Transitional provisions for introduction of Evidence Act, 2008 (Vic.)

Update, 4 March 2010: The changes to legal professional privilege apply retrospectively to communications which pre-date the commencement at the beginning of this year of the Evidence Act, 2008.  See this post.
Update, 15 February 2010: ‘Quis Custodiet Ipsos Custodes’ has published a useful (but not exhaustive) summary of the provisions here.

Original post: Before you start worrying about my sanity, note that I did not write this on New Year’s Day; I just set it to publish on that day. No doubt you’re wondering about the transitional provisions for the Evidence Act, 2008 (Vic.) which came into operation on 1 January 2010, being the ‘commencement day’.  They were inserted into the Act (no. 47 of 2008) by an amending Act which came into operation before or at the same time as the principal Act, namely the Statute Law Amendment (Evidence Consequential Provisions) Act, 2009 (Vic.) (no. 69 of 2009).  The thrust of them is that the new Act applies to hearings which commence in 2010, but there is lots of detail.  They follow below, but you should also be aware that the Evidence Act, 2008 was amended before it came into operation, but the consolidated version is still not yet available on Austlii:
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.

(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.

(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.

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 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.

(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 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 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.’

See also:

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