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Evidence and Procedure (New Zealand) Bill 1993



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House: House of Representatives

Portfolio: Attorney-General

Commencement Date: The Bill commences on a day to be fixed by Proclamation, except for section 1 and 2 which commence on the day on which the Bill receives Royal Assent.

Purpose

The Bill provides for co-operation between Australia and New Zealand in relation to:

* the service and enforcement of subpoenas;

* the taking of evidence by the courts, by video link or telephone;

* the taking of judicial notice of public and official acts and documents.

Background

The Trade Practices (Misuse of Trans-Tasman Market Power) Act 1990 (the Act) effected a number of amendments to the Trade Practices Act 1974 in order to implement Australia's obligations under article 4 of the protocol to the Australian-New Zealand Closer Economic Relations-Trade Agreement on Acceleration of Free Trade and Goods. The Act provided for the exercise of jurisdiction by the Federal Court of New Zealand in relation to certain anti-trust matters and for the exercise in Australia of jurisdiction by the High Court of New Zealand in like anti-trust matters. There are provisions for mutual assistance including the taking of evidence in one country for use by the court of another and there is also provision for the reciprocal enforcement of judgements given in anti-trust matters 1.

This Bill introduces similar arrangements but with a much broader scope and not limited to financial matters 2.

Complementary New Zealand legislation was introduced in the New Zealand Parliament on 21 September 1993 3.

The Evidence and Procedure (New Zealand)(Transitional Provisions and Consequential Amendments) Bill 1993 , for which a separate Digest has been prepared, should be read in conjunction with this Bill.

Main Provisions

Proposed section 3 is the definitions section of the Bill, and includes:

* "family proceeding" which includes proceedings relating to marriage or divorce, maintenance of a spouse or former spouse, property arising out of a marriage or defacto relationship, protection of persons from domestic violence, the status or property of a person who is not fully able to manage her or his own affairs, and child guardianship, custody, access, maintenance, paternity, and adoption;

* "spouse" which includes a defacto spouse.

Proposed section 4 provides an extended definition of "court" for the purposes of the Bill (other than parts 5 and 6) stating that a tribunal is a court if the regulations so provide. It further provides that a tribunal established under a law of the Commonwealth is included in a reference to a federal court.

Australian Subpoenas - Part 2

Proposed section 7 provides that this part of the Bill applies to subpoenas issued in proceedings in a federal court or a court of a state or territory that is specified in regulations. The part does not apply to subpoenas issued in criminal or family proceedings. This later exclusion was at the request of New Zealand 4.

Proposed section 8 authorises subpoenas to be served in New Zealand, if leave is given under proposed section 9. Service is subject to regulations and applicable rules of court, and may require attendance by a named person at a place in Australia or New Zealand.

For proceedings in a superior court, leave must be granted by that court. For proceedings in an inferior court, leave may be granted by the Federal Court, or a State or Territory Supreme Court for inferior courts in their jurisdiction.

Before granting leave the Judge must take into account matters including the following:

* significance of the evidence, document or thing to be produced;

* whether the evidence, document or thing could be obtained by other means without significantly greater expense, and with less inconvenience to the person named.

The Judge must impose a date after which the subpoena cannot be served, and may impose other conditions. Leave may not be granted where the person named is less than 18 years of age.

Proposed section 10 provides that service may only be effected in the same way in which it could be done in the State or Territory in which the subpoena was issued. Service must be accompanied by a copy of the order giving leave to serve it in New Zealand and be a notice in the prescribed form which:

* sets out the rights and obligations of the person named in relation to the subpoena;

* includes information about how the subpoena may be set aside.

Proposed section 11 renders service ineffective if sufficient allowances and travelling expenses are not paid or tendered to the person named at the time of service or at a reasonable time before compliance with the subpoena is required.

Proposed section 12 provides that where the subpoena only requires the production of a document or thing, the person named must be allowed to produce it to a registry of the High Court of New Zealand, not later than 10 days before it is required in court.

Proposed section 13 allows a person to apply for a subpoena to be set aside to the court from which leave for service was granted. The application may be made by fax.

Proposed section 14 requires the court to set aside a subpoena, in whole or in part, if it is satisfied that:

* the person does not have the required travel documents and cannot obtain them in the time permitted;

* were the person to comply with the subpoena, she or he would be liable to be detained for the purpose of serving a sentence;

* the person is liable for prosecution, or is being prosecuted for an offence in Australia; or

* the person is liable to imposition of a penalty in civil proceedings in Australia (other than under the Trade Practices Act 1974).

* the person is subject to a restriction on her or his movements, imposed by law or by order of a court, that is inconsistent with compliance with the subpoena.

The court may set aside a subpoena if it is satisfied that:

* the evidence could be obtained by other means without significantly greater expense;

* compliance with the subpoena would cause the person hardship or serious inconvenience;

* the relevant document or thing should not be taken out of New Zealand and satisfactory evidence of its contents can be given by other means.

The court may determine the application without a hearing unless the applicant or the person issuing the subpoena object and the court may hold a hearing by video link or telephone.

Proposed section 15 entitles the person named to payment of reasonable expenses incurred in complying with the subpoena.

Proposed section 16 allows the court to issue a certificate, where a person named fails to comply, stating that leave was grant by the appropriate court and the person named has failed to comply.

New Zealand Subpoenas - Part 3

Proposed section 18 provides that this Part of the Bill applies to subpoenas issued in proceedings in a New Zealand Court, other than a criminal or family proceeding, and for which a Judge of the High Court of New Zealand has given leave for service in Australia.

Proposed section 19 requires that service be accompanied by a copy of the order granting leave and a notice setting out rights and obligations of the person named.

Proposed section 20 requires compliance with a subpoena correctly served and where reasonable expenses are paid. Non-compliance is a contempt of the Federal Court of Australia and punishable accordingly under proposed section 21.

Proposed section 22 allows receipt of documents or things required by subpoena by a New Zealand court, to be received by the registry of specified Australian courts. The Australian court must notify the New Zealand court by fax or electronic mail of the receipt of the document or thing, and transmit it to the New Zealand court.

Proposed section 23 provides that the right to serve a subpoena under New Zealand law on a New Zealand citizen in Australian is not effected by this Part.

Video Links and Telephones in Australian Proceedings - Part 4

Proposed section 25 allows the Australian courts to direct that evidence be taken or submissions made by video link or telephone, from New Zealand, provided it is satisfied that the necessary facilities are available and it would be convenient to do so. An Australian court may exercise any powers it is permitted to under New Zealand law. This applies to any civil or criminal proceedings.

Proposed section 26 requires that where a video link is used persons in both court rooms must be able to see and hear each other.

Proposed section 27 requires that where a telephone is used conference facilities must be available so that persons involved can hear the proceedings.

Proposed section 29 allows New Zealand counsel to undertake examination, cross-examination and re-examination of witnesses, and make submissions, in proceedings in an Australian court undertaken in New zealand by video link or telephone.

Video Links and Telephones in New Zealand Proceedings - Part 5

Proposed section 30 allows a New Zealand court to similarly take evidence or receive submissions by video link or telephone.

Proposed section 31 allows the New Zealand courts to exercise any of their powers except the power to punish for contempt of court and to enforce or execute its judgements or process.

Proposed section 32 specifically gives the New Zealand court power to direct that proceedings be held in private, certain persons be absent during proceedings or that publication of evidence be restricted or prohibited. Proposed section 33 allows these orders to be enforced by a Judge of the Federal Court of Australia and a contravention will be taken to be a contempt of court.

Proposed section 34 gives participants in the proceedings, including judges, counsel and witnesses, the same protection and immunity as like parties would have in the Federal Court of Australia.

Proposed section 35 allows a New Zealand court to administer an oath or affirmation during proceedings in an Australian court.

Proposed section 36 allows an officer of an Australian court to assist a New Zealand court on request.

Proposed section 37 makes it an offence (punishable by 3 months imprisonment) for a person giving evidence or making a submission in Australia be video link or telephone to a New Zealand court, to:

* assault counsel, a witness or a court officer;

* threaten, intimidate or wilfully insult a judge taking part in the proceedings, an officer of the court including a Master, Registrar or Deputy Registrar, counsel or a witness;

* wilfully interrupt or obstruct the proceedings;

* wilfully and without lawful excuse disobey an order or direction of the court.

Evidence of Certain New Zealand Matters - Part 6

Proposed section 38 provides that this Part applies to all proceedings before a court in Australia, including proceedings relating to bail or sentencing, interlocutory proceedings, and those heard in chambers.

Proposed section 39 applies the Part to faxes in the same way as it applies to originals.

Proposed section 40 provides that proof is not required of New Zealand statutory provisions, proclamations or instruments of a legislative nature. A judge may inform herself or himself about these matters as she or he thinks fit.

Proposed sections 41-45 cover the evidential requirements for use of a number of documents, instruments, and acts including:

* official instruments

* acts of state;

* public documents; and

* documents of a public nature.

The sections generally makes admissible in an Australian court, documents and/or copies of documents, which would be admissible in New Zealand courts.

Miscellaneous - Part 7

Proposed section 47 allows a court to make rules for the carrying out of or giving effect to this Act, provided that they are not inconsistent with the Act or regulations.

Proposed section 48 allows the Governor-General to make regulations. Such regulations cannot be made for a State or Territory without a request in writing from the Governor of the relevant State or the Chief Minister or Administrator of a Territory, as the case may be.

Endnotes

1. Sykes, E.I. and Pryles, M.C., Australian Private International Law, p.140.

2. House of Representatives, Second Reading Speech, p.1.

3. Op. cit., p.2.

4. Op. cit., p.2.

Merrin Mason (06 2772476)

Bills Digest Service 4 January 1994

Parliamentary Research Service

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Commonwealth of Australia 1994

Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, without the prior written consent of the Parliamentary Library, other than by Members of the Australian Parliament in the course of their official duties.

Published by the Department of the Parliamentary Library, 1994.