Australia - Central Authority (Art. 2) and practical information
Central Authority(ies):
the Secretary to the Attorney-General's Department of the Commonwealth of Australia
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Contact details:
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| Address: | Private International and Commercial Law Section Australian Government Attorney-General's Department Robert Garran Offices 3-5 National Circuit BARTON ACT 2600 Australia |
| Telephone: | - |
| E-mail: | pil@ag.gov.au |
| General website: | www.ag.gov.au |
| Contact person: | - |
| Languages spoken by staff: | English |
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Practical Information
(The following information was provided by the relevant State authorities or was obtained from the replies to the Evidence Convention Questionnaires) |
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| Blocking statutes: | Yes, there are two blocking statutes: Section 42 of the Foreign Evidence Act 1994 (Cth). Section 7 of the Foreign Proceedings (Excess of Jurisdiction) Act 1984 (Cth). |
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Chapter I
(Letters of Requests) |
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| Additional Information Required due to Impact of Coronavirus (COVID-19): | The impact of COVID-19 on international postal delivery service is likely to result in significant delays for the processing of service or evidence requests by Australia’s Central Authority. To mitigate the potential for delays, we ask that the Requesting Authority provide (i) a contact name, (ii) phone number, and (iii) email address for the Requesting Authority for any new evidence requests sent to the Australian Central Authority. If these details are not provided, the Australian Central Authority’s ability to correspond with the Requesting authority will be limited, with timeframes for evidence requests likely to be significantly impacted. |
| Transmission of Letters of Requests: | Letters of Request are sent directly from a judicial authority in the requesting State to the Central Authority of the requested State. |
| Authority responsible for informing of the time and place of the execution of Letter of Request (Art. 7): | Responsibility for informing the requesting authority of the time and execution of a Letter of Request depends on the State or Territory in question. |
| Presence of judicial personnel at the execution of the Letter of Request (Art. 8): | Declaration of applicability. |
| Privileges and duties existing under the law of States other than the State of origin and the State of execution (Art. 11): | No declaration of applicability. |
| Translation requirements (Arts 4(2) and 33): | Accepts Letters of Requests written in or translated into English. |
| Costs relating to execution of the Letters of Request (Arts 14(2)(3) and 26): | Australia seeks reimbursement of costs under Art. 14(2). There are no constitutional limitations with regard to the reimbursement of fees and costs, in connection with the execution of Letters of Request, for the service of process necessary to compel the appearance of a person to give evidence, the costs of attendance of such persons, and the costs of any transcript of the evidence (Art. 26). |
| Time for execution: |
In light of the current COVID-19 situation, the taking of evidence under the Hague Evidence Convention will likely be subject to delays. For taking of evidence in Australia for foreign proceedings, the length of the delay will depend on the state or territory in which you are seeking to have evidence taken. In some circumstances, the relevant state or territory authority may seek to make alternative arrangements for taking of evidence by telephone or audio-visual link. Please contact pil@ag.gov.au for further information. Generally: |
| Art 23 pre-trial discovery of documents: | Letter of Request will not be executed (full exclusion) |
| Information about domestic rules on the taking of evidence: | 1. Commonwealth Legislation Evidence Act 1995 (Cth), Foreign Evidence Act 1994 (Cth), Foreign Proceedings (Excess of Jurisdiction) Act 1984 (Cth). 2. State/Territory Legislation: Evidence on Commission Act 1995 (NSW), Evidence (Miscellaneous Provisions) Act 1958 (VIC), Evidence Act 2008 (VIC), Evidence Act 1929 (SA), Evidence Act 1906 (WA), Evidence Act 2011 (ACT), Evidence Act 1977 (QLD), Evidence on Commission Act 1988 (QLD), Evidence Act 2001 (TAS), Evidence on Commission Act 2001 (TAS), Evidence Act (NT), Uniform Civil Procedure Rules 2005 (NSW), Supreme Court (General Civil Procedure) Rules 2015 (VIC), Supreme Court Act 1935 (SA), Supreme Court Civil Rules 2006 (SA), Rules of the Supreme Court 1971 (WA), Court Procedures Act 2004 (ACT), Court Procedures Rules 2006 (ACT), Uniform Civil Procedure Rules 1999 (QLD), Supreme Court Rules 2000 (TAS), Supreme Court Civil Procedure Act 1932 (TAS), Supreme Court Rules (NT). |
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Witness examination under Chapter I
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| Should Letters of Request include specific questions to be used during witness examination or only a list of matters to be addressed? | The Australian Attorney-General's Department encourages parties preparing a Letter of Request to include specific questions to ensure the Letter of Request provides sufficient detail to be executed and avoid uncertainty. In the New South Wales Supreme Court case of Pickles v Gratzon (2002) 55 NSWLR 533, the Court ruled that a Letter of Request need not disclose with reasonable particularity nature of evidence to be taken. However, a court will not execute a letter of request that is general and does not give sufficient detail to know what specific information is required. In practice, if counsel expect to appear in the Australian court to cross-examine the witness, it may be appropriate to provide a list of matters only. It should also be noted that to avoid uncertainty and facilitate the expeditious progress of requests seeking socio-economic information from a witness in Australia, the letter of request should provide: • the name and physical address by which the witness is able to be subpoenaed by the court; and • as noted above, the letter of request must provide sufficient detail to know what specific information is required from the witness. A court will not execute a letter of request that is general. |
| Is it a public or private hearing? | Generally, Chapter I hearings are public although the executing court may order that the hearing be closed. Examinations conducted other than by an officer of a Court are more likely to be conducted in private. |
| Do the judicial authorities "blue-pencil" Letters of Requests (i.e. rephrase, restructure and / or strike out objectionable questions or offensive wording so that a Letter of Request may be executed under the laws of the requested State)? | Yes. The response of the judicial authorities to an unclear or objectionable Letter of Request will depend on the request in question. The questions may be rephrased to rectify defaults in translation, and objectionable questions may be rephrased or omitted if the request is otherwise acceptable. Furthermore, the Attorney-General's Department regularly seeks clarification on requests from the foreign authorities prior to forwarding a Letter of Request to the relevant State or Territory. |
| Is the witness provided in advance with a copy of the questions / matters to be addressed as contained in the Letter of Request? | Generally, the witness is provided in advance with a copy of the questions / matters to be addressed. However, this may not occur where there is a special request not to provide the witness with a copy of the questions / matters prior to examination and the Court makes an order to this effect. |
| Are documents produced by the witness authenticated by the court? | There is no requirement under Australian law to authenticate documents produced by a witness in an Australian court. However, on request, some states may be able to provide the Requesting Court with a certificate issued by the Registrar of the Supreme Court that certifies that documents annexed to the certificate have been produced by the witness. |
| Is an oath generally administered to the witness? | Yes. Witnesses are given the choice between taking an oath or making an affirmation, the latter being devoid of any religious significance. |
| Can the witness be made subject to further examination and recall? | Yes. First Request may be re-invoked - if the Australian Court so orders, but it is more likely that a further request would be made. |
| Are there sanctions for non-appearance of witness? | Under domestic legislation, a court can issue a subpoena requiring a witness to appear before the court to execute a Letter of Request. Failure to comply with the subpoena without a lawful excuse is a contempt of court and the witness may be arrested or charged with contempt of court. |
| Must interpreters who assist with the witness examination be court-certified? | In Australia, the relevant court must be satisfied that the interpreter has the qualifications necessary for the task. In addition, interpreters are required to take an oath or make an affirmation before the court. |
| How is the testimony transcribed? | In general, testimony is recorded by electronic means and then manually transcribed. Court Reporters can also use computerised stenograph machines to translate shorthand outlines into transcript. The document is then certified by the examiner as being a true and correct transcript of the evidence taken. |
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Chapter II
(Taking of evidence by diplomatic officers, consular agents and commissioners) |
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| Article 15 | Applicable. See Competent Authority. |
| Article 16 | Applicable. See Competent Authority. |
| Article 17 | Applicable. No Competent Authority has been designated. However, in practice such requests are considered by the Secretary of the Commonwealth Attorney-General's Department, consistent with the process for Art 15 and 16. |
| Article 18 | No declaration of applicability (i.e., a diplomatic officer, consular agent or commissioner may not apply for appropriate assistance to obtain evidence by compulsion). |
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Taking of evidence by video-links
(under either chapter) |
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Chapter I
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| Are there legal obstacles to the use of video links? | No. There appears to be some uncertainty as to whether the procedures under the Hague Evidence Convention provide for the ability to take video-link evidence. Australia considers that the Hague Convention makes no specific provision for the taking of evidence by video-link. Notwithstanding, Australia considers that there are no legal obstacles to the usage of modern technologies under the Convention. Australia further notes that the private international law issues that may arise as a result of video-link evidence are not all addressed by the Convention. |
| Technology used: | Generally, Australian courts may use a broad range of technologies, depending on the case in question, to execute a Letter of Request using video-link. For example, the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) defines video-link as "facilities that enable audio and visual communication between persons at different places" and enables the New South Wales Supreme Court to use any technology that falls within that definition to take video-link evidence.
Requests for video-links are treated by the State of New South Wales as being requests under Article 9 of the Convention for use of a special procedure and, accordingly, the New South Wales authorities seek to be reimbursed for costs occasioned by the use of the video-link under Article 14. A special order from the Supreme Court of New South Wales must be obtained for a video-link and that as such use of a video-link cannot be guaranteed. |
| Level of interpretation required: | Professional accredited interpreters required. |
| Simultaneous or in sequence interpretation: | No preference has been indicated. |
| Interpretation required in which jurisdiction? | The requested State. |
| Who pays for the interpretation? | If an interpreter is located in the other State, that State may apportion the costs of the service as it deems appropriate. For an interpreter located in Australia, the Australian authority will seek reimbursement from the foreign authority for the costs of the service (in accordance with Art 14) - the foreign authority may apportion the costs as it deems appropriate. |
| How would a request for evidence be handled if witness not willing? | Under domestic legislation Australian courts can compel witnesses to give evidence using video-link technology. For example, the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) provides that a New South Wales court may, on its own motion or on the application of a party, direct that a party (whether or not a party to the proceeding) give evidence or make a submission to the court by video-link. Where the witness opposes the making of such a direction, the court must not make the direction unless the party making the application satisfies the court that it is in the interests of the administration of justice for the court to do so. However, Australia will not compel a person to appear via video-link in a foreign court. In such situations, the evidence would need to be taken by the Australian court through the standard Letter of Request process - however, the court might allow video link to be used for some other purpose, such as to allow counsel or parties to appear at the hearing - this would be decided on a case by case basis. |
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Chapter II
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| Are there legal obstacles to the use of video links? | No. Australia considers that Chapter II of the Hague Convention makes no specific provision for the taking of evidence by video-link. Notwithstanding, Australia considers that there are no legal obstacles to the usage of modern technologies under the Convention. Australia further notes that the private international law issues that may arise as a result of video-link evidence are not all addressed by the Convention. |
| Technology used: | None of the requests received by Australia under Chapter II have requested the use of video link technology. |
| Level of interpretation required: | Same as above. |
| Simultaneous or in sequence interpretation: | Same as above. |
| Interpretation required in which jurisdiction? | Same as above. |
| Who pays for the interpretation? | Same as above. |
| Bilateral or multilateral agreements |
Bilateral Conventions on judicial co-operation: Republic of Korea [2000] ATS 5 and Thailand [1998] ATS 18. The Conventions entered between the United Kingdom and the following States are also applicable to Australia: Austria [1933] (ATS 1), Belgium [1928] ATS 1, Denmark [1935] ATS 2, Estonia [1933] ATS 3, Finland [1935] ATS 3, France [1928] ATS 2, Germany [1933] ATS 4, Greece [1938] ATS 1, Hungary [1937] ATS 1, Iraq [1937] ATS 2, Italy [1933] ATS 5, Lithuania [1937] ATS 3, Netherlands [1935] ATS 4, Norway [1933] ATS 6, Poland [1933] ATS 7, Portugal [1933] ATS 8, Spain [1933] ATS 9, Sweden [1933] ATS 10, Turkey [1935] ATS 5. |
| Useful links: | http://www.ag.gov.au/pil (Attorney-General's Department website - Private international law) |
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