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JOINT STANDING COMMITTEE ON TREATIES
28/02/2011
Treaties referred on 16 November 2010 and tabled on 9 and 10 February 2011

CHAIR —Welcome. Although the committee does not require you to give evidence under oath, I should advise you that this hearing is a legal hearing of the parliament and warrants the same respect as proceedings of the House and the Senate. The giving of false or misleading evidence is a serious matter and may be regarded as a contempt of the parliament. If you nominate to take any questions on notice, could you please ensure that your written response to questions reaches the secretariat within seven working days of your receipt of the transcript of today’s proceedings. I invite you to make any introductory remarks you wish to make before we proceed to questions.

Mrs Moore —Thank you, Mr Chair. I will just make a brief introductory statement. The purpose of the Trans-Tasman Court Proceedings and Regulatory Enforcement Agreement is to streamline procedures for litigation with cross-Tasman elements. It is one part of the arrangements for Closer Economic Relations between Australia and New Zealand which commenced with the 1983 Australia New Zealand Closer Economic Relations Trade Agreement. In 2009, two-way bilateral investment between the two countries totalled $110 billion and it continues to increase annually. The greater movement of people, assets and services across the Tasman also increases the prospects for litigation with a trans-Tasman element. The implementation of the agreement should reduce the time and costs involved in such litigation. The agreement had its genesis in 2003, culminating in its signature in 2008. Since 2003, extensive discussions and consultations between the Australian and New Zealand governments, the states and territories, the courts, the legal profession and other interested stakeholders have taken place. This agreement is supported by all stakeholders.

The key elements of the agreement are that it will allow most initiating processes of any court in either country to be served without the need to obtain the leave of the court to do so. It provides for the registration and enforcement of most judgments of any courts in either country. It allows for the service and enforcement of certain specified tribunal decisions in either country. It permits certain courts to grant interim relief in support of court proceedings in the other country, such as, for example, a Mareva injunction for freezing assets. It applies a common test when deciding whether a court in Australia or New Zealand is the most appropriate forum to resolve disputes so that you do not end up with parallel proceedings happening in two different courts, and it allows certain specified civil penalties and criminal fines to be enforced by the courts of the other country. Legislation to implement the agreement has almost been finalised in both countries, and regulations and amendments to court rules are currently being prepared in consultation with stakeholders. The agreement will not commence until it receives final approval through the parliamentary processes and all implementation measures are in place. Once operational, the new trans-Tasman scheme should ensure that cross-Tasman litigation is simpler, cheaper and more efficient. This will increase certainty for those engaged in cross-Tasman trade and will be another important step towards closer economic integration between Australia and New Zealand. Thank you, Mr Chair.

CHAIR —Thank you. The national interest analysis says that the resolution of trans-Tasman legal disputes can be time consuming, expensive and complicated. What is the volume of the cross-jurisdiction cases that come up between New Zealand and Australian courts annually or—

Mrs Moore —We do not have accurate statistics on that, because unfortunately the courts do not keep the statistics to enable us to extract them.

CHAIR —Do you have any examples of these things being time consuming or complicated? Where is the origin of that statement?

Mr John —The complexities arise because Australia and New Zealand treat each other mainly as two foreign countries and litigation conducted between parties in Australia and New Zealand is conducted in accordance with the same rules that apply between foreign nations. The complexities arise because there are quite complex private international rules that would apply to these transnational litigation proceedings and tests, for example, that would apply in Australia would apply differently in New Zealand to some of the questions that arise in transnational litigation between the two countries. Service, for example, is one of the issues that we obviously address in this agreement and proceedings on that are much more complicated at the moment because there are no formal arrangements between New Zealand and Australia on foot in regard to service. If you look at, for example, issues such as tests—which I alluded to just before—and we have two different tests dealing with the jurisdiction of the court or whether a court should exercise the jurisdiction over a matter that can lead to problems between the two jurisdictions, making it more complicated for parties to estimate as to which way the courts would find. There are a couple of other examples—quite a few areas.

Mrs Moore —So the complexity arises from the procedural aspects rather than the underlying course of action.

CHAIR —There are certain matters excluded from the agreement, such as those under the Family Court or relating to child welfare. Can you explain to us the reason for those areas being carved out and the way in which Australia and New Zealand currently cooperate on these matters?

Mr John —First of all that was a recommendation made by the working group that was looking at these issues. Those recommendations were adopted. The reason why these recommendations were made was essentially because either there are already international agreements to which Australia and New Zealand are already party to which are operational in that sense between the two countries or alternatively there are some statutory regimes already in place that have made these kinds of proceedings already easier for that particular subject matter between the two countries.

CHAIR —Okay. I want to ask you about the impact on business. It is suggested in the national interest analysis that the proposals will support trade and commerce. Can you tell us something about the benefits to business under the changes?

Mrs Moore —We anticipate that the implementation of this agreement should increase certainty for business, because litigation will become simpler, so that if there is a dispute with a trans-Tasman element that arises between, say, a business in Australia and a business in New Zealand it will be simpler to resolve that dispute through the courts than is currently the case. So it will increase certainty in the business community for people engaged in trans-Tasman trade.

Mr FORREST —I want to pursue the Chair’s question about the exemptions. The Family Court and child custodial matters, to me, would be super-sensitive issues, given the number of Kiwis and Australians that move between the two countries. If it is excluded from these arrangements, I want to know—further to the Chair’s question—how arrangements in those areas currently work to justify why they are not included in this agreement.

Mrs Moore —There is an organisation called the Hague Conference which deals with private international law issues, and quite a few of their agreements deal with family law related issues. So, for example, there is a Hague agreement on child abduction and there is a Hague agreement on child maintenance to which Australia and New Zealand are already party. Those agreements work very well and very efficiently. People are already familiar with them, so we did not want to interfere with those arrangements in creating this new scheme. They will continue to operate as they already do.

Dr STONE —To what extent are our legal practitioners—Australian lawyers and New Zealand lawyers—able to work in each others jurisdictions without changes or special registrations? Is this also movement in that area of being able to work without impediment in either New Zealand or Australia?

Mrs Moore —Not specifically. Generally, if one lawyer wants to appear, for example, via video conference in a court in the other country, they still have to be admitted to practice in that country. There is a small exception to that in relation to applying to have the proceedings stayed on the grounds that the other country’s court is the more appropriate venue for that dispute to be heard in, but otherwise it does not interfere with the regulation of the legal profession in either country.

Dr STONE —So won’t that leave a major impediment still in place? If you are being represented by a law firm in Australia, clearly registered to function in whatever state, and then they cannot give this video conference evidence or do the work they need to do in the other jurisdiction, is not that a major impediment to in fact a free-flowing, less bureaucratic legal interchange between the two countries?

Mr John —I have to say that it was not addressed in this particular context in the sense that there were specific regulations. My understanding is there is work being done around mutual recognition across the Tasman, but I would have to take that question on notice in order to provide detailed information on that, because that is not my area.

Dr STONE —So that is unfinished business?

Mr John —We are not dealing with that particular aspect of it, no.

CHAIR —If you could take that on notice, we would appreciate it.

Senator O’BRIEN —I am prompted to ask this question because there are certain notable proceedings taking place in the United Kingdom about an extradition. I see in this agreement there is provision for the enforcement of subpoenas. If someone were subpoenaed under this agreement, rather than extradited, would they have the same protections against being returned to New Zealand as they would under an extradition arrangement?

Mr John —There are safeguards with respect to subpoena proceedings that have been incorporated into the legislation. In as far as they protect in the same way as some would be protected under an extradition request, a different area within the department deals with that kind of question and I must admit that I am not be able to comment here but I will be very happy to provide further information.

Senator O’BRIEN —If you could take that on notice, that would be good. It is probably less contentious with New Zealand, but I can imagine that inventive prosecutors might look at this option. For example, with a country that had a death penalty it would be a way of circumventing our refusal to cooperate in proceedings where a death penalty was involved.

Dr STONE —New Zealand does not have the death penalty.

Senator O’BRIEN —They do not now.

Ms LIVERMORE —In the attachment on consultation I note that point forty just says that regular consultation on implementation continues to occur between the relevant departments. Can you talk about what that consultation is covering and what the next steps following the ratification of this agreement are?

Mrs Moore —There has already been legislation passed by the parliaments of both countries. We need to make some minor amendments to our legislation. At the moment the main discussions with the states and territories are about the regulations and the amendment of court rules to make sure that all the implementation measures are in place before the agreement can actually commence.

CHAIR —Thank you for attending to give evidence today. If the committee has any further questions, the committee secretariat may seek further comment from you at a later date.

[11.20 am]