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Law and Justice (Cross Border and Other Amendments) Bill 2009

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2008 - 2009

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

LAW AND JUSTICE (CROSS BORDER AND OTHER AMENDMENTS) BILL 2009

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

(Circulated by authority of the Attorney-General,

the Honourable Robert McClelland MP)

 



LAW AND JUSTICE (CROSS BORDER AND OTHER AMENDMENTS) BILL 2009

 

 

OUTLINE

 

The Bill amends the Service and Execution of Process Act 1992 (SEPA) - which establishes a cooperative scheme for the service and execution of process and the enforcement of judgments between States and Territories - to facilitate operation of a Cross Border Scheme which is to be established by Western Australia, South Australia and the Northern Territory, and other similar cross border initiatives.  The Bill also makes amendments to SEPA to confirm the capacity of a prisoner to give evidence by audiovisual link before an interstate court, authority, tribunal or person. 

 

In addition, the Bill amends the Evidence and Procedure (New Zealand) Act 1994 (EPNZ Act) to extend the cooperative scheme for the service of subpoenas between Australia and New Zealand to certain family proceedings.

 

Schedule 1 to the Bill amends SEPA to provide that the Act will not apply where the Cross Border Justice Scheme, or another scheme established under legislation prescribed under by regulations under the Act, would otherwise operate .  The Cross Border Justice Scheme is a joint initiative between Western Australia, South Australia and the Northern Territory and will initially apply in the border region known as the Ngaanyatjarra Pitjantjatjara Yankunytjatjara lands.  The scheme will allow judicial officers, police and other officials working in the criminal justice system to deal with offenders from any of the participating jurisdictions, provided the offender has a connection with the region (for example, the alleged offence occurred in the region or the offender was arrested in the region).  While the Cross Border Scheme will be established under State and Territory legislation, the amendments contained in Schedule 1 are necessary to ensure that SEPA will not override arrangements prescribed under the scheme where those arrangements would be inconsistent with arrangements under SEPA. 

 

Schedule 2 to the Bill will amend SEPA to make clear that, when subpoenaed to give evidence in interstate court or tribunal proceedings, persons in prison may give evidence by audio or video link with the approval of the Court.  State and Territory legislation already provides for prisoners to give evidence by audio or audiovisual link in proceedings in the jurisdiction of their imprisonment.  However, while SEPA provides for interstate service of subpoenas and enables prisoners in one State or Territory to give evidence in another, there is currently no explicit provision under the Act for a prisoner to give evidence by audio or audio visual link in proceedings in another State or Territory.

 

Schedule 3 to the Bill will amend the EPNZ Act to expand the range of proceedings that come within the scope of the cooperative scheme established under the Act and the Evidence Act 2006 (NZ) for the service of subpoenas between the two jurisdictions.  Currently the Act excludes family proceedings from the operation of the scheme.  The amendments will remove this general exclusion, consistent with Australia’s longstanding view that the scheme should apply broadly to civil proceedings, including proceedings involving family law .  While some family-related proceedings will remain excluded, the majority of family proceedings will be included under the scheme.  Family proceedings were originally excluded from the Trans-Tasman scheme at the request of New Zealand.  However, New Zealand now supports removal of the exclusion and has already passed amendments to facilitate the expanded application of the scheme.  The amendments will ensure consistency between Australian and New Zealand legislation implementing the scheme.

 

FINANCIAL IMPACT STATEMENT

 

The proposed Bill will not have any significant financial impact.

 



NOTES ON CLAUSES

 

Clause 1: Short title

 

1.       Clause 1 is a formal provision specifying the short title of the Bill.

 

Clause 2:  Commencement

 

2.       All measures will commence on the day the Act received Royal Assent.

 

Clause 3: Schedule(s)

 

3.       Clause 3 is a formal provision to ensure that the Schedules to the Bill have effect as specified in the Schedules.

 



SCHEDULE 1 - Amendments relating to the cross border justice scheme

 

Service and Execution of Process Act 1992

 

Item 1 - Subsection 3(1)

4.       This item inserts a new definition of ‘cross border laws’ in subsection 3(1) for the purposes of the new subsection 8(3A) inserted by item 2 below. 

5.       The definition refers to the cross border laws of a participating jurisdiction, within the meaning of the Cross-Border Justice Act 2008 of Western Australia.  Section 7(1) of the Western Australian Act defines ‘participating jurisdiction’ as the State or ‘another participating jurisdiction’.  ‘Another participating jurisdiction’ is defined as South Australia and the Northern Territory.

6.       The definition also extends to the laws of a State, or provisions of a law of a State, prescribed by regulation.  This is to enable application of the new subsection 8(3A) to similar cross border schemes set up between jurisdictions in the future.

Item 2 - After subsection 8(3)

7.       This item inserts a new subsection 8(3A) to allow cross border laws to operate unaffected by SEPA.  Cross border laws, as defined in the definition inserted by Item 1 above, will have primacy over the general scheme that would otherwise apply under SEPA, to the extent that they overlap.  Accordingly, the cross border laws will operate alongside SEPA except where there is a direct inconsistency with SEPA.  In these circumstances SEPA will be disapplied.

8.       For example, section 82 of SEPA provides that a person named in a warrant issued in another State may be apprehended by a police officer or Sheriff of the State in which the person is found, or by the Australian Federal Police.  Under the Cross Border Justice Scheme, a police officer will be able to arrest a person (who has a connection with the cross border region) under a warrant and under the laws of that officer’s jurisdiction in any participating jurisdiction.  The effect of subsection 8(3A) will be that a person named in a warrant issued in one State may be apprehended by a person authorised to apprehend the person under a cross border law, as well as by a person authorised to apprehend the person under SEPA.

9.       Where there is a direct inconsistency between SEPA and the cross border laws, subsection 8(3A) will operate to disapply SEPA.  For example, subsection 83(8) of SEPA requires a magistrate to order that a person produced under a warrant issued in another State be remanded on bail to appear in the place of issue of the warrant, or be taken to a specified place in the State of issue of the warrant.  However, under the Cross Border Justice Scheme, appropriately appointed magistrates will have the power to deal with a matter in any of the participating jurisdictions, under the law of the place where the offence took place.  As a result of s8(3A), where cross border laws would apply to allow a magistrate to hear a matter outside the jurisdiction in which the warrant was issued, subsection 83(8) of SEPA will not apply.



SCHEDULE 2 - Amendments relating to taking evidence by audio or audiovisual link

 

Service and Execution of Process Act 1992

 

Item 1 - Subsection 3(1)

10.   This item inserts a new definition of ‘audio link’ into SEPA.

11.   State and Territory legislation implementing model provisions on the taking of evidence interstate by audio or video link gives courts a discretion to order the taking of evidence and submissions by audio or video link from a person or persons physically present in another State, including a person in custody.  While State and Territory legislation is substantially uniform, there are some differences between the definition of key terms.  The adoption of a broad definition of ‘audio link’ will ensure consistency with the range of approaches taken under State and Territory legislation.

12.   The new definition will also allow SEPA to accommodate technological developments in audio communication.

Item 2 - Subsection 3(1)

13.   This item inserts a new definition of ‘audiovisual link’ into SEPA.

14.   As with the definition of ‘audio link’ inserted by Item 1 above, this amendment will ensure consistency with the terminology used under State and Territory legislation to provide for audio and visual communications and will enable the Act to accommodate technological developments.

Items 3, 4, 6, 7, 9, 10, 11, 12, 14, 15, 17, 18, 19, 20 and 23

15.   These items insert the new definitions of ‘audio link’ and ‘audiovisual link’, replacing references to ‘video link or telephone’. 

16.   These items are consequential amendments, as a result of items 1 and 2 above.

Items 5, 13 and 21 - Paragraph 28(b), Subparagraph 56(b)(ii) and Subparagraph 75(b)(ii)

17.   Part 3, Division 1 of the Act deals with service of subpoenas generally.  Currently, sections 28 provides that Division 1 applies to subpoenas addressed to a person who is not in prison or who is in prison but is not required to attend before a court or authority to comply with the subpoena

18.   Part 4, Division 3, Subdivision A of the Act deals with the service of subpoenas by tribunals in the performance of adjudicative functions generally.  Part 4, Division 4, Subdivision A of the Act deals with the service of subpoenas by tribunals in the performance of investigative functions generally.  Currently, sections 56 and 75 apply their respective subdivisions where a subpoena is addressed to a person who is not in prison or who is in prison but is not required to attend before the tribunal to comply with the subpoena.

19.   To preserve the distinction between subpoenas that require a prisoner to attend a place (either inside or outside the prison, including within the State or Territory of their imprisonment) and subpoenas that do not, these items will amend sections 28, 56 and 75 to make clear that the exclusion of subpoenas addressed to prisoners also applies to prisoners who are required to give evidence by audio or audiovisual link. 

Items 8, 16 and 22 - Paragraph 38(b), Paragraph 66(b), Paragraph 78(b)

20.   Part 3, Division 2 of SEPA deals with the service of subpoenas addressed to persons in prison.  Currently, section 38 provides that Division 2 applies to subpoenas addressed to a person in a prison in a State other than the State of issue and who is required to attend before a court, authority or person for the purposes of complying with the subpoena.

21.   Part 4, Division 3, Subdivision B of SEPA deals with service of subpoenas issued by tribunals in the performance of adjudicative functions that are addressed to persons in prison.  Part 4, Division 4, Subdivision B of SEPA deals with service of subpoenas issued by tribunals in the performance of investigative functions that are addressed to persons in prison.  Currently, sections 66 and 78 apply their respective subdivisions to subpoenas addressed to a prisoner who is in prison in a State other than the place of issue and who is required to attend before the tribunal to comply with the subpoena.

22.   These items will amend sections 38, 66 and 78 to make clear that this division and these subdivisions will also apply where prisoner is required to attend a place (either inside or outside the prison, including within the State or Territory of their imprisonment) to give evidence by audio or audio visual link to comply with the subpoena.

Item 24 - Paragraph 129(a)

23.   Currently paragraph 129(a) of SEPA requires a custodian to assist a prisoner served with an interstate subpoena to comply with that subpoena if the prisoner need not attend before the court, an authority or tribunal that issued the subpoena.

24.   This item amends section 129 to make clear that the exception to the obligation also extends to circumstances where the prisoner would, for the purposes of complying with a subpoena, be required to appear or give evidence by audio or audiovisual link before the court, an authority or tribunal that issued the subpoena.

25.   The intention is that subpoenas requiring a prisoner to attend a place (either inside or outside the prison, including within the State or Territory of their imprisonment) to give evidence by audio or audiovisual link will be dealt with under SEPA in the same way as subpoenas requiring a prisoner to attend before a court, an authority or tribunal.  An Order for Production would be used in these cases. 



SCHEDULE 3 - Amendments relating to New Zealand

 

Evidence and Procedure (New Zealand) Act 1994

 

Item 1 - Subsection 3(1)

26.   This item inserts a new definition of ‘excluded family proceedings’ into the EPNZ Act.  The purpose of this new definition is to exclude two categories of family proceedings from the expanded application of the Act.

27.   The effect of this new definition is that family proceedings will fall within the scope of the EPNZ Act except where those proceedings are proceedings in respect of applications made under Hague Convention on the Civil Aspects of International Child Abduction 1980 or relate to the status or property of a person who is not, or may not be able to, fully manage his or her affairs .

28.   The continued exclusion from the scheme of proceedings relating to the Hague Convention is necessary as there is concern that the special regime established by the Convention, which aims to hear cases quickly, would be undermined if the arrangements established under the Trans-Tasman scheme applied to these proceedings.  These proceedings are also specifically excluded under the equivalent New Zealand Act.

29.   The definition also maintains the exclusion of proceedings relating to the status or property of a person who is not, or may not be able to, fully manage his or her affairs.  Most States and Territories in Australia have guardianship boards or tribunals to deal with these matters.  SEPA facilitates the interstate service of subpoenas within Australia, but does not facilitate the interstate service of subpoenas issued by all State and Territory guardianship bodies (depending on the constitution and operation of the body).  It would be anomalous if these subpoenas could be served in New Zealand but not interstate within Australia.

Item 2 - Subsection 3(1) (definition of family proceedings )

30.   This item repeals the definition of ‘family proceedings’ under the EPNZ Act as a consequence of amendments to sections 7 and 18 in items 3, 4 and 5 below.

Item 3 - Section 7

31.   Part 2 of the EPNZ Act deals with Australian subpoenas.  Currently, section 7 provides that Part 2 applies to a subpoena issued in proceedings in a federal court or a court of a State or Territory specified under regulations other than a criminal or family proceeding.

32.   This item amends Section 7 to expand the application of Part 2 to family proceedings other than ‘excluded family proceedings’.

Item 4 - Paragraph 7(b)

33.   This item is a consequential amendment to paragraph 7(b), as a result of item 3.

Item 5 - Paragraph 18(a)

34.   Part 3 of the EPNZ Act deals with New Zealand subpoenas.  Consistent with the amendment to section 7, this item removes family proceedings, other than ‘excluded family proceedings’, from those proceedings excluded from the operation of the provisions in Part 3.

Item 6 - Application

35.   This item provides that removal from the EPNZ Act of the general exclusion of family proceedings (other than ‘excluded family proceedings’) will apply to proceedings commenced on or after the commencement of this measure.

Item 7 - Subsection 25(3)

36.   This is a technical amendment to subsection 25(3) of the EPNZ Act to correct a circular provision.  Subsection 25(3) is intended to set out the powers of an Australian court taking video link or telephone evidence from New Zealand.  This item amends the subsection to provide that an Australian court may exercise in New Zealand, in connection with taking evidence, all its powers the court is permitted, under New Zealand law, to exercise in New Zealand.