Commonwealth Numbered Regulations - Explanatory Statements

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FOREIGN EVIDENCE (APPLICATION OF AMENDMENTS) REGULATIONS 2011 (SLI NO 168 OF 2011)

EXPLANATORY STATEMENT

Select Legislative Instrument 2011 No. 168

Issued by the authority of the Attorney-General

Foreign Evidence Amendment Act 2010

Foreign Evidence (Application of Amendments) Regulations 2011

Subitem 19(3) of Schedule 1 of the Foreign Evidence Amendment Act 2010 (the Amendment Act) provides that the Governor-General may make regulations to provide that the amendments made by Schedule 1 of the Amendment Act to Part 3 of the Foreign Evidence Act 1994 (the Act) apply to a proceeding in a court of a particular State or Territory.

The Act enables evidence collected in overseas countries to be used in proceedings in an Australian court.  It also provides for the collection of evidence in Australia for use in an overseas court.  Part 3 of the Act provides a means of adducing foreign material, obtained in response to a request by the Attorney-General to a foreign country, as evidence in proceedings in Australian courts.  This includes material obtained in response of a request made by the Attorney-General, by virtue of the executive power, to seek assistance that is not governed by the Mutual Assistance in Criminal Matters Act 1987

The Regulations apply certain changes made by the Amendment Act to State and Territories who have agreed to the application of these changes to proceedings in their jurisdiction. 

Subsection 20(2) of the Act provides that Part 3 of the Act may apply to criminal proceedings, related civil proceedings, and proceeds of crime proceedings that take place under the jurisdiction of a court in any State or Territory specified in regulations.

The Amendment Act amended Part 3 of the Act to address issues around the admissibility of foreign evidence in Australian proceedings.  Currently, amended Part 3 of the Act operates in relation to all criminal, and related civil, proceedings in Commonwealth courts.  However, unamended Part 3, by way of a savings provision, still applies to proceedings in State and Territory courts.  Amended Part 3 of the Act can be extended to State and Territory proceedings through Commonwealth regulations with the consent of the relevant State or Territory.

The Regulations give effect to amended Part 3 of the Foreign Evidence Act in relation to criminal proceedings, civil proceedings, and proceedings related to proceeds of crime actions in Western Australia, South Australia, Tasmania and the Northern Territory.  These States and Territories have agreed to the amendments.  The Regulations do not apply to the other States and Territories as they are yet to finalise their positions in relation to the amendments.  

The Regulations commenced on the day after they were registered on the Federal Register of Legislative Instruments.

State and Territory Governments were consulted in the drafting of this legislative instrument.  The legislative instrument does not have a direct, or substantial indirect, effect on business and does not restrict competition. 

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.


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