Yes.

Yes, Australia has been a party to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”) since October 23, 1992.¹  The Foreign Evidence Act 1994 (Cth) gives effect to the Hague Evidence Convention in Australia. In addition, each state and territory has its own legislation giving effect to the Hague Evidence Convention which enables the relevant state or territory court to make an order giving effect to the request for evidence. Although the legislation varies slightly between each state and territory, the overall effect is that foreign parties can use Australian courts to compel the provision of evidence by unwilling or uncooperative witnesses.

The Letter of Request can be issued to the Commonwealth Attorney-General's Department, which will then refer the request to the relevant state or territory court to make the order, or to the relevant Australian court by a person nominated for that purpose by the requesting foreign authority (e.g. an Australian lawyer).

Given the process of receiving approval from the Attorney-General is time-consuming - it can take at least six months - it is common in proceedings with expedited timelines to retain Australian lawyers to make the required application directly to the Australian court under the applicable federal, state or territory legislation. Accordingly, except for South Australia, all of Australia's state and territory courts can make an order giving effect to the Letter of Request, following an application made to the court, if satisfied that:²

1. the application is made in accordance with a request issued by, or on behalf of, a court or tribunal exercising jurisdiction in a place outside the state or territory (the requesting court); and
2. the evidence to which the application relates pertains to proceedings that have either been instituted before the requesting court or whose commencement before the requesting court is contemplated.

[1] Nygh's Conflict of Laws in Australia (2019, 10th ed), Chapter 11: Evidence from and for Other Countries, p 282 [11.2].

[2] Court Procedure Rules 2006 (ACT) r 6843(1); Evidence Act 1939 (NT) s 52(1)(a); Evidence on Commission Act 1995 (NSW) s 32(1); Evidence Act 1977 (QLD) s 36; Evidence on Commission Act 2001 (Tas) s 4(1); Evidence (Miscellaneous Provisions) Act 1958 (Vic) s 9M(1); Evidnece Act 1906 (WA) s 116(1).

See above.

Australian courts have the power to give effect to applications for assistance in obtaining evidence for proceedings in a foreign court for, but not limited to:¹

1. (a) the examination of witnesses (either orally or in writing);
2. the production of documents;
3. the inspection, photographing, preservation, custody or detention of any property;
4. the taking of samples of any property and the carrying out of any experiments on or with any property;
5. the medical examination of any person;
6. without limiting paragraph (e), for the taking and testing of samples of blood from any person.

However, the order cannot require a person to:²

1. state what relevant documents they have in their possession, custody or power; or
2. produce any documents other than the particular documents specified in the order which are likely to be in their possession, custody or power.

[1] Court Procedure Rules 2006 (ACT) r 6843(3); Evidence Act 1939 (NT) ss 53(1), 53(3); Evidence on Commission Act 1995 (NSW) ss 33(1), 33(3); Evidence Act 1977 (QLD) ss 37(1), 37(2) (does not specify the taking and testing of blood samples); Evidence on Commission Act 2001 (Tas) s 5(3); Evidence (Miscellaneous Provisions) Act 1958 (Vic) ss 9N(1), 9N(3); Evidence Act 1906 (WA) ss 117(1), 117(3).

[2] Court Procedure Rules 2006 (ACT) r 6843(6); Evidence Act 1939 (NT) s 53(6); Evidence on Commission Act 1995 (NSW) s 33(6); Evidence Act 1977 (QLD) s 37(6); Evidence on Commission Act 2001 (Tas) s 5(6); Evidence (Miscellaneous Provisions) Act 1958 (Vic) s 9N(6); Evidence Act 1906 (WA) s 117(6).

In Australia, the onus or burden of showing whether privilege applies falls on the party claiming the privilege.¹

[1] Evidence on Commission Act 1995 (NSW) s 34; Court Procedure Rules 2006 (ACT) r 6850; Evidence Act 1939 (NT) s 54; Evidence Act 1977 (QLD) s 38; Evidence on Commission Act 2001 (Tas) s 6(1); Evidence (Miscellaneous Provisions) Act 1958 (Vic) s 9O; Evidence Act 1906 (WA) s 118; Evidence Act 1929 (SA) s 59F.

It is important that evidence taken in Australia for the purposes of foreign proceedings adheres to Australian laws governing the procedures for the collection of evidence. Any Letter of Request must be sufficiently particularized and should use specific language. If framed too broadly, it may not be accepted by Australian courts. To avoid this issue, it is good practice to annex or attach the specific questions to be asked of the witness, or the particular documents sought from the relevant person, to the Letter of Request.

It is unlikely an Australian court will allow an application for a Letter of Request where the relevant proceedings have not yet commenced or are not in contemplation - the basis of this judicial position is to prevent nefarious techniques such as "document fishing".

The position in relation to adducing remote witness testimony differs depending on the state or territory that which the witness resides. For example, the Supreme Court of New South Wales does not have the power to compel a witness residing in the state to give evidence by way of the audio-visual link directly to the foreign court.

In certain jurisdictions within Australia, specifically the Australian Capital Territory, the Northern Territory, New South Wales, Tasmania, Victoria and Western Australia, the courts are restricted from granting orders for the provision of evidence in a foreign court in respect of criminal proceedings, that is, "proceedings relating to the commission of an offense or alleged offense" (unless the requesting court is a New Zealand court).¹

In Queensland, an order for assistance or allowing a Letter of Request may only be made in respect of civil proceedings.² This reflects the fact that the Hague Evidence Convention is limited to civil or commercial proceedings and does not extend to those of a criminal nature.
 

Section 42(1) of the Foreign Evidence Act 1944 (Cth), provides that the Attorney-General retains the broad discretion to make a written order prohibiting:

1. the production of a document;
2. the production of a thing;
3. the giving of evidence or information, whether in relation to the contents of a document or otherwise.

A situation where the power under s 42 would likely be invoked by the Attorney-General to prevent the provision of evidence or production of documents in foreign proceedings includes, but is not limited to, where to do so may cause harm or prejudice to Australia's security.

[1] Court Procedure Rules 2006 (ACT) r 6844; Evidence Act 1939 (NT) s 52(1)(b); Evidence on Commission Act 2001 (NSW) s 32(2); Evidence (Miscellaneous Provisions) Act 1958 (Vic) s 9M(2); Evidence Act 1906 s 116(2) (Tas).

[2] Evidence Act 1977 (QLD) s 36.

Yes, citizens residing in Australia can voluntarily give evidence in a foreign proceeding.

Our responses do not materially change if the foreign proceeding is an arbitration - no doubt like many of the other jurisdictions that have provided responses, Australia's International Arbitration Act 1974 (Cth) adopts the UNICITRAL Model Law.