13Requests by foreign countries for the taking of evidence or the production of documents

#### 13 Requests by foreign countries for the taking of evidence or the production of documents (1) This section applies if a foreign country (the requesting country) requests: (a) any of the following: (i) that evidence be taken in Australia; (ii) that evidence be taken in Australia and a tape recording be made of the evidence taken; (iii) that evidence be taken in Australia for live transmission by means of video link to a courtroom or other place in the requesting country; or (b) that documents or other articles in Australia be produced; for the purposes of a proceeding in relation to a criminal matter in that country or another foreign country (the foreign proceeding). (1A) The Attorney‑General may, by writing in accordance with the approved form, authorise: (a) the taking of the evidence and its transmission to the requesting country; or (b) the production of the documents or other articles and their transmission to the requesting country. (2) If the Attorney‑General gives an authorisation under subsection (1A): (a) in the case of the taking of evidence—a Magistrate or eligible Judge may do all or any of the following: (i) take evidence on oath or affirmation of the witness appearing before the Magistrate or Judge to give evidence in relation to the matter; (ii) direct that all or part of the proceeding be conducted in private; (iii) require a person to leave the place in Australia where the giving of evidence is taking place or going to take place; (iv) prohibit or restrict the publication of evidence given in the proceeding or of the name of a party to, or a witness in, the foreign proceeding; (v) subject to subsection 13AB(1), require the production of documents or other articles; (vi) take such action as the Magistrate or Judge considers appropriate to facilitate the foreign proceeding; (vii) perform any other function required by the regulations; or (b) in the case of the production of documents or other articles—a Magistrate or eligible Judge may, subject to subsection 13AB(1), require the production of the documents or other articles and, where the documents or other articles are produced, a Magistrate or eligible Judge must send the documents, or copies of the documents certified by that Magistrate or Judge to be true copies, or the other articles, to the Attorney‑General. > Note 1: Subparagraph (2)(a)(i)—see also subsection (2C). > Note 2: Subparagraphs (2)(a)(ii), (iii) and (iv)—see also subsection (2B). (2A) However, a Magistrate or eligible Judge may not make a ruling about the admissibility of evidence in a foreign proceeding. (2B) If a Magistrate or eligible Judge is taking evidence for live transmission by means of video link to a courtroom or other place in the requesting country, the Magistrate or Judge: (a) may only exercise the powers mentioned in subparagraphs (2)(a)(ii), (iii) and (iv) at the request of the foreign court; and (b) may, at the request of the foreign court, assist with the administering by the foreign court of an oath or affirmation; and (c) may administer an oath or affirmation. (2C) If a Magistrate or eligible Judge takes evidence as mentioned in subparagraph (2)(a)(i) but not for live transmission by means of video link to a courtroom, or other place, in the requesting country, the Magistrate or Judge must: (a) if the requesting country requests that a tape recording be made of the evidence taken—cause a tape recording to be made of the evidence, certify that the evidence on the tape recording was taken by the Magistrate or Judge and cause the tape recording, or a copy of it, to be sent to the Attorney‑General; and (b) in any other case—cause the evidence to be put in writing, certify that the evidence was taken by the Magistrate or Judge and cause the writing so certified to be sent to the Attorney‑General. (2D) If, in taking evidence as mentioned in paragraph (2)(a), a Magistrate or eligible Judge requires the production of documents or other articles under subparagraph (2)(a)(v), a Magistrate or eligible Judge must send the documents, or copies of the documents certified by that Magistrate or Judge to be true copies, or the other articles, to the Attorney‑General. (3) The evidence of such a witness may be taken in the presence or absence of the person to whom the proceeding in the requesting country relates or of his or her legal representative (if any). (4) The Magistrate or eligible Judge conducting a proceeding under subsection (2) may permit: (a) the person to whom the proceeding in the requesting country relates; (b) any other person giving evidence or producing documents or other articles at the proceeding before the Magistrate or Judge; and (c) the relevant authority of the requesting country; to have legal representation at the proceeding before the Magistrate or Judge. (4A) If the requesting country has so requested, the Magistrate or eligible Judge conducting a proceeding under subsection (2) may permit: (a) any person to whom the proceeding in the requesting country relates or that person’s legal representative; or (b) the legal representative of the relevant authority of the requesting country; to examine or cross‑examine in person, or through a video link from the requesting country, any person giving evidence or producing a document or other article, at the proceeding. (4B) For the purposes of Part III of the Crimes Act 1914: (a) the proceeding before the Magistrate or eligible Judge is a judicial proceeding; and (b) evidence taken from a witness on oath or affirmation is testimony given in a judicial proceeding. (5) The certificate by the Magistrate or eligible Judge under subsection (2) shall state whether, when the evidence was taken or the documents or other articles were produced, any of the following persons were present: (a) the person to whom the proceeding in the requesting country relates or his or her legal representative (if any); (b) any other person giving evidence or producing documents or other articles or his or her legal representative (if any).