New South Wales Consolidated Acts

[Index] [Table] [Search] [Search this Act] [Notes] [Noteup] [Previous] [Next] [Download] [History] [Help]

EVIDENCE ACT 1995 - SCHEDULE 2

SCHEDULE 2 – Savings, transitional and other provisions

(Section 198)

Part 1 - Preliminary

Note : The Commonwealth Act does not include an equivalent provision to Schedule 2. There are provisions to the same effect as Part 2 of Schedule 2 in the Evidence (Transitional Provisions and Consequential Amendments) Act 1995 of the Commonwealth.

1 Regulations

(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act or any Act that amends this Act.
(2) Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.
(3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
(4) Regulations made as referred to in subclause (1) may have effect despite the terms of any savings or transitional provision contained in this Schedule, if the regulations so provide.

Part 2 - Provisions consequent on the enactment of this Act

1A Transferred provisions

(1) This clause is taken to have commenced on 1 September 1995 (the date of commencement of this Act other than Part 1.1 and the Dictionary).
(2) This Part is a transferred provision to which section 30A of the Interpretation Act 1987 applies.

2 Proceedings

(1) A provision of the Evidence Act 1995 or Evidence on Commission Act 1995 does not apply in relation to a proceeding the hearing of which began before the commencement of the provision, except as provided by this Schedule.
(2) A provision of the Evidence Act 1898 or the Evidence (Reproductions) Act 1967 that is repealed by this Act continues to apply in relation to proceedings the hearing of which began before the repeal.

3 Prior operation of notification provisions

(1) If, before the commencement of a notification provision, a document of a kind referred to in that 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 after its commencement,
the document is taken to have been given or served under that provision.
(2) The following provisions of the Evidence Act 1995 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 168 (1),
(h) section 168 (3),
(i) section 168 (5),
(j) section 168 (6),
(k) section 173 (1),
(l) section 177 (2),
(m) section 177 (5).
(3) If a notice given before the commencement of section 67 (1) of the Evidence Act 1995 is taken because of this clause to have been given under that subsection, the period for an objection to be made under section 68 of that Act to the tender of evidence to which the notice relates is the period ending:
(a) 7 days after the commencement of section 68 of that Act, or
(b) 21 days after the notice was given to the party concerned,
whichever is the later.
(4) If a notice given before the commencement of section 168 (1) or (3) of the Evidence Act 1995 is taken because of this clause to have been given under one of those subsections, the period for a request to be made under that subsection in connection with the notice is the period ending:
(a) 7 days after the commencement of section 168 of that Act, or
(b) 21 days after the notice was given to the party concerned,
whichever is the later.
(5) If a copy of a document served before the commencement of section 168 (5) or (6) of the Evidence Act 1995 is taken because of this clause to have been served under one of those subsections, the period for a request to be made under that subsection in connection with the document is the period ending:
(a) 7 days after the commencement of section 168 of that Act, or
(b) 21 days after the document was served on the party concerned,
whichever is the later.

4 Proof of voluminous or complex documents

A person is taken, for the purposes of section 50 (2) (b) of the Evidence Act 1995 , to have been given a reasonable opportunity to examine or copy documents if such an opportunity was given to the person before the commencement of section 50 of that Act.

5 Notices for the purposes of sections 97 and 98 of the Evidence Act 1995

References in sections 97 (1) (a) and 98 (1) (a) of the Evidence Act 1995 to giving notice are taken to include references to giving notice of the kind referred to in those paragraphs before the commencement of section 97 and section 98 of that Act, respectively.

6 Requests under section 167 of the Evidence Act 1995

The reference in section 167 of the Evidence Act 1995 to making a request is taken to include a reference to making a request of the kind referred to in that section before the commencement of that section.

7 Requests under section 173 of the Evidence Act 1995

The reference in section 173 (2) of the Evidence Act 1995 to a request is taken to include a reference to a request of the kind referred to in that subsection made before the commencement of section 173 of that Act.

8 Agreements under section 191 of the Evidence Act 1995

The reference in section 191 (3) (a) of the Evidence Act 1995 to an agreement is taken to include a reference to an agreement of the kind referred to in that paragraph entered into before the commencement of section 191 of that Act.

9 Identifications already carried out

(1) Section 114 of the Evidence Act 1995 does not apply in relation to an identification made before the commencement of that section.
(2) Section 115 of the Evidence Act 1995 does not apply in relation to an identification made before the commencement of that section.

10 Cautioning of persons

Section 139 of the Evidence Act 1995 does not apply in relation to a statement made or an act done before the commencement of that section.

11 Amendments made by this Act

(1) An amended provision does not apply in relation to proceedings the hearing of which began before the commencement of the amendment.
(2) An amended provision continues to apply in relation to proceedings the hearing of which began before that commencement as if the amendment had not been made.
(3) In this section:

"amended provision" means a provision of another Act that is amended by Schedule 1 to this Act, and is taken to include a provision of another Act that is repealed or omitted by that Schedule.

"amendment" of provision, includes repeal or omission of the provision.

12 Admissibility of evidence or statements as to access by husband or wife

To remove doubt, it is declared that the common law rule relating to evidence by spouses as to access and marital intercourse abolished by section 14D of the Evidence Act 1898 is not revived by the repeal of that section by this Act.

13 Imperial Acts

An Imperial Act or a provision of such an Act that was repealed by the Evidence Act 1898 is not revived merely because the Evidence Act 1898 is repealed by this Act.

14 Construction of references to old Acts

(1) In this clause:

"old Act" means:
(a) the Evidence Act 1898 , or
(b) the Evidence (Reproductions) Act 1967 .
(2) A reference in any Act or instrument to an old Act (or a provision of an old Act) is to be read as a reference to the Evidence Act 1995 or the Evidence on Commission Act 1995 (or the provision of those Acts) that, having regard to the reference and the context in which the reference occurs, most nearly corresponds to the old Act (or the provision of the old Act).

15 Saving of rules

Any rules made under Part 7 or 8 of the Evidence Act 1898 and in force immediately before the repeal of that Act by this Act are taken to be rules made under the Evidence on Commission Act 1995 and may be amended and repealed accordingly.

Part 3 - Provisions consequent on the enactment of the Evidence Amendment Act 2007

16 Definition

In this Part:

"the amending Act" means the Evidence Amendment Act 2007 .

17 Proceedings already begun

(1) Subject to this Part, an amendment made to this Act by the amending Act does not apply in relation to proceedings the hearing of which began before the commencement of the amendment.
(2) This Act, as in force immediately before the commencement of the amendment, continues to apply in relation to proceedings the hearing of which began before that commencement.

18 Admissions

(1) The amendment made by the amending Act to section 85 does not apply in relation to admissions made before the commencement of the amendment.
(2) That section, as in force immediately before the commencement of the amendment, continues to apply in relation to admissions made before that commencement.

19 Failure or refusal to answer questions etc

(1) The amendment made by the amending Act to section 89 does not apply in relation to any failure or refusal, before the commencement of the amendment:
(a) to answer one or more questions, or
(b) to respond to a representation.
(2) That section, as in force immediately before the commencement of the amendment, continues to apply in relation to any such refusal or failure before that commencement.

20 Prior operation of notice provisions

If, before the commencement of an amendment made to section 97 or 98 by the amending Act, a notice of the kind referred to in section 97 or 98 is given:

(a) in the circumstances provided for in the section concerned, and
(b) in accordance with such requirements (if any) as would apply to the giving of the notice under that section after that commencement,
the notice is taken to have been given under that section as in force after that commencement.

21 Disclosure orders

Section 128A, as inserted by the amending Act, does not apply in relation to any order made before the commencement of that section.

22 Disclosure requirements

Section 131A, as inserted by the amending Act, does not apply in relation to any disclosure requirement made before the commencement of that section.

Part 4 - Provisions consequent on the enactment of the Evidence Amendment (Evidence of Silence) Act 2013

23 Definition

In this Part:

"amending Act" means the Evidence Amendment (Evidence of Silence) Act 2013 .

24 Evidence of silence in criminal proceedings for serious indictable offences

(1) Section 89A, as inserted by the amending Act, does not apply in relation to a proceeding the hearing of which began before the insertion of that section.
(2) Section 89A, as inserted by the amending Act, does not apply in relation to any failure or refusal to mention a fact before the insertion of that section.
(3) Section 89A, as inserted by the amending Act, extends to evidence of anything done or omitted to be done in connection with the investigation of offences committed before the insertion of that section.

25 Review of policy objectives of amending Act

(1) The Minister is to review section 89A to determine whether the policy objectives of the amending Act remain valid and whether the terms of section 89A remain appropriate for securing those objectives.
(2) The review is to be undertaken as soon as possible after the period of 5 years from the commencement of this clause.
(3) A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 5 years.

Part 5 - Provisions consequent on the enactment of the Miscellaneous Acts Amendment (Marriages) Act 2018

26 Application of amendment to section 73--exception to the hearsay rule for evidence concerning relationship

The amendment to section 73 made by the Miscellaneous Acts Amendment (Marriages) Act 2018 applies in relation to evidence adduced on or after the commencement of this Part, whether the proceedings are commenced before, on or after that commencement.



AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback