Dictionary Part 2 - Other Definitions

Dictionary Part 2 - Other Definitions

1 References to businesses

(1) A reference in this Act to a business includes a reference to the following—

(a) a profession, calling, occupation, trade or undertaking;

(b) an activity engaged in or carried on by the Crown in any of its capacities;

(c) an activity engaged in or carried on by the government of a foreign country;

(d) an activity engaged in or carried on by a person or body holding office or exercising power under or because of the Commonwealth Constitution, an Australian law or a law of a foreign country, being an activity engaged in or carried on in the performance of the functions of the office or in the exercise of the power (otherwise than in a private capacity);

(e) the proceedings of an Australian Parliament, a House of an Australian Parliament, a committee of such a House or a committee of an Australian Parliament;

(f) the proceedings of a legislature of a foreign country, including a House or committee (however described) of such a legislature.

(2) A reference in this Act to a business also includes a reference to—

(a) a business that is not engaged in or carried on for profit; or

(b) a business engaged in or carried on outside Australia.

2 References to examination in chief, cross-examination and re-examination

(1) A reference in this Act to examination in chief of a witness is a reference to the questioning of a witness by the party who called the witness to give evidence, not being questioning that is re examination.

(2) A reference in this Act to cross-examination of a witness is a reference to the questioning of a witness by a party other than the party who called the witness to give evidence.

(3) A reference in this Act to re-examination of a witness is a reference to the questioning of a witness by the party who called the witness to give evidence, being questioning (other than further examination in chief with the leave of the court) conducted after the cross-examination of the witness by another party.

(4) If a party has recalled a witness who has already given evidence, a reference in this Act to re-examination of a witness does not include a reference to the questioning of the witness by that party before the witness is questioned by another party.

3 References to civil penalties

For the purposes of this Act, a person is taken to be liable to a civil penalty if, in an Australian or overseas proceeding (other than a criminal proceeding), the person would be liable to a penalty arising under an Australian law or a law of a foreign country.

4 Unavailability of persons

(1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if—

(a) the person is dead; or

(b) the person is, for any reason other than the application of section 16 (Competence and compellability—judges and jurors), not competent to give the evidence about the fact; or

(c) it would be unlawful for the person to give evidence about the fact; or

(d) a provision of this Act prohibits the evidence being given; or

(e) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or to secure his or her attendance, but without success; or

(f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.

(g) the person is mentally or physically unable to give evidence and it is not reasonably practicable to overcome that inability.

(2) In all other cases the person is taken to be available to give evidence about the fact.

5 Unavailability of documents and things

For the purposes of this Act, a document or thing is taken not to be available to a party if and only if—

(a) it cannot be found after reasonable inquiry and search by the party; or

(b) it was destroyed by the party, or by a person on behalf of the party, otherwise than in bad faith, or was destroyed by another person; or

(c) it would be impractical to produce the document or thing during the course of the proceeding; or

(d) production of the document or thing during the course of the proceeding could render a person liable to conviction for an offence; or

(e) it is not in the possession or under the control of the party and—

(i) it cannot be obtained by any judicial procedure of the court; or

(ii) it is in the possession or under the control of another party to the proceeding concerned who knows or might reasonably be expected to know that evidence of the contents of the document, or evidence of the thing, is likely to be relevant in the proceeding; or

(iii) it was in the possession or under the control of such a party at a time when that party knew or might reasonably be expected to have known that such evidence was likely to be relevant in the proceeding.

6 Representations in documents

For the purposes of this Act, a representation contained in a document is taken to have been made by a person if—

(a) the document was written, made or otherwise produced by the person; or

(b) the representation was recognised by the person as his or her representation by signing, initialling or otherwise marking the document.

7 Witnesses

(1) A reference in this Act to a witness includes a reference to a party giving evidence.

(2) A reference in this Act to a witness who has been called by a party to give evidence includes a reference to the party giving evidence.

(3) A reference in this clause to a party includes a defendant in a criminal proceeding.

8 References to documents

A reference in this Act to a document includes a reference to—

(a) any part of the document; or

(b) any copy, reproduction or duplicate of the document or of any part of the document; or

(c) any part of such a copy, reproduction or duplicate.

8A References to offices etc.

In this Act—

(a) a reference to a person appointed or holding office under or because of an Australian law or a law of the Commonwealth includes a reference to an APS employee within the meaning of the Public Service Act 1999 of the Commonwealth; and

(b) in that context, a reference to an office is a reference to a position occupied by the APS employee concerned, and a reference to an officer includes a reference to a Secretary, or APS employee, within the meaning of the Act.

9 References to laws

(1) A reference in this Act to a law of the Commonwealth, a State, a Territory or a foreign country is a reference to a law (whether written or unwritten) of or in force in that place.

(2) A reference in this Act to an Australian law is a reference to an Australian law (whether written or unwritten) of or in force in Australia.

10 References to children and parents

(1) A reference in this Act to a child of a person includes a reference to—

(a) an adopted child or ex-nuptial child of the person; or

(b) a child living with the person as if the child were a member of the person's family.

(2) A reference in this Act to a parent of a person includes a reference to—

(a) an adoptive parent of the person; or

(b) if the person is an ex-nuptial child—the person's natural father; or

(c) the person with whom a child is living as if the child were a member of the person's family.

11 References to de facto partners

(1) A reference in this Act to a de facto partner of a person is a reference to a person who is in a de facto relationship with the person.

(2) A person is in a de facto relationship with another person if the two persons have a relationship as a couple and are not legally married.

(3) In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as are relevant in the circumstances of the particular case—

(a) the duration of the relationship;

(b) the nature and extent of their common residence;

(c) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

(d) the ownership, use and acquisition of their property;

(e) the degree of mutual commitment to a shared life;

(f) the care and support of children;

(g) the reputation and public aspects of the relationship.

(4) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether two persons have a relationship as a couple.

(5) For the purposes of subclause (3), the following matters are irrelevant—

(a) whether the persons are different sexes or the same sex;

(b) whether either of the persons is legally married to someone else or in another de facto relationship.

(6) Despite subclauses (3) and (4), a person is in a de facto relationship with another person if those two persons are in a registered relationship within the meaning of the Relationships Act 2008.

Note

The Commonwealth Act and New South Wales Act do not include subclause (6).