Bills Digest no. 77 2008–09
Foreign Evidence Amendment Bill 2008
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Date introduced: 3 December 2008
House: House of Representatives
Commencement: The day after Royal
relevant links to the Bill, Explanatory Memorandum and second
reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
To amend Part 3 of the
Foreign Evidence Act 1994 (hereafter “the
Act”), so as to enhance the process for adducing foreign
business records as proof in Commonwealth criminal proceedings,
related civil proceedings, and all proceedings under the
Proceeds of Crime Act 2002 and the Proceeds of Crime
The realities of commerce in a globalised world, combined with
greater access to information relating to international business
dealings, has meant an increase in the number of mutual assistance
requests seeking business records from foreign countries in an
effort to combat white collar crime such as fraud and money
Making effective use of evidence obtained from foreign countries
relies on inter alia, maintaining appropriate legislation
to effectively deal with such evidence.
The Explanatory Memorandum states that there is no financial
A summary of the Bill’s provisions is as follows:
- Foreign business records will be presumed to be admissible as
evidence unless a court is satisfied that the records are not
reliable or probative or that they are privileged.
- Testimony provisions will operate more flexibly to allow for
evidence to be received where an individual is under a legal
obligation to tell the truth, even though no formal oath or
admonition has occurred – unless of course, there is
sufficient evidence to raise doubt as to the contrary.
- Courts will be given greater discretion to limit the use of
foreign material where there is a danger that it may be unfairly
prejudicial to a party to the proceedings.
- There are also miscellaneous amendments - inserting and
updating definitions, as well as clarification about the operation
of the Act in relation to non-conviction based proceeds of crime
Foreign Evidence Act 1994
Item 1 proposes a definition of
‘business’ in subsection 3(1) with the
same meaning as the definition of ‘business’ in clause
1 Part 2 of the Dictionary in the Evidence Act 1995 (Cth).
It covers a profession or calling, an occupation or trade or
undertaking and a range of other activities, including the
proceedings of an Australian Parliament, a House of an Australian
Parliament, a committee of such a House or a committee of an
Item 2 proposes a definition of
‘business record’ in subsection 3(1)
to mean a document that:
- is or forms part of the records belonging to or kept
by a person, body or organisation in the course of, or for the
purposes of, a business; or
- at any time was or formed part of such a record.
Item 3 inserts a definition of
‘proceeds of crime law’ to refer to
Proceeds of Crime Act 2002 or the Proceeds of Crime
Act 1987, which is necessary for the amendment proposed by
item 5 to current subsection 20(1) of the
Act. Basically, the amendment made by item 5
clarifies that Part 3 of the Act applies to
all non-conviction based proceeds of crime proceedings.
Current subsection 20(2) provides that Part 3 of the Act applies
to applies to a proceeding, in any court of a State or Territory
specified in the regulations, that is:
- a criminal proceeding for an offence against the law
of that State or Territory; or
- a related civil proceeding of a kind specified in the
regulations in respect of where the State or Territory is specified
in regulations and the proceeding type is similarly specified.
Proposed paragraph 20(2)(c) provides that Part
3 of the Act would also apply to State or Territory proceedings
that are proceedings ‘under a law that is corresponding law
within the meaning of a proceeds of crime law’. Hence it
would operate with current paragraph 20(2)(b) to
capture non-conviction based proceeds of crime proceedings.
Current section 22 deals with the requirements for testimony for
the purposes of Part 3 of the Act. Proposed paragraph
22(1)(aa) allows for evidence to be received where an
individual is under a legal obligation to tell the truth, even
though no formal oath or admonition has occurred. It will be
assumed that the requirements for testimony under Part
3 of the Act have been met unless there is sufficient
evidence to raise doubt as to the contrary (proposed
subsection 22(3)). Thus, where a foreign country has
procedures for receiving testimony which may not conform with
Australian formalities, but nonetheless place the individual under
an obligation to tell the truth, then it is recognised that it may
be appropriate to receive such evidence.
Current section 24 provides the requirements for foreign
material to be adduced as evidence.
Proposed subsection 24(2) provides that foreign
material is not to be adduced as evidence if it appears to the
court that the person who gave the testimony concerned is in
Australia and is able to attend the hearing.
Proposed subsection 24(3)
deals with the situation where the foreign material does not appear
to consist of a business record. In that case, the foreign material
is not to be adduced as evidence if the evidence would not have
been admissible had it been adduced from the person providing the
testimony concerned at the hearing.
Proposed subsection 24(4) provides that where
foreign material appears to consist of a business record, that
business record will not be admissible as evidence if a court is
satisfied that the record is not reliable or probative or that it
is privileged from production in the proceedings.
Consistent with a similar discretion in the Evidence Act
1995 (Cth) proposed section 24A provides the
court with the discretion to limit the use of foreign material
where there is a danger that it may be unfairly prejudicial to a
party to the proceedings.
Current subsection 26(1) of the Act provides that:
the Attorney-General or an authorised officer
may, by signed writing, certify that specified foreign material was
obtained as a result of a request made to a foreign country by or
on behalf of the Attorney-General.
The Explanatory Memorandum
identifies a concern that the reference to ‘foreign
material’ could be interpreted as the Attorney-General
certifying that the ‘foreign material’ is
‘testimony’ (as defined in the Act). Because this
determination is a matter for the court, proposed
subsection 26(1) removes the reference to ‘specified
foreign material’ and replaces it with ‘specified
documents or things were’. This clarifies that the
Attorney-General only needs to be satisfied that the specified
material was obtained as a result of a request made to a foreign
country, not that it satisfied the definition of foreign material
by qualifying as testimony.
Part 3 of the Act relates to the
use of foreign material in criminal and related civil
Members, Senators and Parliamentary staff can obtain further
information from the Parliamentary Library on (02) 6277 2404.
21 January 2009
Bills Digest Service
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