Bills Digest no. 120 2008–09
Law and Justice (Cross Border and Other Amendments) Bill
2009
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage history
Purpose
Background
Financial implications
Main provisions
Concluding comments
Contact officer & copyright details
Passage history
Date
introduced: 19 March
2009
House: House of Representatives
Portfolio: Attorney-General
Commencement:
Royal
Assent
Links: The
relevant links to the Bill, Explanatory Memorandum and second
reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
at http://www.comlaw.gov.au/.
The purpose of the Law and
Justice (Cross Border and Other Amendments) Bill 2009 is to amend
existing legislation that facilitates law enforcement, judicial
procedures and dispute resolution across more than one
jurisdiction. Within this broad cross-jurisdiction theme, each of
the three schedules of the Bill deal with distinct issues. Notably,
Schedule 1 will facilitate the operation of the Cross Border
Justice Scheme to the Ngaanyatjarra Pitjantjatjara Yankunytjatjara
(NPY) Aboriginal lands of the central desert region of Australia to
enable judicial officers, police and other officials to deal with
offenders from any of the participating jurisdictions (Western
Australia, South Australia and the Northern Territory).
The Bill makes a number of amendments that are intended to make
legal processes more flexible, cheaper and less complicated when
more than one jurisdiction is involved. The Bill also amends
existing legislation to confirm the capacity of a prisoner to give
evidence by audiovisual link before an interstate court, authority,
tribunal or person.
An initiative of a working group of the Standing Committee of
Attorneys-General comprising Western Australia, South Australia and
the Northern Territory has been established to streamline the
delivery of justice services and improve public safety in cross
border regions in those jurisdictions. This initiative was
developed and planned since 2003 and was agreed to in 2007, before
the Rudd Government was elected. It has been a cooperative
arrangement between the jurisdictions. At the time of agreement,
South Australian Premier Mike Rann said:
Anecdotal reports from police suggest the
investigation of many minor offences is not pursued owing to the
expense and time obtaining an extradition warrant to a court
authorised to hear the charge. If that is true then it is not in
the interests of justice and needs to be addressed.[1]
Inspector Ashley Gordon from the South Australian Police has
recorded that:
The concept was initially modelled on the
Ngaanyatjarra Pitjanjatjara Yankunytjatjara Women s Council
(NPYWC), a non-Government organisation who provides support and
advocacy services for Aboriginal women and had already been
operating under a tri-State model in the area. They had achieved
numerous successes by operating as one organisation across the
border of Western Australia, Northern Territory and South
Australia, recognising that these borders mean little to the local
Anangu people and that State provided services were hampered by
jurisdictional boundaries.[2]
Explicitly, the initiative, known as the Cross Border Justice
Scheme, has a number of strategic objectives including the
development and implementation of legislation that allows police,
courts and corrections to operate in a multi-jurisdictional
environment, free of the constraints of State borders.
The Ngaanyatjarra Pitjantjatjara Yankunytjatjara (NPY)
Aboriginal lands of the central desert region of Australia cover a
vast area of some 450,000 square kilometres.[3] This is where the Cross Border Justice
Scheme will operate. Within this area lie the State borders of
Western Australia, South Australia and the Northern Territory. See
the map on the following page for a visual representation of the
area.[4]
Because of the frequently moving lifestyle of the local people
in the NPY lands, as Inspector Gordon notes above, law enforcement
and other authorities in Western Australia, South Australia and the
Northern Territory have been hindered by varying protocols and
legislation.
The Cross Border Justice Scheme will be a service to
approximately ten thousand people living on four hundred thousand
square kilometres of the remotest part of Australian land commonly
referred to as the Pitlands.[5] The Cross Border Justice Scheme is bordered by the
administrative centres of Alice Springs, Kalgoorlie in Western
Australia and Port Augusta in South Australia. It includes the
world recognised Uluru National Park.[6]
Legislation at the State and Territory level is required to
facilitate the operation of this Scheme:
- Western Australia passed the Cross Border Justice Act
2008[7];
- South Australia has introduced the Cross Border Justice Bill
2009[8];
- The Northern Territory has passed the Cross Border Justice
Act 2009.[9]
On 19 March 2009, the
Senate referred this Bill to the Senate Legal and Constitutional
Affairs Committee for inquiry and report by 7 May 2009. At the date
of publication of this Digest, there have been no published
submissions to the Committee. Submissions closed on 9 April 2009.
Details of the Committee s Inquiry can be found
here.
The Explanatory Memorandum notes that the Bill will not have any
significant financial impact.
The Cross Border Justice Scheme might be used as a test case for
other jurisdiction harmonisation projects. In 2006, the
Attorney-General s Department made a submission to the Standing
Committee on Legal and Constitutional Affairs Inquiry into
Harmonisation of Legal Systems Relating to Trade and Commerce on
the issue. In that submission, the Department discusses the
Service and Execution of Process Act 1992 (SEPA) and
stated:
Other possible amendments to improve the
efficiency and effectiveness of SEPA that are currently under
consideration include:
Amendment to Part 7 of SEPA, which concerns the
enforcement of fines imposed by courts of summary jurisdiction to
eliminate existing inconsistencies with State bail legislation.
Amendments to SEPA to accommodate the
interstate taking of evidence by audio or video link under State
and Territory legislation [Note: this Bill makes these
amendments]
Amendments to allow for warrants issued by
parole boards and similar bodies to be executed interstate, and
Amendments in relation to applications for
summary judgment against interstate defendants.[10]
There is still work to do on the harmonisation of jurisdictional
justice matters and it is not clear how much progress the Standing
Committee of Attorneys-General has made in the consideration of
these possible amendments.
The Trans-Tasman Court Proceedings and Regulatory Enforcement
Treaty was signed by Australia and New Zealand in July 2008. This
Bill will implement some measures that are included in the
Treaty.
This Bill will amend the range of proceedings covered by the
cooperative scheme established between Australia and New Zealand
for the service of subpoenas across the Tasman in all civil
proceedings, including family law proceedings.
Items 1 and 2 of Schedule 1 of the Bill will
amend the Service and Execution of Process Act 1992.
While the Cross Border Justice 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.[11]
Item 1 will insert a new definition of
cross-border laws in subsection 3(1) of the SEPA. Proposed
paragraph 3(1)(a) will define cross-border laws as the
cross border laws of a participating jurisdiction, within the
meaning of the Cross-Border Justice Act 2008 (WA).
Item 2 will make it clear that the cross-border
laws that are unaffected by SEPA will continue to operate. Where
there is a direct inconsistency between SEPA and the cross border
laws, proposed subsection 8(3A) will operate to
disapply SEPA[12].
A new definition of audio link is inserted into SEPA by
item 1. The broad definition ensures consistency
with the range of approaches taken under State and Territory
legislation.
Similarly, item 2 inserts a new definition of
audiovisual link into SEPA.
Consequential amendments replacing references in the SEPA to
video link or telephone with audio link or audiovisual link are
listed in items 3, 4, 5, 7, 9, 10, 11, 12, 14, 15, 17, 18,
19, 20 and 23. These amendments will explicitly allow
prisoners to give evidence by audio or audiovisual link in
proceedings interstate.
This Schedule will make amendments to the Evidence and
Procedure (New Zealand) Act 1994. This Act provides for
co-operation between Australia and New Zealand in relation to the
service and enforcement of subpoenas; the taking of evidence by the
courts, by video link or telephone; the taking of judicial notice
of public and official acts and documents.
Item 1 creates a new definition of excluded
family proceedings into the Evidence and Procedure (New
Zealand) Act 1994 (EPNZ Act). The importance of this
provision is that it explicitly excludes any proceeding made under
the Convention on the Civil Aspects of International Child
Abduction. The provision notes that this Convention was signed at
The Hague on 25 October 1980. Without this exclusion, the
Convention could not operate efficiently as it is intended. The
Convention was drafted to:
protect children internationally from the
harmful effects of their wrongful removal or retention and to
establish procedures to ensure their prompt return to the State of
their habitual residence, as well as to secure protection for
rights of access.[13]
The Convention requires that Contracting States shall act
expeditiously in all proceedings seeking the return of children
[14]. It seems
appropriate then, that this Bill excludes those proceedings to
ensure the Convention can achieve its goals. This exclusion also
exists in New Zealand s corresponding legislation.
The definition in proposed subsection 3(1) also
excludes those people whose matters are dealt with by State and
Territory guardianship boards. It would be outside the scope of the
SEPA to facilitate the interstate service of subpoenas issues by
State and Territory guardianship bodies. Therefore, this amendment
keeps the procedures consistent as it would be undesirable (and
unintended) to be able to serve subpoenas in New Zealand but not
between states and territories in Australia.
The remaining items amend the EPNZ Act to remove the exclusion
that currently applies to the service of subpoenas relating to
family law proceedings. The items are technical in nature.
Item 3 will amend section 7 to expand the
application of Part 2 of the EPNZ Act to family proceedings other
than excluded family proceedings . Item 4 will
make consequential amendment to subsection 7(b). Item
6 will provide that the changes will apply to proceedings
that are commenced on or after the commencement of these
provisions. Item 7 will make a technical amendment
to subsection 25(3) of the EPNZ Act regarding the taking of
evidence within the permitted powers under New Zealand law.
Concluding comments
This Bill makes necessary amendments to the existing service and
evidence rules of procedure where a matter crosses jurisdictional
borders. As mentioned earlier, the state-based legislative regime
introduced to facilitate the Cross Border Justice Scheme might be
used as a model for similar future harmonisation projects and so
the success of the Cross Border Justice Scheme should be monitored.
To date, this Bill has not attracted much media scrutiny. The
necessary State legislation for the South Australian, Western
Australian and Northern Territory jurisdictions has been introduced
or passed. New Zealand has also already made the necessary
corresponding changes to its legislation.
Members, Senators and Parliamentary staff can obtain further
information from the Parliamentary Library on (02) 6277
2430.
[5]. Coates, R. Towards Mutual Benefit The
Inquiry into Customary Law in the Northern Territory of Australia
and other Initiatives , Northern Territory Department of Justice,
p. 11. This paper was presented in 2003 by Richard Coates at the
Australasian Law Reform Agencies Conference, Wellington, April 2004
and is available electronically
here.
[6]. ibid.
[7]. Details of the Bill can be found at the
Western Australian Department of Premier and Cabinet s
Parliamentary website,
here.
[8]. The text of the Bill can be found at the
South Australian Government s website,
here.
[9]. The text of the
Northern Territory Act can be found
here.
Monica Biddington
28 March 2009
Bills Digest Service
Parliamentary Library
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