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Tuesday, 23 August 1994
Page: 75

Senator SCHACHT (Minister for Small Business, Customs and Construction) (5.42 p.m.) —I table a revised explanatory memorandum relating to the Evidence and Procedure (New Zealand) Bill 1994 and move:

  That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

  Leave granted.

  The speeches read as follows—


This bill implements arrangements that have been agreed with New Zealand to facilitate obtaining evidence from New Zealand for use in Australian proceedings and from Australia for use in New Zealand proceedings, and to facilitate proof of each country's laws and official acts and documents.

At present, unless a witness is willing to attend voluntarily, evidence is obtained between Australia and New Zealand by means of a letter of request to the other country's judicial authorities or arrangements for evidence to be taken on commission. These methods are more cumbersome and expensive, and much less satisfactory, than obtaining the evidence of the witness directly in the course of the hearing.

The arrangements implemented in the bill provide for evidence to be given in the course of a hearing by requiring attendance of the witness at the court, or by evidence being given by video link or telephone.

Broadly similar arrangements to those contained in the bill were implemented in 1990 in relation to a very narrow range of competition law cases. These 1990 arrangements are replaced by the new and broader schemes in this bill.

These arrangements reflect the close relationship between New Zealand and Australia especially in, but not limited to, the economic area. There is a need for Australian New Zealand legal co-operation to keep pace with developments in other areas.

This bill provides for-

Australian subpoenas to be served in New Zealand;

enforcement of New Zealand subpoenas served in Australia;

Australian courts to take evidence by video link or telephone from New Zealand;

sanctions and administrative arrangements in support of New Zealand courts taking evidence from Australia by video link or telephone; and

judicial notice to be taken of New Zealand laws and facilitated proof of New Zealand public and official acts and documents.

The New Zealand Parliament passed complementary New Zealand legislation on 30 June 1994.

The arrangements relating to subpoenas will apply in proceedings except criminal proceedings and family law proceedings. These exclusions were sought by New Zealand. The other arrangements will apply in all kinds of civil and criminal proceedings.

The States and Territories were consulted in the development of these arrangements, and gave broad support to them. To provide flexibility for States and Territories the arrangements for trans-Tasman subpoenas and taking evidence by video link or telephone will not apply automatically to State and Territory courts. They will apply to prescribed State and Territory courts, as well as to all federal courts.

The provisions of the bill relating to judicial notice of New Zealand laws and proof of New Zealand public and official acts and documents will apply to all Australian courts.

Appropriate safeguards and protection are provided for persons who are involved in proceedings under the bill.

Australian subpoenas

Under the bill an Australian subpoena can be served in New Zealand if leave for service is given by a superior court judge.

In deciding whether to grant leave, the judge must take into account the significance of the evidence to be given or the document or thing to be produced by the witness, and whether it could be obtained by other means without significantly greater expense, and with less inconvenience to the witness.

Safeguards for witnesses include—

The subpoena must be served no later than a day specified by the judge and must be accompanied by a copy of the order granting leave, and an information notice setting out the witness's rights and obligations under the subpoena; and

The witness's reasonable expenses of complying with the subpoena must be paid or tendered to the witness a reasonable time before the time for compliance.

In addition, a special procedure is provided for a person served with a subpoena to apply to set it aside. An application to set aside may be made by fax to the appropriate court. It may be determined without a hearing if neither party objects, and must be conducted by video link or telephone if the person served so requests.

The subpoena must be set aside if the person cannot reasonably attain necessary travel document or compliance would expose the person to criminal or civil sanction (except a civil penalty under the Trade Practices Act). Grounds on which the subpoena may be aside include hardship or serious inconvenience.

If the subpoena only requires production of documents or things, it must permit compliance by producing the documents or things at a registry of the High Court of New Zealand.

New Zealand subpoenas

The bill obliges persons in Australia who are served with a New Zealand subpoena in accordance with the bill and with New Zealand law to comply with it. Failure to comply without proper excuse is taken to be a contempt of the Federal Court.

Video link or telephone evidence from New Zealand

The bill enables courts to direct that evidence be taken or submissions made by video link or telephone from New Zealand where it is more convenient to do so. Such a direction may only be made where suitable facilities are available or can reasonably be made available.

Courts are authorised to make orders for the payment of expenses incurred in connection with taking evidence or making submissions by video link or telephone.

Video link or telephone evidence from Australia

The bill authorises New Zealand courts to receive evidence or submissions by video link or telephone from Australia.

In relation to the taking of video link or telephone evidence by a New Zealand court from a person in Australia, the bill

authorises a New Zealand court to administer an oath or affirmation to a witness in Australia;

confers the same protection on persons participating in the proceedings as such persons would have in a proceeding before the Federal Court;

applies section 35 cf the Crimes Act 1914, which relates to false evidence, to evidence; and

creates offences relating to misconduct while evidence is being given in Australia by video link or telephone.

Judicial notice of New Zealand laws and proof of New Zealand public and official acts and documents

Under the bill all Australian courts are to take judicial notice of the content and commencement of New Zealand laws and of Proclamations and orders made by the Governor-General of New Zealand. It also includes provisions to facilitate the proof in Australian courts of New Zealand public and official acts and documents.


The bill, especially its provisions relating to subpoenas and video link evidence, will make a significant reduction to the cost of litigation before Australian courts involving trans-Tasman elements and also improve the quality of evidence available to courts in such cases.

The bill is expected to have little impact on Commonwealth expenditure or revenue.

I table the explanatory memorandum for the bill.

I commend the bill to the Senate.


This bill is consequential upon the Evidence and Procedure (New Zealand) Bill 1994. It sets out transitional arrangements for that bill and makes consequential amendments to the Evidence Act 1905 and the Federal Court of Australia Act 1976.

The bill is expected to have little impact on Commonwealth expenditure or revenue. I table the explanatory memorandum for the bill.

I commend the bill to the Senate.

  Debate (on motion by Senator Reid) adjourned.