The sources of the laws of evidence in Australia are statutes, common law and the rules of civil and criminal procedure. Those laws vary significantly between the different Australian State, Territory and Commonwealth jurisdictions. Since the enactment of the Evidence Act 1995 (Cth), a majority of Australian jurisdictions, namely New South Wales, Victoria, Tasmania, the Australian Capital Territory and the Northern Territory, have adopted uniform evidence legislation.
On 21 October 2015, the Council of Chief Justices of Australia and New Zealand (Council) adopted, on the recommendation of the Harmonisation of Rules Committee, a Harmonised Expert Witness Code of Conduct (Harmonised Code of Conduct) for expert witnesses. The Harmonised Code of Conduct applies to experts giving opinion evidence, or providing an expert’s report for use as evidence in proceedings or proposed court proceedings. The Harmonised Code of Conduct addresses the following areas:
- Application of code
- General duties to the court
- Context of expert report
- Supplementary report following change of opinion
- Duty to comply with the court’s directions
- Conference of experts
The Harmonised Code of Conduct has been implemented in the following jurisdictions:
Federal Court of Australia | The Harmonised Code of Conduct is contained in Annexure A of the Federal Court’s Expert Evidence Practice Note (GPN-EXPT).
Rule 23.12 of the Federal Court Rules 2011 (Cth) provides that a party intending to retain an expert to give an expert report or expert evidence, must first give the expert any practice note dealing with guidelines for expert witnesses in proceedings in the Court.
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Australian Capital Territory | The Harmonised Code of Conduct is contained in Schedule 1 to the Court Procedure Rules 2006 (ACT).
Rule 1203 of the Court Procedure Rules 2006 (ACT) provides that any party that engages an expert witness must give the expert witness a copy of the Harmonised Code of Conduct as soon as practicable. Rule 1203 also provides that an expert witness must not give oral evidence unless they have acknowledged in writing that they have read the Harmonised Code of Conduct and agree to be bound by it, and similarly, if an expert report does not contain a statement to that effect then the report is deemed to have not been validly served.
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New South Wales | The Harmonised Code of Conduct is contained in Schedule 7 to the Uniform Civil Procedure Rules 2005 (NSW).
Rule 31.23 of the Uniform Civil Procedure Rules 2005 (NSW) provides that an expert witness must be provided with a copy of the harmonised code and must comply with it. Rule 31.23 also provides that, unless otherwise ordered, the Court may not admit or receive written or oral evidence from an expert witness unless the expert witness acknowledges that he or she has read the Harmonised Code of Conduct and agrees to be bound by it.
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Northern Territory | The Harmonised Code of Conduct is set out in Practice Direction No 6 of 2015 Expert Reports. The Practice Direction provides that an expert who provides a report to which the Practice Direction applies must comply with the Harmonised Code of Conduct.
The Practice Direction applies in addition to, and to the extent that it is not inconsistent with, the requirements of Order 44 (Expert Evidence) of the Supreme Court Rules (NT).
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Tasmania | The Harmonised Code of Conduct is contained within Practice Direction 1 of 2016 Expert Opinion Evidence - Expert Evidence Code of Conduct.
Rule 516 of the Supreme Court Rules 2000 (Tas) provides that a party that intends to present the evidence of an expert at a trial must serve on each other party a report containing the evidence, as well as a statement signed by the expert containing an acknowledgement by the expert that he or she has read and understood the Harmonised Code of Conduct, and has complied with and will continue to comply with the Harmonised Code of Conduct.
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Victoria | The Harmonised Code of Conduct is contained in Form 44A of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).
Subrule 44.03(1) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) provides that, unless otherwise ordered, a party intending to adduce expert evidence must provide the expert witness with a copy of the Harmonised Code of Conduct as soon as practicable.
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To date, the Federal Circuit and Family Court of Australia (Division 1), Queensland, Western Australia and South Australia have not implemented the Harmonised Code of Conduct.
In relation to the Federal Circuit and Family Court of Australia (Division 1), see Part 7.1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).