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Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.
i
O v e r v i e w o f
B i l l
The object of this Bill is to provide for New South Wales to participate in a
substantially uniform interstate scheme for the taking or receiving of
evidence, and the making or receiving of submissions. from or in other
participating States.
Preliminary
Clause 1 sets out the name (also called the short title) of the proposed Act.
Clause 2 provides for the commencement of the proposed Act on a day or
days to be appointed by proclamation.
Clause 3 sets out definitions of terms and expressions used in the proposed
Act.
Clause 4 makes it clear that notes in the text of the proposed Act do not
form part of the Act.
Clause 5 makes it clear that the proposed Act will not exclude or limit the
operation of certain other laws for the taking of evidence or making of
submissions or affect any discretion of a NSW court or recognised court with
respect to the conduct of a proceeding and provides for the proposed Act to
extend to any proceeding pending in such a court on the commencement of
the proposed section.
Part 2
Use of interstate audio links or audio visual links
in proceedings in or before NSW courts
Clause 6 applies the proposed Part to any proceeding in or before a NSW
court.
Clause 7 enables a NSW court to direct that a person appear before or give
evidence or make a submission to the court by audio link or audio visual link
from a participating State. A participating State is defined by clause 3 to
mean another State in which provisions of an Act of that State in terms
substantially corresponding to proposed Parts 2 and 3 are in force. A court
may not make a direction if the necessary facilities are unavailable or cannot
reasonably be made available. if i t is satisfied that the evidence or submission
can more conveniently be given or made in this State or if the court is
satisfied by a party opposing the making of the direction that the direction
would be unfair to any party.
Clause 8 provides that evidence may not be given or submissions made by
audio visual link under the proposed Part unless the audio visual facilities
used enable persons who are at the courtroom or other place to see and hear
the person giving the evidence or making the submission and persons who
are at the place where the evidence is given or submission is made to see and
hear persons at the courtroom or other place.
Explanatory note page 2
Clause 9 provides that evidence may not be given or submissions made by
audio link under the proposed Part unless the audio link facilities used enable
persons who are at the courtroom or other place to hear the person giving the
evidence or making the submission and persons who are at the place where
the evidence is given or submission is made to hear persons at the courtroom
or other place.
Clause 10 authorises the NSW court to make orders for the payment of
expenses incurred in connection with taking of evidence or making of
submissions under the proposed Part.
Clause 11 confers on persons entitled to practise as a legal practitioner in a
participating State an entitlement to practise as a barrister or solicitor or both
for the purposes of examining persons giving evidence or making
submissions by audio link or audio visual link under the proposed Part.
Part 3
Use of interstate audio links or audio visual links
in proceedings in participating States
Clause 12 applies the proposed Part to proceedings before recognised
courts. A recognised court is defined by clause 3 to mean a court or tribunal
of a participating State that is authorised by the provisions of a law of that
State in terms substantially corresponding to proposed Parts 2 and 3 to direct
that evidence be taken or submissions be made by audio link or audio visual
link from NSW.
Clause 13 enables a recognised court to take evidence or receive
submissions by audio link or audio visual link from persons in NSW.
Clause 14 authorises the recognised court to exercise any of its powers.
except its powers to punish for contempt or to enforce its judgments or
process. in relation to receiving evidence or submissions by audio link or
audio visual link under the proposed Part. Under the clause. the laws of the
participating State that apply to a proceeding in that State also apply to the
practice and procedure of the recognised court in taking evidence and
receiving submissions from NSW.
Clause 15 specifies some of the orders that may be made by a recognised
court when taking evidence or receiving submissions by audio link or audio
visual link under the proposed Part.
Clause 16 imposes an obligation to comply with an order made by a
recognised court under proposed section 13 or 15.
Explanatory note page 3
Clause 17 confers the same protections on judges and legal practitioners and
other participants in any proceeding in a recognised court in relation to the
taking of evidence or receiving of submissions by audio link or audio visual
link as participants have in such a proceeding before the Supreme Court.
Clause 18 authorises a recognised court to administer oaths and affirmations
to persons in NSW for the purpose of obtaining evidence by audio link or
audio visual link under the proposed Part.
Clause 19 authorises officers of a NSW court to be present. at the request of
a recognised court. at the place where a witness is giving evidence by audio
link or audio visual link in a proceeding in the court and to facilitate the
proceeding as directed by the court.
Clause 20 creates offences. each punishable by 3 months' imprisonment,
relating to conduct while evidence is being given or a submission is being
made in NSW by audio link or audio visual link in a proceeding in a
recognised court. The offences concern assault. threats. intimidation or wilful
insult of persons involved in the proceedings. wilful interruption or
obstruction of the proceedings and disobedience of an order or direction of
the court.
Part 4
Miscellaneous
Clause 21 provides for proceedings for offences against the proposed Act
and regulations.
Clause 22 provides for the making of regulations and rules of court.
Clause 23 provides for the review of the proposed Act.
Explanatory note page 4