Northern Territory Explanatory Statements
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EVIDENCE AND OTHER LEGISLATION (WITNESS ASSISTANCE) AMENDMENT BILL 2006
LEGISLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY
MINISTER FOR JUSTICE AND ATTORNEY-GENERAL
EVIDENCE AND OTHER LEGISLATION (WITNESS ASSISTANCE) AMENDMENT BILL 2006
SERIAL NO. 64
EXPLANATORY STATEMENT
GENERAL OUTLINE
This Bill amends the Evidence Act (with minor consequential amendments to the Justices Act,the Justices Regulations, the Local Court Act, the Local Court Rules, the Supreme Court Rules, the Work Health Court Rules and the Mining Regulations) to reform the law in relation to the provision of what is known as “conduct money” to witnesses who are required to attend court to give or produce evidence.
The new provisions will allow “appropriate arrangements” (the term that will replace “conduct money”) to be provided to witnesses not just in cash, paid up front – but also by pre-paid, vouchers or tickets, or by otherwise arranging the witnesses travel and accommodation etc free of charge.
NOTES ON CLAUSES
PART 1 – PRELIMINARY MATTERSClause 1. Short title
This is a formal clause which provides for the citation of the Bill. The Bill when passed may be cited as the Evidence and Other Legislation (Witness Assistance) Amendment Act 2006.
PART 2 – AMENDMENT OF EVIDENCE ACT
Clause 2. Act amended
The Act being amended in this Part is the Evidence Act.
Clause 3. Amendment of section 4 (Definitions)
New definitions of “evidentiary material” and “evidentiary summons”, which are necessary for the operation of the new provisions in the Act, are inserted.
Clause 4. Repeal and substitution of section 21
Section 21 is repealed.
New section 20A is inserted.
20A. Power to require a person present at proceeding to give evidence or produce evidentiary material
New section 20A is the equivalent of the previous section 21(3).
As new section 21 will be the key provision dealing only with non-appearance of witnesses, previous section 21(3) has been separated from the other provisions in new section 21 (and is now the new section 20A).
New section 20A gives the Court the power to compel a person who is within the area of the Court to give evidence or produce evidentiary material.
The Court may only compel a person to give evidence if they are a competent and compellable.
New section 20A provides that if the person fails, without a reasonable excuse, to comply with a requirement of the Court, the person is guilty of contempt of the Court.
21. Failure to comply with evidentiary summons
New section 21 will be the key provision dealing with non-appearance of witnesses in all Court proceedings.
New section 21(1) states that section 21 applies to a person (referred to as a prospective witness) who has been required to appear before a Court by an evidentiary summons and then fails to appear.
New section 21(2) provides that if a person is required by summons or subpoena to attend a Court as a witness, and does not attend, either a warrant for their arrest may be issued or a summons may be issued asking the person to explain why their
non-attendance should not be dealt with as a contempt of Court.
Under new section 21(3) the Court can only issue the warrant if satisfied (among other things) that “appropriate arrangements” were made for the witness to attend Court. These “appropriate arrangements” must be made by the person who originally issued the summons or subpoena requiring the person to come to Court as a witness (who is referred to as the “applicant party”).
What constitutes “appropriate arrangements” is set out in the proposed new section 21(4). In general terms this is different to the current definition of “conduct money” in that it does not require the assistance to be paid up front in cash.
“Appropriate arrangements” can include pre-payment of travel (for example, by providing airline or bus tickets), or an offer to provide for example transport and accommodation to the witness, free of any cost to the witness.
Under section 21(4)(d) an “appropriate arrangement” may be a written invitation made to the witness,
by the applicant party, to contact the applicant party who will then arrange the witnesses travel and accommodation. This written invitation must include an address.
Under new section 21(5), this address must also include a contact telephone number. This means that the witness may either visit or write to the applicant party, but if this is not possible (as is often the case if the witness lives in a remote or rural area) the witness may also telephone the applicant party to make the arrangements.
New section 21(6) provides that as well as issuing a warrant, the Court may also, or instead, deal with the non-compliance with the original summons as a contempt of Court.
New section 21(7) sets out some necessary definitions for the operation of these new provisions.
Clause 5. Amendment of section 53 (Power of Supreme Court to give effect to application)
Section 53(7) is amended.
The amendment to section 53(7) is necessary to replace the reference in that section to
“conduct money” with a reference to the new
section 21.
PART 3 – CONSEQUENTIAL AMENDMENT OF ACTS
Division 1 – Amendment of Justices Act
Clause 6. Act amended
This Division amends the Justices Act.
Clause 7. Repeal of section 24
Section 24 is repealed, as it deals with the consequence of a witness failing to appear. This is now dealt with in new section 21 of the Evidence Act.
Clause 8. Amendment of section 28 (Proof by affidavit of service of process, handwriting, &c.)
Section 28 is amended to remove any reference to sums of money paid to witnesses for attendance. This is now dealt with in new section 21 of the Evidence Act.
Division 2 – Amendment of the Local Court ActClause 9. Act Amended
This Division amends the Local Court Act.
Clause 10. Amendment of section 3 (Definitions)
The definition of “conduct money” is deleted as it is now redundant. This is now dealt with in new section 21 of the Evidence Act.
Clause 11. Amendment of section 34 (Contempt)
Section 34 is amended to remove any reference to the payment of conduct money. The section now refers to whether a person has a “lawful excuse” for not complying with a summons, which could be provided if the new section 21 of the Evidence Act has not been complied with.
PART 3 – CONSEQUENTIAL AMENDMENT OF SUBORDINATE LEGISLATION
Division 1 – Amendment of Justices Regulations
Clause 12. Regulations amended
This Division amends the Justices Regulations.
Clause 13. Amendment of Schedule 1
Reference to payment of “a reasonable sum” (ie “conduct money””) in form 23 is omitted, as it is redundant.
Division 2 – Amendment of Local Court Rules
Clause 14. Rules Amended
This Division amends the Local Court Rules.
Clause 15. Amendment of rule 21.06 (Person about to leave territory)
Rule 21.06(3) is amended to remove a reference to “conduct money” as it is now redundant. It is replaced with a reference to the new section 21 of the Evidence Act.
Clause 16. Amendment of rule 23.08 (conduct money, expense or loss)
Heading of rule 23.08 is replaced with the new heading “Expenses and losses incurred complying with summons”.
Reference in rule 23.08(1) to “conduct money” is replaced with a reference to appropriate arrangements made under the new section 21 of the Evidence Act.
Reference in rule 23.08(2)(b) to “conduct money” is replaced with a reference to appropriate arrangements made under the new section 21 of the Evidence Act.
Clause 17. Amendment of Schedule 1
References to the payment of “conduct money” in forms 23A, 23B and 23C are omitted (as they are redundant) and replaced with a reference to appropriate arrangements made under the new section 21 of the Evidence Act.
Division 3 – Amendment of Mining Regulations
Clause 18. Regulations Amended
This Division amends the Mining Regulations.
Clause 19. Amendment of regulation 41 (Attendance of witnesses)
Reference to payment of “conduct money” in
rule 41(2) is omitted and replaced with a reference to appropriate arrangements under the new section 21 of the Evidence Act.
Division 4 – Amendment of Supreme Court Rules
Clause 20. Rules Amended
This Division amends the Supreme Court Rules.
Clause 21. Amendment of rule 42.01 (Definitions)
The definition of “conduct money” is deleted as it is now redundant. This is now dealt with in new
section 21 of the Evidence Act.
Clause 22. Amendment of rule 42.06 (Compliance with subpoena)
Reference to payment of “conduct money” is omitted from rule 42.06(1) as it is now redundant and replaced with a reference to appropriate arrangements under the new section 21 of the Evidence Act.
Clause 23. Amendment of rule 42.11 (Costs and expenses of compliance)
Reference to payment of “conduct money” is omitted from rule 42.11(3)(a) as it is now redundant and replaced with a reference to appropriate arrangements under the new section 21 of the Evidence Act.
Clause 24. Amendment of Schedule 1
Reference to payment of “conduct money” is omitted from Note 4 of Form 42A (subpoena) as it is now redundant and replaced with a reference to Witness Assistance, which is defined as appropriate arrangements under the new section 21 of the Evidence Act.
Reference to “Conduct money” in Form 42A, Note 13 is omitted as it is now redundant and replaced with a reference to Witness Assistance as mentioned in Note 4.
Division 5 – Amendment of Work Health Court Rules
Clause 25. Rules Amended
This Division amends the Work Health Court Rules.
Clause 26. Amendment of rule 19.01 (Definitions)
The definition of “conduct money” is deleted as it is now redundant. This is now dealt with in new section 21 of the Evidence Act.
Clause 27. Amendment of rule 19.08 (Conduct money, expense or loss)
Heading of rule 19.08 is replaced with the new heading “Expenses and losses incurred complying with summons”.
Reference to payment of “conduct money” is omitted from rules 19.08(1) and 19.08(2)(b) as it is now redundant and is replaced with a reference to appropriate arrangements under the new section 21 of the Evidence Act.
PART 4 – EXPIRY OF ACTClause 28. Expiry
This clause has been inserted by Parliamentary Counsel for the purpose of tidying up the statute books.
Clause 28 states that the Evidence and Other Legislation (Witness Assistance) Amendment Act 2006 will expire the day after it commences.
This clause is inserted because once the amendments made by the Act take effect, the Act serves no purpose and is then redundant.
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