Evidence on Commission Act 2001

Definitions and jurisdictional delineations in section 3 underpin the Act’s concepts. The Act distinguishes between evidence obtained in Tasmania for proceedings elsewhere (Part 2) and examination of witnesses outside Tasmania for Tasmanian proceedings (Part 3). Key statutory terms are defined and carry different reach depending on the part of the Act invoked.

Request and requesting court: A request is any commission, order or other process issued by or on behalf of a requesting court (s 3). The Act contemplates requests originating from courts or tribunals exercising jurisdiction outside the State; the requesting court is the entity by or on whose behalf the request is made (s 3 definitions). Part 2 expressly requires an application to the Tasmanian Supreme Court to be made in pursuance of such a request (s 4(1)(a)).

Australia and place outside the State: The Act defines “Australia” differently for Parts 2 and 3. For Part 2, “Australia” includes Territories of the Commonwealth for which provision is made by Commonwealth Parliament (s 3). For Part 3, “Australia” is expanded to include New Zealand (s 3). The phrase “place outside the State” explicitly covers places both within and outside Australia (s 3). These definitional choices affect the availability of certain powers, for example the limitation in s 4(2) that Part 2 does not apply to criminal matters unless the requesting court is in Australia or New Zealand.

Judicial authority and inferior courts: “Judicial authority” denotes courts in other places that have power to give effect to a letter of request, or a court or person prescribed as a judicial authority (s 3). The Act also defines “inferior court” by exclusion, meaning any State court other than one when exercising federal jurisdiction or the Supreme Court (s 3). This matters for Part 3’s provisions allowing the Supreme Court to act to assist inferior courts (s 8).

Mechanisms for obtaining evidence: The Act identifies a menu of coercive and non-coercive measures the Supreme Court may order when giving effect to a request (s 5(3)). These include oral or written examinations of witnesses, production of documents, inspection and custody of property, sampling, experiments, medical examination, and taking and testing blood. But the Act restricts documentary compulsion: the Court must specify particular documents to be produced and cannot require general disclosure of what documents exist (s 5(6)). Witnesses compelled to attend are entitled to the same conduct money and payment for expenses and loss of time as witnesses in Supreme Court proceedings (s 5(7)).

Privilege regime: Section 6 ensures persons are not compelled to give evidence they could not be compelled to give in similar proceedings in Tasmania or in the place where the requesting court exercises jurisdiction, subject to procedural conditions. A claim of exemption based on the other place’s law is not effective under s 6(1)(b) unless it is supported by a statement in the request or conceded by the applicant (s 6(2)). If unsupported and not conceded, the person may be required to give evidence but the evidence is not to be transmitted if the requesting court, on referral, upholds the claim (s 6(3)).

Examination outside the State: Part 3 allows the Tasmanian Supreme Court to order examinations of persons outside Tasmania in any civil or criminal proceeding before it, where it appears in the interests of justice and on application of a party (s 7(2)). The Court can appoint a judge, officer or other person to sit for the examination, issue commissions, and send letters of request to overseas judicial authorities (s 7(2)(a)-(c)). The Court may give directions about procedure and may permit tendering of examination evidence in proceedings on terms it considers fit (s 7(4)-(6)), but it may also exclude such evidence in the interests of justice even if otherwise admissible (s 7(8)).

Procedural governance: The Act contemplates Rules of Court under the Supreme Court Civil Procedure Act 1932 to regulate applications under s 4, the making of orders under s 5, the practice for references under s 6(3), matters necessary to carry out Part 3 and practice in proceedings relating to orders under s 7 or s 8 (s 12). Regulations may also be made for practice and procedure in proceedings for orders under s 7 or s 8 (s 13). Administrative responsibility for the Act is, until otherwise provided by the Administrative Arrangements Act 1990, assigned to the Minister for Justice and Industrial Relations and the Department of Justice and Industrial Relations (s 14).

Criminal liability for false statements: The Act makes it a crime under the Criminal Code for a person who, in giving testimony otherwise than on oath or affirmation pursuant to an order under s 5, makes a materially false statement they know to be false or do not believe to be true (s 11). This targets unsworn testimony given under commission orders.

Taken together, the Act provides a judicially supervised, discretionary, court-centric mechanism for cross-border evidence gathering with defined procedural limits, privilege safeguards that depend on documentary support or concession, and a rules and regulation-making pathway to supply procedural detail.

The Act places responsibilities and confers powers across several clearly identifiable actors. Each actor faces different decisions or burdens under the text.

Courts and judicial officers: The Supreme Court of Tasmania is the central decision-maker and implementing authority under the Act. It receives applications under Part 2 (s 4) and Part 3 (s 7), makes orders to give effect to requests (s 5), and may issue commissions or letters of request (s 7(2)). When exercising the Part 3 powers, the Act treats “Supreme Court” as that Court except when exercising federal jurisdiction (s 7(1)), so federal jurisdictional contexts may be governed differently. Inferior courts are affected because the Supreme Court may, on application of a party to a proceeding in an inferior court, exercise the same powers for that inferior court’s proceeding (s 8(1)). The Act also contemplates interaction with judicial authorities outside Tasmania, including courts in other Australian States, Territories, New Zealand and courts prescribed as judicial authorities for the place (s 3).

Parties to proceedings and applicants: A party to a proceeding in the Supreme Court or in an inferior court initiates the use of Part 3 powers by applying for examination of a person outside the State (s 7(2); s 8(1)). A party seeking the Supreme Court’s assistance to obtain evidence in Tasmania under Part 2 must apply and satisfy the statutory gateway for a request issued by or on behalf of a court outside Tasmania (s 4(1)(a)-(b)). Applicants have the practical burden of ensuring requests and applications meet the evidentiary and formal conditions in the Act and any Rules of Court (s 12).

Witnesses and persons from whom evidence is sought: Individuals and entities in Tasmania may be required by order to take steps to give evidence, produce documents or permit inspection or sampling as specified in s 5(2)-(3). Those required to attend are entitled to conduct money and payment for expenses and loss of time equivalent to a witness in Supreme Court proceedings (s 5(7)). Section 6 recognises privilege protections: a person cannot be compelled to give evidence they could not be compelled to give in similar proceedings in Tasmania or in the place exercising jurisdiction, subject to the procedural conditions in s 6(2). Where a claim of privilege is unsupported by the request and not conceded, the person may be required to give evidence, although transmission to the requesting court is withheld if the requesting court upholds the claim on referral (s 6(3)).

Requesting courts and judicial authorities in other places: Courts outside Tasmania that issue commissions, letters of request, or other processes are “requesting courts” under s 3 and are the originators of Part 2 applications (s 4(1)(a)). For requests involving criminal matters, the Act restricts Part 2 to requests from Australian or New Zealand courts (s 4(2)). For letters of request issued under Part 3, the Supreme Court can send them to “judicial authorities” in other places, defined to include prescribed persons or courts with relevant jurisdiction (s 3; s 7(2)(c)).

Legal practitioners and representatives: Section 7(5)(b) permits the Supreme Court, when ordering letters of request, to request the attendance and participation of legal representatives of the parties in the examination. Legal practitioners therefore play a role in applications, in the conduct of examinations, and in protecting client privilege.

Government departments and the Minister: Until altered under the Administrative Arrangements Act 1990, administration of the Act is assigned to the Minister for Justice and Industrial Relations and the Department of Justice and Industrial Relations (s 14). That assignment creates an administrative contact point for practitioners and requesting courts until an order changes responsibility.

Regulators of procedure: The Supreme Court Civil Procedure Act 1932 is engaged to enable Rules of Court to be made about applications under s 4, orders under s 5, practice for references under s 6(3), and practice for Part 3 orders (s 12). The Governor may also make regulations for practice and procedure in proceedings for orders under s 7 or s 8 (s 13). Those who interact with the Act must therefore monitor rules and regulations which will supply procedural detail and may modify practical burdens.

Third parties and property holders: Orders under s 5(3)(c)-(d) permit inspection, photographing, preservation, custody or detention of property and taking samples or experiments on property. Owners or custodians of such property therefore face potential obligations and interference warranted by an order of the Supreme Court.

In short, the Act affects courts and judicial officers, parties and applicants, witnesses and custodians of documents and property, requesting courts and foreign judicial authorities, legal representatives, and the departmental administration responsible for the Act. Who pays in practice will include applicants who must prepare requests and fund the process, and the requesting courts and parties who may incur costs for cross-border procedures; witnesses are guaranteed conduct money as per s 5(7), and the Department and courts will incur administrative burdens in processing applications and making orders.

The Act creates a set of duties, discretions and rights centring on the Supreme Court’s power to make orders to obtain evidence, the obligations of persons subject to those orders, and safeguards available to witnesses.

Supreme Court duties and discretions: The Supreme Court may make orders to give effect to a foreign request under Part 2 if satisfied the statutory gateway in s 4(1) is met. The Court has broad discretion to make provision “as may appear to it to be appropriate” (s 5(1)), including the power to require specified persons to take steps (s 5(2)). The Court’s orders can include a non-exhaustive catalogue of measures (s 5(3)(a)-(f)). In Part 3, the Court may order examinations of persons outside the State, issue commissions or letters of request on application by a party and where “in the interests of justice” (s 7(2)). When exercising that discretion, the Court must have regard to whether the person is willing or able to come to Tasmania, whether the evidence is material, and whether justice is better served by granting or refusing the order (s 7(3)). The Court may give directions regarding procedure, time, place and manner of examinations (s 7(4)) and may permit tender of examination evidence on terms (s 7(6)). It also retains power to exclude examination evidence in the interests of justice (s 7(8)) and, separately, the Act does not affect the power of a criminal court to exclude evidence under its ordinary discretion (s 9).

Obligations of persons required to act: A person required by an order under s 5 may be required to take any steps the Court considers appropriate (s 5(2)). Those steps include attending to give testimony, producing specified documents, permitting inspections, submitting to medical examinations and providing blood samples (s 5(3)). The Act places limits: a person is not to be required to state what documents relevant to the proceedings are or to produce documents other than particular documents specified in the order that the Court believes are or likely to be in the person’s possession (s 5(6)). A person compelled to attend is entitled to the same conduct money and payment for expenses and loss of time as a witness in Supreme Court proceedings (s 5(7)).

Witness privilege and rights: Section 6 protects persons from being compelled to give evidence they could not be compelled to give in similar proceedings in Tasmania or in the place exercising the requesting court’s jurisdiction (s 6(1)(a)-(b)). However, the protection for the law of the other place depends on procedural support: the claim must be supported by a statement in the request or conceded by the applicant (s 6(2)). If a claim is unsupported and not conceded, the person may be required to give the evidence, but the Court must not transmit the evidence to the requesting court if that court, upon referral, upholds the claim (s 6(3)). Giving evidence includes answering questions and producing documents; transmission of evidence given is thus covered (s 6(4)).

Rights of parties and legal representatives: In letters of request under Part 3, the Supreme Court may include a request as to the examination, cross-examination or re-examination of the person and the attendance of the legal representative of each party and their participation in the examination in appropriate circumstances (s 7(5)(a)-(b)). Parties therefore have the procedural right to seek court directions permitting counsel to participate in overseas examinations. The Court may also permit tendering of examination records or evidence taken under order on terms it sees fit (s 7(6)), although the tendered evidence may be excluded if the witness is in Tasmania and able to attend trial or if the evidence would have been inadmissible at the hearing (s 7(7)).

Protection against false unsworn testimony: Section 11 makes a person guilty of a crime under the Criminal Code if, when giving testimony otherwise than on oath or affirmation pursuant to an order under s 5, they make a materially false statement knowingly false or not believed to be true (s 11). This creates a legal duty to tell the truth when giving unsworn testimony under a Part 2 order and imposes a potential criminal sanction for falsehood.

Procedural governance duties: The Act enables Rules of Court to prescribe the manner of applications under s 4, the circumstances for s 5 orders, the mechanics for references under s 6(3) and matters necessary for carrying out Part 3 (s 12). The Governor may make regulations for practice and procedure in proceedings for orders under s 7 or s 8 (s 13). Those instruments will impose duties on practitioners and litigants to conform to court-prescribed procedures.

Administrative duties: Until prescribed otherwise under the Administrative Arrangements Act 1990, the administration of the Act is assigned to the Minister for Justice and Industrial Relations and the Department of Justice and Industrial Relations (s 14). That administrative assignment carries duties to manage procedures, records and departmental liaison for requests and orders made under the Act.

Collectively, the Act allocates discretion to courts, imposes conditional obligations on persons and witnesses, and creates procedural and criminal duties intended to secure truthful, procedurally regular cross-border evidence-gathering subject to specified privilege protections and the Court’s overarching interest of justice standard.

The Act contains limited express penal provisions and otherwise relies on the Supreme Court’s powers to supervise and enforce compliance with orders, together with the existing enforcement mechanisms that courts possess.

Criminal offence for false unsworn testimony: The principal explicit penal provision is section 11. It makes a person guilty of a crime and liable to punishment on indictment under the Criminal Code if, in giving any testimony otherwise than on oath or affirmation pursuant to an order under s 5, the person makes a statement that they know to be false in a material particular, or that is false in a material particular and which the person does not believe to be true (s 11). This provision ties criminal liability to unsworn testimony given pursuant to a s 5 order. The Act does not specify the penalty quantum; it defers to the Criminal Code’s sentencing framework by providing liability on indictment under that Code (s 11). Practitioners must therefore consult the Criminal Code for sentencing details when assessing risk.

Court enforcement powers and compulsion: The Act enables the Supreme Court to require specified persons to take steps the Court considers appropriate to give effect to a request (s 5(2)). While the Act does not list statutory fines or administrative penalties for non-compliance with s 5 orders, usual enforcement mechanisms available to the Supreme Court,such as contempt proceedings, warrants for arrest, or other coercive judicial measures used to secure compliance with court orders,would be the practical enforcement route. The Act itself does not enumerate these mechanisms, but by vesting the power to make orders and require steps in the Supreme Court (s 5(1)-(2)), it places the enforcement function within the Court’s existing jurisdictional toolkit.

Limits to compulsion and evidential exclusion as a check: The Act imposes limits on what can be required: it forbids requiring a person to state what documents relevant to proceedings are or to produce documents other than particular documents specified in the order and appearing to the Court to be, or likely to be, in the person’s possession (s 5(6)). Section 6 confers a non-compellability protection equivalent to what the witness could claim in similar proceedings in Tasmania or in the requesting court’s jurisdiction (s 6(1)). If a privilege claim is unsupported and not conceded, the person may be required to give evidence but the Court must not transmit evidence to the requesting court if the requesting court upholds the claim upon referral (s 6(3)). These provisions limit the scope of enforceable demands and create procedural remedies when privilege is asserted.

Exclusion of evidence as discretionary remedy: Sections 7(6)-(8) and s 9 preserve the trial judge’s discretion to exclude evidence. The Supreme Court may permit tendering of evidence taken abroad on terms it considers fit (s 7(6)), but evidence tendered under that provision is not admissible if the witness is in Tasmania and able to attend the hearing or if the evidence would not have been admissible at the hearing (s 7(7)). The Court may also exclude, in the interests of justice, evidence taken in an examination held under s 7(2) despite its admissibility (s 7(8)). Section 9 expressly preserves the power of a criminal court to exclude evidence in the exercise of its discretion. These exclusionary controls are non-penal means by which courts can limit the effect of improperly obtained or unfairly gathered evidence.

Regulatory and procedural enforcement: The Act empowers Rules of Court under the Supreme Court Civil Procedure Act 1932 (s 12) and regulations by the Governor (s 13) for practice and procedure. Breach of procedural rules might attract consequences under those rules, including procedural orders, costs consequences or other remedies the Court deems appropriate under the Rules regime. The Act does not itself set out a schedule of fines or administrative penalties for procedural breaches.

Administrative accountability: Administration is assigned to the Minister and Department of Justice and Industrial Relations until otherwise arranged (s 14). Administrative non-compliance or maladministration may therefore fall within the normal mechanisms of ministerial responsibility, administrative law review, or internal departmental oversight. The Act contains no express administrative penalties.

In summary, the Act’s express penal provision is confined to false unsworn testimony under s 5 (s 11). Enforcement of compliance with court orders primarily relies on the Supreme Court’s existing coercive powers and the procedural controls and sanctioning mechanisms embedded in the Rules of Court and judicial discretion, including evidence exclusion and contempt or other established enforcement remedies, none of which are exhaustively specified in the Act itself.

The Act explicitly recognises and preserves relationships with several other statutory schemes and reserved judicial powers. It both references and defers to other instruments for procedural detail and administrative allocation.

Non-exclusion of other State laws: Section 10 makes clear that the Act does not exclude or limit the operation of any other law of the State, or any rule or regulation made under such a law, that addresses taking evidence in the State for proceedings outside the State or examination of witnesses outside the State for proceedings in the State (s 10(a)-(b)). Practically, that means the Act sits alongside pre-existing statutory regimes or rules that may cover similar subject matter; users must check for any alternative statutory procedure that might apply, since s 10 preserves their operation.

Interaction with the Criminal Code: Section 11 creates a criminal offence for knowingly false or dishonest unsworn testimony given under a s 5 order, but it makes liability “on indictment under the Criminal Code” (s 11). The Act therefore defers to the Criminal Code both for the categorisation of the offence and for sentencing and procedural treatment. Practitioners must therefore consult the Criminal Code for details of punishment and any ancillary procedural rules.

Rules of Court and the Supreme Court Civil Procedure Act 1932: Section 12 empowers Rules of Court to prescribe the manner of making applications under s 4, circumstances in which orders may be made under s 5, mechanics of making references under s 6(3), prescription of matters necessary or convenient for carrying out Part 3, and practice and procedure for s 7 and s 8 proceedings (s 12(1)(a)-(e)). The Rules may also include incidental, supplementary and consequential provisions (s 12(2)). Consequently, the substantive powers in this Act are intended to be given operational effect through Rules promulgated under the Supreme Court Civil Procedure Act 1932. Compliance and procedural obligations will therefore depend heavily on the Rules enacted pursuant to s 12.

Governor’s regulations: Section 13 gives the Governor power to make regulations for the Act and to provide for practice and procedure in proceedings for orders under s 7 or s 8. This additional regulatory pathway supplements the Rules of Court and may fill procedural gaps left by the Rules.

Administrative Arrangements Act 1990: Section 14 assigns administration of the Act to the Minister for Justice and Industrial Relations and the relevant department until an order under the Administrative Arrangements Act 1990 makes other provision (s 14). The Act therefore anticipates that administrative responsibility could be reallocated by executive order under that separate statute.

Territorial and international reach: The definition of “Australia” differs by Part and the Act explicitly includes New Zealand when defining Australia for the purposes of Part 3 (s 3). Section 4(2) confines Part 2’s application to criminal matters only where the requesting court is in Australia or New Zealand, thereby drawing a jurisdictional line for cross-border criminal assistance. For letters of request under Part 3, “judicial authority” may include prescribed courts or persons in the place outside the State (s 3), enabling tailored recognition of foreign institutions where regulation or rules permit such prescription.

Preservation of common-law and statutory evidentiary rules: Section 9 ensures that the Act does not affect a criminal court’s power to exclude evidence in the exercise of its discretion. Moreover, section 6’s protection against compulsion to give privileged evidence is framed by reference to what a witness could be compelled to give “in similar proceedings in Tasmania” or in the place exercising jurisdiction, expressly relating the Act to existing substantive and procedural privilege norms.

In sum, the Act is not a freestanding, exhaustive code. It anticipates procedural elaboration through Rules of Court and regulations, references criminal liability to the Criminal Code, defers administration to executive arrangements under the Administrative Arrangements Act 1990, preserves pre-existing State statutes and rules on the same topics, and borrows definitional reach in specifying the geographical scope of its powers. Practitioners must therefore consider the Act in conjunction with the Criminal Code, the Supreme Court Civil Procedure Act 1932 and any relevant State statutes, rules or regulations that address the taking of evidence across jurisdictions.

The supplied text of the Act contains no express amendment schedule, no marginal notes indicating prior amendments, and no consolidated amendment chronology within the document provided. The statutory provisions that are present are the operative sections and the commencement clause.

Commencement: Section 2 states that the Act “commences on a day to be proclaimed” (s 2). The text does not specify the day of proclamation or any retrospective operative date. Practitioners must therefore check official publication or government gazette sources to determine whether and when a proclamation was made, because the supplied text alone does not show commencement.

References to other Acts and potential future administrative change: The Act anticipates future administrative adjustments by reference to the Administrative Arrangements Act 1990 in section 14, which assigns administration to the Minister for Justice and Industrial Relations and the Department of Justice and Industrial Relations until provision is made under the Administrative Arrangements Act 1990 (s 14). That clause is procedural and indicates the Act’s architecture is designed to accommodate reallocation of administrative responsibility by later executive order rather than by amendment to the Act itself.

Delegated instruments pathway: The Act enables the making of Rules of Court under the Supreme Court Civil Procedure Act 1932 (s 12) and regulations by the Governor (s 13). Those instruments are likely to be the primary vehicles for procedural change and fine-grained amendment of practice rather than repeated amendment to the Act’s text. Any amendment history of practice is therefore likely to appear in Rules and Regulations, not in the statute’s text. The supplied Act text does not set out any such subordinate instruments.

Absence of recorded legislative history in text: The supplied text does not include explanatory memoranda, second reading speeches, or annotations recording later legislative amendments. It therefore contains neither the legislative intent narrative nor a record of subsequent modifications. Users who require amendment history should consult Parliamentary records, the Tasmanian Government Gazette for proclamation and subordinate instruments, and any consolidated statute databases that annotate amendments.

Practical implication: Because the text supplied is silent on amendment chronology and commencement, users should verify the Act’s current operative form and any amendments through the authoritative consolidated statute source held by the government or official legal information services. They should also check whether Rules of Court or regulations have been made under ss 12 and 13, and whether administrative responsibility has been reassigned under the Administrative Arrangements Act 1990, as those instruments may materially affect practical operation despite not being amendments to the Act’s text.

The supplied Act text contains no references to judicial decisions, reported cases, or litigation applying or interpreting its provisions. It does not name or cite any case law, nor does it supply any annotations or notes on judicial interpretation. Therefore, the document provides no litigation history and no examples of how courts have applied the statutory provisions.

Consequences of absence: In the absence of cases cited in the text, practitioners cannot rely on the statute alone for settled judicial interpretation of its discretionary standards, such as the “interests of justice” test in s 7(2), the Court’s assessment of whether a person is able and willing to attend in Tasmania (s 7(3)(a)), or how s 6 privilege claims supported by a foreign request are to be handled in practice (s 6(2)-(3)). The Act’s use of broad discretionary language and reference to procedural instruments (s 12-13) means that litigation and rules practice are likely to develop interpretive detail, but none of that detail is in the supplied text.

Recommended next steps for practitioners seeking precedent: To obtain litigation history, practitioners should search Tasmanian Supreme Court and Tasmanian inferior court decisions, and any appellate rulings, for proceedings in which applications under s 4, s 5, s 6, s 7 or s 8 were made. Relevant searches should include enquiries into: how the Court construes the “interests of justice” criterion (s 7(2)-(3)); how strictly courts construe s 5(6)’s limitation on documentary compulsion; the Court’s approach to requests from foreign criminal courts in light of s 4(2); and how the Court deals with unsworn testimony and the application of s 11. Additionally, searches in relation to practice rules enacted under s 12 and regulations under s 13 may reveal reported interlocutory decisions that interpreted those rules.

If litigation tends to be sparse, the Rules of Court and any practice directions or departmental guidance issued pursuant to s 12 and s 13 may be key sources of operational precedent and administrative practice; these instruments are not included in the supplied text and must be located separately. In particular, decisions on the admissibility of evidence taken pursuant to out-of-State examinations, or on whether examination evidence should be excluded under s 7(8) or s 9, will be directly relevant to trial strategy and to assessing compliance burdens.

Because the supplied Act text is silent on litigation, this section records that no litigation history is present in the source. Practitioners should therefore treat the statutory provisions as requiring independent verification against case law and rule instruments before relying on settled judicial interpretations.

This Act contains several provisions that can produce unintended results or procedural traps if overlooked. The following points are concrete, text-based cautions drawn from the Act’s wording.

Privilege claims tied to the request or applicant concession: Section 6 shields persons from being compelled to give evidence that they could not be compelled to give in similar proceedings in Tasmania or in the requesting court’s jurisdiction (s 6(1)). However, the protection for the law of the place where the requesting court exercises jurisdiction applies only if the claim is supported by a statement contained in the request or is conceded by the applicant (s 6(2)). Practitioners should not assume that asserting foreign privilege will automatically prevent compulsion in Tasmania; the request must explicitly state the claim or the applicant must concede it. If neither occurs, the witness may be compelled to give evidence but the Court must withhold transmission if the requesting court later upholds the claim (s 6(3)). This bifurcated mechanism creates a time-lag and potential production of evidence in Tasmania that may or may not be transmitted, which can produce strategic and confidentiality risks.

Limitation on documentary compulsion: Section 5(6) forbids orders requiring a person to state what documents relevant to the proceedings are or to produce documents other than particular documents specified in the order and found by the Court to be in the person’s possession (s 5(6)). This prevents broad discovery-style demands under a Part 2 order. Applicants must therefore precisely identify documents and should not rely on a general power to compel production of “all relevant documents”.

Criminal matters restriction under Part 2: Part 2 does not apply to criminal or alleged offence proceedings unless the requesting court is a court of a place in Australia or a court of New Zealand (s 4(2)). Requests from criminal courts outside Australia and New Zealand will therefore not be actionable under Part 2, potentially requiring alternative diplomatic or treaty-based channels for evidence gathering. Failure to note s 4(2) can lead to misdirected applications.

Unsworn testimony and criminal liability: Section 11 creates a crime for materially false statements made in testimony given otherwise than on oath or affirmation pursuant to an order under s 5 (s 11). Two points follow. First, the provision targets unsworn testimony given under s 5 orders, so practitioners must carefully consider whether to consent to unsworn testimony and advise witnesses of the criminal exposure created by s 11. Second, s 5(5) expressly allows an order to require a person to give testimony otherwise than on oath if asked by the requesting court (s 5(5)). That means a requesting court may seek an unsworn statement, but giving such testimony carries criminal risk under s 11.

Evidence admissibility traps: Evidence taken under s 7 may be tendered in the proceeding at the Court’s discretion (s 7(6)), but section 7(7) renders such evidence inadmissible if the witness is in Tasmania and able to attend the hearing or if the evidence would not have been admissible had it been given or produced at the hearing (s 7(7)). Moreover, the Court can exclude such evidence in the interests of justice even if otherwise admissible (s 7(8)). Practitioners should therefore assess whether overseas examination will produce evidence that survives these admissibility constraints and whether obtaining the evidence abroad is necessary or could be counterproductive.

Rule-making and regulation uncertainty: Sections 12 and 13 authorize Rules of Court and regulations to govern application form, circumstances for orders, and practice in proceedings under ss 4, 5, 6, 7 and 8 (s 12(1), s 13). Until such rules and regulations are promulgated, procedural uncertainty may persist. Users should check whether the Rules under the Supreme Court Civil Procedure Act 1932 and Governor’s regulations exist and what they prescribe. Failing to follow required form or practice under unexamined rules could result in rejected applications.

Territorial definition differences: The Act defines “Australia” differently for Parts 2 and 3, and includes New Zealand for Part 3 (s 3). Practitioners must be careful with cross-border requests and the Act’s territorial limits. For instance, the inclusion of New Zealand in Part 3 affects the scope of letters of request and overseas examinations but does not automatically expand Part 2’s criminal assistance (s 4(2)).

Transmission of evidence to requesting courts: A person may be compelled to give evidence even where privilege is asserted but not supported in the request; the evidence will be withheld from transmission unless the requesting court upholds the claim on referral (s 6(3)). This produces a risk that private or privileged material will be taken in Tasmania and will only later be withheld at transmission stage, adding complexity to confidentiality management.

Meaning of “Supreme Court” in Part 3: Section 7(1) defines “Supreme Court” in that section as that Court except when exercising federal jurisdiction. The distinction means that orders under s 7 are to be understood in the context of state jurisdiction; matters involving federal jurisdiction may require different treatment or additional steps.

Practical gotcha on conduct money: Section 5(7) entitles persons required to attend by order to the same conduct money and payments for expenses and loss of time as witnesses in proceedings before the Supreme Court (s 5(7)). Applicants should budget and make arrangements for these payments; failing to do so can delay attendance or create disputes.

Administrative responsibility may change: Section 14 assigns administration to the Minister and Department of Justice and Industrial Relations until an Administrative Arrangements Act 1990 order changes that assignment (s 14). Users should confirm the current administrative responsibility to avoid misdirecting inquiries.

Overall, the most common practical pitfalls arise from the specificity required by s 5(6) on documents, the procedural conditions for privilege in s 6(2), the territorial limitation in s 4(2), the criminal consequences of unsworn testimony in s 11 and the admissibility constraints in s 7(7)-(8). Careful drafting of requests, attention to supporting statements for privilege claims, and confirming applicable Rules of Court will mitigate most of these risks.

This section sets out concrete, text-based steps for practitioners, applicants and respondents to comply with the Act’s requirements and to manage procedural risk. All references are to the relevant sections of the Act.

1. Verify the statutory gateway for Part 2 applications (s 4)

   • Confirm the request is issued by or on behalf of a requesting court or tribunal exercising jurisdiction outside Tasmania (s 4(1)(a)).
   • Confirm the evidence sought is for proceedings already instituted or contemplated before the requesting court (s 4(1)(b)).
   • For requests relating to criminal or alleged offence proceedings, ensure the requesting court is in Australia or New Zealand, otherwise Part 2 does not apply (s 4(2)).

2. Prepare the application to the Supreme Court for an order under Part 2 (s 5)

   • Draft an application that sets out the request and explains how the evidence relates to the foreign proceedings, establishing the link required by s 4(1).
   • Specify precisely the steps sought by the order; the Court may include examinations, production of documents, inspection, sampling, medical examination and blood testing (s 5(3)(a)-(f)).
   • For document production, identify particular documents to be produced rather than seeking general discovery. The Court cannot require a person to state what documents relevant to the proceedings are or to produce documents other than particular documents specified in the order (s 5(6)).

3. Address privilege claims proactively (s 6)

   • If a witness claims protection under the law of the requesting court’s place, ensure that the claim is supported by a statement in the request. Absent this, the claim will not prevent compulsion unless the applicant concedes it (s 6(2)).
   • Consider obtaining the applicant’s concession for privilege where appropriate, or ensure the requesting court’s documentation explicitly supports any claimed exemption.

4. Plan for witness attendance and remuneration (s 5(7))

   • Budget for conduct money, expenses and loss of time for any persons required to attend under an order; they are entitled to the same payments as witnesses in Supreme Court proceedings (s 5(7)).

5. If seeking examination outside the State (Part 3, s 7)

   • Apply as a party to the Tasmanian proceeding and demonstrate that it appears in the interests of justice to make the order (s 7(2)).
   • Address the matters specified in s 7(3): willingness or ability of the person to come to Tasmania, materiality of the evidence, and whether granting or refusing the order better serves the interests of the parties.
   • When drafting a letter of request or proposed directions, include any requests as to examination, cross-examination, attendance of legal representatives, and any prescribed matters (s 7(5)(a)-(c)).
   • Consider whether the person is in Tasmania and able to attend, because evidence taken abroad and tendered later may be inadmissible if the person is in the State and able to attend the hearing (s 7(7)(a)).

6. Be cautious about unsworn testimony and criminal exposure (s 5(5), s 11)

   • If a requesting court seeks unsworn testimony, be aware the Supreme Court may order testimony otherwise than on oath if the requesting court asks for it (s 5(5)). But unsworn testimony given under a s 5 order triggers the Criminal Code-based offence in s 11 for materially false statements. Inform witnesses of this criminal risk and advise on the appropriateness of giving testimony on oath or affirmation where possible.

7. Use Rules and Regulations to shape process (s 12-13)

   • Check whether Rules of Court under the Supreme Court Civil Procedure Act 1932 have been made pursuant to s 12. These Rules will prescribe the manner of applications under s 4, circumstances for s 5 orders, the mechanics for references under s 6(3), and practice under Part 3. Non-compliance with prescribed rules may jeopardise applications.
   • Check for any Governor’s regulations under s 13 prescribing practice and procedure for proceedings for orders under s 7 or s 8. Align forms and timelines with those instruments.

8. Protect confidential material and manage transmission risk (s 6(3))

   • If compelled evidence contains material the witness or third party considers privileged under the foreign jurisdiction but not supported in the request, consider seeking a protective order, seeking to have the request amended to include the necessary statement, or securing a judicial concession under s 6(2)(b).
   • If compelled evidence may be withheld at transmission stage, evaluate whether that outcome is acceptable functionally, or whether other procedural routes should be used.

9. Coordinate with the Department and Minister where necessary (s 14)

   • Until administrative responsibility is changed by order under the Administrative Arrangements Act 1990, liaise with the Department of Justice and Industrial Relations and the Minister for Justice and Industrial Relations regarding procedural or administrative enquiries (s 14).

10. Anticipate exclusionary objections at trial (s 7(8), s 9)

    • Be ready to justify that evidence obtained via overseas examination should be admitted, and prepare to address admissibility challenges based on hearsay, reliability, fairness or the witness’s availability. The Court may exclude such evidence in the interests of justice (s 7(8)), and criminal courts retain their usual power to exclude evidence (s 9).

11. Practical drafting checklist for requests and orders

    • Identify the requesting court and include statements supporting any privilege claims per s 6(2).
    • Specify particular documents sought; avoid general document requests (s 5(6)).
    • Specify the exact steps sought and the legal basis; map each requested coercive step to an s 5(3) head where appropriate.
    • If seeking unsworn testimony, state why that form is necessary and ensure witnesses are warned of s 11 consequences.
    • Include details on conduct money arrangements for witnesses (s 5(7)).

Following these steps aligns practice with the Act’s textual requirements and reduces procedural risk. Because the Act anticipates further procedural prescription through Rules of Court and regulations, practitioners must also check and comply with those subordinate instruments in effect at the time of the application.