A Third party Presenter/Acceptor is an important role in most public and private processes. The purpose of this role is to ensure:
- the genuineness of records; and
- there is a 3rd party witness to your process; and
- you do not need to testify in your own case; and
- most importantly, your record is not considered hearsay, thus avoiding an opposite party or adjudicator undermining your entire process.
By not using a 3rd Party Presenter/Acceptor there is a chance your record or “agreement” with an opposite party will be considered as hearsay and thus possibly inadmissible as evidence. Let’s take a look at the codes that describe this and the reasons behind it.
Commonwealth Evidence ACT 1995, hereinafter, “THE ACT” (each State and Territory will have it’s own local version of this ACT. There will be very similar rules in other countries – eg Rules of Evidence in the US). Under Chapter 3—Admissibility of Evidence there is a set of rules that determine the admissibility of evidence. Some of these rules may or may not be relevant to your private process, however, they certainly may impact your public processes. A private process will in itself contain a need for public processes as well as to ensure the genuineness of a record.
Under Chapter 3, these are the rules for admissibility of evidence:
- Is the evidence relevant? (See Part 3.1.)
- Does the hearsay rule apply? (See Part 3.2. See also Part 3.4 on admissions and Part 3.8 on character evidence.)
- Does the opinion rule apply? (See Part 3.3. See also Part 3.4 on admissions and Part 3.8 on character evidence.)
- Does the evidence contravene the rule about evidence of judgments and convictions? (See Part 3.5.)
- Does the tendency rule or the coincidence rule apply? (See Part 3.6. See also Part 3.8 on character evidence.)
- Does the credibility rule apply? (See Part 3.7. See also Part 3.8 on character evidence.)
- Does the evidence contravene the rules about identification evidence? (See Part 3.9.)
- Does a privilege apply? (See Part 3.10.)
- Should a discretion to exclude the evidence be exercised or must it be excluded? (See Part 3.11.)
A key rule to be aware of is the Hearsay Rule and the Exceptions to the Hearsay Rule. Technically, everything in court is hearsay as is it not a court of fictions? Can a fictional entity do or say anything? However, there is certain evidence that is not considered hearsay, eg is an exception to the hearsay rule. For the purposes of creating a genuine record, a 3rd party whose business it is to keep such records will be needed. For example under the The ACT, section 69 Exception: business records, is a provision that allows business records to be excluded from hearsay and thus be admissible as evidence.
In general terms, the Evidence ACT is simply portraying a “common sense” approach to ensure that records submitted into a court proceeding are in fact genuine. Use this to your advantage. Therefore, having someone under a paid contract who can present, accept and manage records will be a valuable asset in your processes. The 3rd Party Presenter/Acceptor (either in a private or public capacity) will be required under a private or public contract to ensure a record is genuine.
There is a description of the functions a party would expect from a 3rd party presenter/acceptor in the document at this link at the start of each of the steps in the process and summarised at a highlevel below in the diagram (light purple) :