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Thursday, 5 October 1911


Senator KEATING (Tasmania) . -It appears to me that this clause very properly and wisely makes it clear that we do not attempt in any way to provide that statutory declarations made under it are to be used in judicial proceedings. As a matter of fact, each State Supreme Court reserves for itself largely the matter of determination of its own procedure, and of what -shall and shall not be considered evidence. For very obvious reasons affidavits and declarations are not used as evidence in such proceedings, except where inevitable, or where it is abundantly certain that their use will not lead to injustice. The principle upon which that practice is based is that when evidence is tendered by affidavit or declaration the party so tendering the evidence does not subject himself to cross-examination. " But in many proceedingsbefore Judges in Chambers, in ex forte proceedings, and in originating proceedings, for example - evidence is very often tendered by way of affidavit, and it is not necessary for the party to attend and give evidence viva voce. That evidence so given may be answeed by another affidavit. We do not attempt by this Bill to provide that any declaration shall, or must, be receivable in evidence. But we do provide that nothing' in the Bill is to prevent any statutory declaration being so used. In other words,, we do not profess to say that declarations, made under this measure, shall be used in. any Court of law of a State, but, at the same time, we do not prevent the Judges of the State. Courts receiving such affidavits in evidence. We leave that entirely to them and the State Legislatures. We do not attempt to alter the procedure of the State Courts. That, I take it, is the meaning of the clause. But I am not quite clear as to whether the Commonwealth Parliament has sufficiently defined in the Acts Interpretation Act as amended, or in any other Act,' the signification of the words, " Act, Ordinance, or statutory regulation " when used in a general Act. The words, as they stand at present, are quite comprehensive enough to embrace State Acts, but it cannot be intended that they should. I do not think that they should. We have not power to provide for the way in which evidence shall be received under State Acts. But there is nothing on the face of this measure to restrict its operation. There may be some provision in the Acts Interpretation Act to the effect that the use of these words is confined to Commonwealth Statutes. But we should make it abundantly clear that we are not professing to attempt to make statutory declarations under this measure valid or appropriate under State Acts. We are only, proposing to legislate with regard to Acts, Ordinances, and statutory declarations in conformity with Commonwealth Statutes.







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