". 24 Health Professions Registration Act 2005 24.1 In sections 4(3)(b) and 29(3)(b), for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". 25 Health Services Act 1988 25.1 In section 144(2)(a), for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". 26 Health Services (Conciliation and Review) Act 1987 26.1 In sections 25, 26(2) and 31(1), for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". 27 Infertility Treatment Act 1995 27.1 In section 150, for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". 28 Instruments Act 1958 28.1 In sections 68 and 82, for "Evidence Act 1958" (wherever occurring) substitute "Evidence (Miscellaneous Provisions) Act 1958". Sch. -- 74 of 80 -- Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 68 29 Interpretation of Legislation Act 1984 29.1 In section 38, in the definition of statutory declaration and solemn declaration, and in section 54(3), for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". 30 Juries Act 2000 30.1 In section 62, for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". 31 Local Government Act 1989 31.1 In sections 9(3), 63(1), 214(1), 214(2) and in the note at the foot of section 63(2), for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". 32 Magistrates' Court Act 1989 32.1 In sections 16(1A)(p), 16(1A)(q), 16(1A)(r) and 82(2), for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". 33 Major Transport Projects Facilitation Act 2009 33.1 In section 263(3), for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". 34 Marine Act 1988 34.1 In section 84(3), for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". 35 Metropolitan Fire Brigades Act 1958 35.1 In section 79M, for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". Sch. -- 75 of 80 -- Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 69 36 Mineral Resources (Sustainable Development) Act 1990 36.1 In section 99(2), for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". 37 Ombudsman Act 1973 37.1 In sections 18(1) and 20, for "Evidence Act 1958" (wherever occurring) substitute "Evidence (Miscellaneous Provisions) Act 1958". 38 Police Regulation Act 1958 38.1 In sections 75(4) and 84(4), for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". 39 Public Administration Act 2004 39.1 In sections 53(2), 57(2) and 111, for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". 40 Public Health and Wellbeing Act 2008 40.1 In section 51(2), for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". 41 Public Transport Competition Act 1995 41.1 In section 21(2), for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". 42 Rail Safety Act 2006 42.1 In section 60(2), for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". Sch. -- 76 of 80 -- Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 70 43 Religious and Successory Trusts Act 1958 43.1 In section 39(1), for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". 44 Retail Leases Act 2003 44.1 In section 89(4), for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". 45 Securities Industry Act 1975 45.1 In section 21(9), for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". 46 Securities Industry (Application of Laws) Act 1981 46.1 In clause 12 of Schedule 1, for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". 47 State Electricity Commission Act 1958 47.1 In clause 9 of the Sixth Schedule, under the heading Legal Proceedings, Evidence, for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". 48 Supreme Court Act 1986 48.1 In sections 25(1)(eb) and 25(1)(ec), for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". 49 Surveillance Devices Act 1999 49.1 In section 30I(7), for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". Sch. -- 77 of 80 -- Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 71 50 Surveying Act 2004 50.1 In sections 4(3)(b) and 29, for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". 51 Telecommunications (Interception) (State Provisions) Act 1988 51.1 In section 22(b)(ii), for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". 52 Terrorism (Community Protection) Act 2003 52.1 In sections 21J(1) and 23(1) and the note at the foot of section 23(1), for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". 53 Transport Act 1983 53.1 In section 228O(2), for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". 54 Veterinary Practice Act 1997 54.1 In sections 4(3)(b), 8(4)(b) and 48, for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". 55 Victims of Crime Assistance Act 1996 55.1 In sections 37(1), 63(3), 65(1) and 65(2), for "Evidence Act 1958" (wherever occurring) substitute "Evidence (Miscellaneous Provisions) Act 1958". 56 Victoria Grants Commission Act 1976 56.1 In section 18, for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". Sch. -- 78 of 80 -- Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 72 57 Victorian Civil and Administrative Tribunal Act 1998 57.1 In the heading to section 78A, for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". 57.2 In section 78A, for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". 58 Whistleblowers Protection Act 2001 58.1 In sections 22(1)(d), 54(2), 61BA(1)(a), 61BAB(1), 61G(1), 61H(1), 61I, 61K(1), 61L(1)(a), 105B, 105D(1)(a), 105E(1) and 108(2)(a), for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". 58.2 In sections 61B(1), 61B(1A), 61B(5), and 61B(7)(d), for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". 58.3 In the note at the foot of section 61B(1), for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". 59 Wrongs Act 1958 59.1 In section 14I, in paragraph (c) of the definition of civil proceeding, for "Evidence Act 1958" substitute "Evidence (Miscellaneous Provisions) Act 1958". ═══════════════ Sch. -- 79 of 80 -- Statute Law Amendment (Evidence Consequential Provisions) Act 2009 No. 69 of 2009 73 ENDNOTES † Minister's second reading speech— Legislative Assembly: 17 September 2009 Legislative Council: 15 October 2009 The long title for the Bill for this Act was "A Bill for an Act to revise the statute law of Victoria as a consequence of the enactment of the Evidence Act 2008 and to make other amendments to that Act and for other purposes." Constitution Act 1975: Special majorities: Legislative Assembly: 15 October 2009 Legislative Council: 12 November 2009 Endnotes -- 80 of 80 --