Uniform Evidence Acts and other legislation

20.6 Section 8 of the Evidence Act 1995 (Cth) deals with the operation of other Acts. Section 8(1) states:

This Act does not affect the operation of the provisions of any other Act, other than sections 68, 79, 80 and 80A of the Judiciary Act 1903.

20.7 It has been held that, where a court is not required to observe the rules of evidence, s 8(1)[4] is intended to have the effect that the Evidence Act 1995 (Cth) does not operate so as to impose that obligation.[5]

20.8 The effect of the reference to the Judiciary Act 1903 (Cth) is said to be that those provisions which had allowed courts exercising federal jurisdiction to apply the local rules of evidence are significantly modified in their operation by the Evidence Act 1995 (Cth). The practical result is that:

  • federal courts and Australian Capital Territory (ACT) courts apply only the rules of admissibility and rules relating to the competence and compellability of witnesses contained in the Evidence Act 1995 (Cth) to the exclusion of state and territory law that is inconsistent with the Act; and

  • state and other territory courts apply only those parts of the Evidence Act 1995 (Cth) which are specifically provided to apply to all Australian courts.[6]

20.9 The Evidence Act 1995 (NSW) provides simply: ‘This Act does not affect the operation of the provisions of any other Act’.[7] This means, for example, that evidentiary provisions contained in the Criminal Procedure Act 1986 (NSW) are not affected by the New South Wales Act.

20.10 The Evidence Act 1995 (Cth) applies in the courts of the ACT. While the ACT Legislative Assembly may enact evidence legislation, any such legislation will not apply if it is inconsistent with the Commonwealth Act.[8] Therefore, the ACT effectively may not enact new laws which would make inadmissible evidence that is admissible under the Evidence Act 1995 (Cth), as this would be inconsistent with s 56 of the Act. In consultations, concern was expressed that a range of ACT evidentiary provisions may be challengeable on this basis.[9] These include evidentiary provisions in relation to sexual offences and child witnesses.

[4] When considered together with s 9(1) which provides: ‘For the avoidance of doubt, this Act does not affect an Australian law so far as the law relates to a court’s power to dispense with the operation of a rule of evidence or procedure in an interlocutory proceeding’.

[5]Epeabaka v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 397, 409.

[6] See also Ch 2; S Odgers, Uniform Evidence Law (6th ed, 2004), [1.1.900].

[7]Evidence Act 1995 (NSW) s 8.

[8]Evidence Act 1995 (Cth) s 8.

[9] Judicial Officers of the Supreme Court of the ACT, Consultation, Canberra, 8 March 2005; ACT Bar Association, Consultation, Canberra, 9 March 2005.