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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.