Bills Digest no. 85 2009–10
Trans-Tasman Proceedings (Transitional and Consequential
Provisions) 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: 25 November
2009
House: House of Representatives
Portfolio: Attorney-General
Commencement:
Unless otherwise stated,
most provisions will commence at the time that section 3 of the
proposed Trans-Tasman Proceedings Act 2009 commences
namely, on a day to be fixed by proclamation on or after the entry
into force of the relevant Agreement between Australia and New
Zealand, or six months and one day after the Agreement enters into
force (whichever occurs first).
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 Trans-Tasman
Proceedings (Transitional and Consequential Provisions) Bill 2009
(the Transitional and Consequential Bill) is to address
transitional and consequential matters relating to the Trans-Tasman
Proceedings Bill 2009 (the Principal Bill).
In doing so, the
Transitional and Consequential Bill:
- repeals the Evidence and Procedure (New Zealand) Act
1994 (the EPNZ Act), and
- amends various other Acts, including the Federal Court of
Australia Act 1976 (the Federal Court Act).
The Transitional and Consequential Bill relates to the Principal
Bill. Therefore, for background information, including the policy
commitment behind both Bills, please refer to the Bills Digest for
the Principal Bill.[1]
On 27 November 2009, the Senate Standing Committee on the
Selection of Bills resolved to not refer the Transitional and
Consequential Bill to a parliamentary committee.
As at 21 January 2010, the Standing Committee on the Scrutiny of
Bills has not yet released any comments on the Transitional and
Consequential Bill.
Comments regarding the general principles underlying the
provisions in the Principal Bill have been addressed in the Main
Provisions section of the Digest relating to the Principal
Bill.[2]
According to the Government, the proposed measures in the
Transitional and Consequential Bill will not have any significant
financial impact.[3]
The Transitional and Consequential Bill has three Schedules.
Schedule 1 contains provisions relating to how
Parts 2 9 of the proposed Trans-Tasman Proceedings Act
2009 (the Principal Act) would apply.
Item 1 proposes that Part 2 of the Principal
Act would apply to:
- civil proceedings commencing on or after the day on which
section 3 of the Principal Act commences (commencement), or
- civil proceedings commencing before commencement, if not all of
the initiating documents for the proceedings have been served
before commencement.[4]
Item 2 proposes that Part 3 of the Principal
Act would apply to civil proceedings commenced in an Australian
court on or after commencement.
Item 3 proposes that Part 4 of the Principal
Act would apply to civil proceedings commenced or to be commenced
in a New Zealand court on or after commencement.
Item 4 proposes that Part 5 of the Principal
Act would generally apply to subpoenas issued before, on or after
commencement. However, if a court had given leave under section 9
of the EPNZ Act for the subpoena to be served in New Zealand before
commencement, Division 2 of Part 5 of the Principal Act would not
apply to the subpoena (see also item 2 of
Schedule 2 below).
Item 5 proposes that Part 6 of the Principal
Act would generally apply to remote appearances made on or after
commencement, irrespective of when the proceedings (in which the
remote appearance is made) commenced. However:
- if the purpose of the remote appearance is to give evidence or
make submissions, and
- before commencement, the court directed that the evidence be
given or submissions be made by video link or by telephone from New
Zealand under section 25 of the EPNZ Act,
Division 2 of Part 6 of the Principal Act would not apply to
that remote appearance (see also item 2 of
Schedule 2 below).
Item 6 proposes that Part 7 of the Principal
Act would apply to judgments given on or after commencement,
irrespective of when the proceedings in which the judgment was
given commenced.
Item 7 proposes that Part 8 of the Principal
Act would apply to proceedings commencing on or after
commencement.
Item 8 proposes that Part 9 of the Principal
Act would apply to proceedings commencing before, on or after
commencement.
Part 1 of Schedule 2 comprises
the repeal of the EPNZ Act under item 1 and
consequential savings provisions under item 2.
Item 2 proposes that despite the proposed
repeal of the EPNZ Act, the EPNZ Act would continue to apply in
specified circumstances, including:
- if a court had given leave under section 9 of the EPNZ Act for
a subpoena to be served in New Zealand before commencement, the
EPNZ Act (as in force immediately before its repeal) would continue
to apply in relation to that subpoena (see also item
4 of Schedule 1 above), and
- if before commencement, a court directed that evidence be taken
or submissions be made by video link or by telephone from New
Zealand under section 25 of the EPNZ Act, the EPNZ Act (as in force
immediately before its repeal) would continue to apply in relation
to the taking of that evidence or making of those submissions (see
also item 5 of Schedule 1
above).
Part 2 of Schedule 2 contains
provisions proposing amendments to the Federal Court Act
consequential to the commencement of the Principal Act.
In particular, item 4 proposes to repeal Part
IIIA of the Federal Court Act, as provisions regulating
trans-Tasman market proceedings would have been relocated to Part 8
of the Principal Act.[5]
Items 3 and 5 8 propose to
amend various provisions of the Federal Court Act as a consequence
of the proposed repeal of both the EPNZ Act and Part IIIA of the
Federal Court Act.
Item 9 proposes savings provisions relating to
amendments proposed in Part 2 of Schedule
2. These savings provisions are:
- Part IIIA of the Federal Court Act (as in force immediately
before its repeal) would continue to apply to proceedings commenced
before commencement note, however, that Division 5 of Part IIIA
would not apply in relation to a judgment given on or after
commencement
- court rules made for the purposes of paragraphs 59(2)(y) and
59(2)(za) (ze) of the Federal Court Act (see item
8 in Schedule 2 Part 2 above) would
continue to apply in relation to proceedings commenced before
commencement, and
- regulations made under section 60 of the Federal Court Act, for
the purposes of Part IIIA of that Act, would continue to apply in
relation to proceedings commenced before commencement.
Part 3 of Schedule 2 contains
provisions proposing amendments to the following Acts:
- Defence Force Discipline Act 1982
- Family Law Act 1975
- Federal Magistrates Act 1999
- Foreign Judgments Act 1991
- Law and Justice Legislation Amendment (Identity Crimes and
Other Measures) Act 2009 (on the basis that the Law and
Justice Legislation Amendment (Identity Crimes and Other Measures)
Bill 2008 (Identity Crimes and Other Measures Bill) is passed and
assented to)
- Service and Execution of Process Act 1992, and
- Trans-Tasman Proceedings Act 2009 (on the basis that
the Principal Bill is passed and assented to).[6]
In general, these proposed amendments are consequential to the
proposed repeal of the EPNZ Act and the commencement of the
Principal Act.
In particular, items 21 and 22
propose to amend paragraph 5(8)(d) and
subsection 5(10) of the Foreign Judgments Act
1991 by omitting New Zealand from the application of Part 2
(Reciprocal Enforcement of Judgments) of that Act note that, under
Part 7 of the Principal Bill, registrable New Zealand judgments
would be recognised and enforced in Australia. However, under
item 23, paragraph 5(8)(d) and
subsection 5(10) of the Foreign Judgments Act (as
in force immediately before their repeal) would continue to apply
to judgments given before commencement.
Note that items 27 and 28
propose to amend subclauses 62(2) and
87(2) of the Principal Act by inserting the word
federal before judicial proceedings . These proposed provisions
currently state that where a New Zealand court or tribunal
(clause 62) or the High Court of New Zealand
sitting in Australia (clause 87) receives evidence
on oath or affirmation, such evidence is, for the purposes of
section 35 of the Crimes Act 1914 (Aust), testimony given
in a judicial proceeding.[7]
The Government states that the proposed amendments to the
Principal Act seek to be consistent with amendments to the
administration of justice offences in the Crimes Act proposed by
the Identity Crimes and Other Measures Bill and would only commence
if item 22 of Schedule 2 of the Identity Crimes and Other Measures
Bill commences.[8]
Given this pre-requisite, arguably, it would be more appropriate
for the amendments to be contained in the Transitional and
Consequential Bill rather than the Principal Bill.
Concluding comments
Given the various commencement proposals for the Principal Bill,
it would be necessary to ensure that transition to the new
trans-Tasman regime is effective and flexible. It appears that the
provisions proposed in the Transitional and Consequential Bill
would achieve this.
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Sharon Scully
22 January 2010
Bills Digest Service
Parliamentary Library
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