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Trans-Tasman Proceedings Bill (Consistent) (Sections 14, 21, 25(c), 27(1)) [2009] NZBORARp 72 (20 November 2009)

Last Updated: 28 April 2020

Trans-Tasman Proceedings Bill

20 November 2009

ATTORNEY-GENERAL

Trans-Tasman Proceedings Bill (PCO13737/2.24): Consistency with the New Zealand Bill of

Rights Act 1990

Our Ref: ATT395/122

1. I have reviewed the Trans-Tasman Proceedings Bill for consistency with the New Zealand Bill of Rights Act 1990. I conclude that while a number of issues arise in respect of the Bill, the Bill appears consistent with that Act.

2. The Bill proposes reforms to the conduct of proceedings conducted in part in New Zealand and in part in Australia, the determination of the appropriate forum, the grant of interim relief by New Zealand courts in support of Australian proceedings and the enforcement of a range of Australian judgments, including regulatory sanctions. Clause 3 of the Bill explains that the Bill gives effect to the 2008 New Zealand-Australia Agreement on Trans-Tasman Court Proceedings and Regulatory Enforcement and that parallel legislation will be enacted in Australia.

3. In summary, the following issues arise under the Bill of Rights Act:

3.1 Most broadly, Subpart 5 of Part 2 of the Bill provides for the enforcement of a range of Australian judgments, including some civil and regulatory penalties, notwithstanding that those judgments might not comply with the Bill of Rights Act either in their substantive content or in the procedures followed by the Australian court in question. However, in the context of cooperation in proceedings before the courts of another jurisdiction, the application of the Bill of Rights Act is qualified by the principle of comity between jurisdictions such that any non-compliance must reach the threshold of “flagrant breach” before it unacceptably limits protected rights. The provision for non-enforcement of judgments on the ground of public policy, although limited, permits avoidance of such breach. Consequently, no inconsistency arises.

3.2 Similar issues arise in respect of powers conferred upon Australian court proceedings in respect of a remote appearance conducted from New Zealand, with specific provision for the making of suppression orders (cl 43) and punishment of contempt (cll 47-48), as these powers may, again, be exercised inconsistently with the Bill of Rights Act. The application of the Bill of Rights Act in these respects is, again, subject to the principle of comity and also to some, albeit again limited, safeguards. For those reasons, no inconsistency arises.

3.3 The provision in the Bill for the stay of proceedings that are more appropriately brought in Australia (Subpart 2 of Part 2) constitutes a statutory limit on access to

the New Zealand courts, which may be protected by s 27 of the Bill of Rights Act. As

a stay may be granted only where a New Zealand court is satisfied that the proceeding is more appropriately brought (cl 24) or, and subject to safeguards, by agreement (cl 25), no inconsistency arises.

3.4 The provision in the Bill for a summary offence of contempt (cl 47(4)(b)) places an onus on an accused person to prove lawful excuse and so limits the presumption of innocence affirmed by s 25(c) of the Bill of Rights Act. In the particular context of non-compliance with a court order, however, the availability of an excuse is a matter peculiarly within the knowledge of the person charged and the limit is therefore justifiable.

3.5 The extension by the Bill of the scope for the enforcement in New Zealand of subpoenas issued by Australian courts to include criminal matters (Part 1 of Schedule

2) raises a question of search and/or seizure. However, that power is, in my view, subject to sufficient safeguards.

ANALYSIS

Enforcement of judgments that may be contrary to the New Zealand Bill of Rights

Act

4. Subparts 5-8 of the Bill provide for registration and enforcement of specified judgments of Australian courts and tribunals to be recognised and enforced in New Zealand. The Bill prescribes the categories of judgment that may be registered, which include – in contrast to the conventional exclusion from private international law of such “public law” judgments – taxation, civil pecuniary penalties and criminal fines for offences under specified regulatory statutes (cl 64(2) and Subparts 6-8). A registered judgment may be enforced as if it were a New Zealand judgment (cl 59).

A properly registered judgment may only be set aside if enforcement would be contrary to public policy (cl 57(2)(b)).

5. As the Australian courts are not subject to the Bill of Rights Act, and rights protections in Australian jurisdictions vary considerably and do not in any event parallel that Act, it follows that judgments within the scope of the Bill may be contrary to the Bill of Rights Act, whether in their substance or in the procedure of the relevant Australian court. Further, the public policy exception to enforcement is likely, as at common law, to be interpreted narrowly so as be engaged only by judgments that “shock the conscience” of a reasonable New Zealander, are contrary to New Zealand’s view of basic morality or constitute a violation of essential principles of justice or moral interests in New Zealand. [1]

6. It follows that the Bill may permit the enforcement of judgments that, while falling

short of the high threshold of the public policy exception, nonetheless breach the Bill of Rights Act to some degree.

7. However, arrangements for cooperation and mutual enforcement in proceedings necessarily involve considerations of comity, or mutual respect, between

jurisdictions notwithstanding differences in applicable law. In that respect, and also in light of the social benefit of such arrangements, any non-compliance must reach the threshold of “flagrant breach” before it unacceptably limits protected rights. [2]

8. As the public policy exception would extend to protect against flagrant rights breaches, it follows that any lesser inconsistency is a justifiable limit in terms of s 5 of the Bill of Rights Act.

Powers in respect of remote appearances in Australian proceedings

9. Where a party or counsel appears remotely in Australian proceedings, the Bill provides for powers of suppression and punishment for contempt. To the extent that these powers depend upon actions of the Australian court, those actions are not, unlike those of a New Zealand court, subject to the Bill of Rights Act. As above, there is again the prospect that these powers may be used inconsistently with that Act.

In camera hearings and suppression orders

10. Clause 43 provides that in respect of a remote appearance from New Zealand in a proceeding in an Australian court, the Australian court may order the hearing be held in private and may limit publication of names or submissions.

11. Allowing a proceeding to be conducted in private and allowing the suppression of details of a proceeding (including names) limits the freedom of expression affirmed by s 14 of the Bill of Rights Act. However, that limit can be considered justified as a necessary incident of remote appearances, as such appearances would otherwise take place in an Australian court, and are also subject to the limited safeguard afforded by the discretion of the New Zealand courts to enforce such orders under cl

44(1)(b).

Contempt

12. While an Australian court does not have the power to punish for contempt in respect of a remote appearance (cl 42(1)(b)), the Bill provides for punishment of contempt both through the courts in respect of suppression orders (cl 44(2)) and as a summary offence (cl 47).

13. However, both provisions include safeguards: as noted, cl 44 provides for discretion in the enforcement of suppression orders, while cl 47 requires a separate conviction in the New Zealand courts, including, in respect of breach of a court order or direction, provision for lawful excuse. In light of those safeguards and again recognising that such powers are a necessary incident of remote appearances, these provisions again appear justified.

Ability to stay New Zealand proceedings

14. The Bill provides that a New Zealand court may stay proceedings if it is satisfied that an Australian court is a more appropriate forum (Subpart 2 of Part 2).

15. The right to justice affirmed by s 27(1) may include a general right of access to the courts. [3] Given, however, that such a stay will issue only where the New Zealand court is satisfied, in light of extensive criteria, that the claim is more appropriately brought in Australia (cl 24) or by agreement, which is again subject to safeguards, (cl

25), there is not a prospect of denial of access to the courts.

Reverse onus provision

16. Clause 47(4)(b) of the Bill provides a summary offence of wilful disobedience, without reasonable excuse, of any order of an Australian court where that person is at a place from which a remote appearance from New Zealand is being made in an Australian proceeding. As a summary offence, cl 47(4)(b) places an evidential onus on the accused person to prove any excuse and so limits the presumption of innocence affirmed by s 25(c).

17. As the nature of any excuse is a matter within the knowledge of the defendant and noting both the limited scope of the offence, as it applies only to persons who are present at a remote appearance, and the limited penalty available, however, I conclude that the limitation is justifiable in terms of s 5 of the Bill of Rights Act. [4]

Extension of ability to issue subpoenas

18. Part 1 of Schedule 2 of the Bill amends the Evidence Act 2006 to allow subpoenas that have been issued in Australian criminal proceedings to be served and complied with in New Zealand.

19. A subpoena may require a person to produce a document or thing and so may involve search and/or seizure. [5] However, the requirement that a court or tribunal issue the subpoena and that leave be obtained before it can be served allows for prior and independent verification that the exercise of the information-gathering power is justified in the particular case, which, although not conducted by a New Zealand court, must – in accordance with the principle of comity noted above – be regarded as affording some safeguard. [6] Further, there are additional other safeguards as to the exercise of these powers, including the ability to set aside a subpoena served in Australia [7] and the ability to excuse failure to comply with an Australian subpoena. [8]

20. It follows that the provision for search or seizure by way of subpoena is not unreasonable in terms of s 21 of the Bill of Rights Act.

21. In accordance with Crown Law practice, this advice has been peer reviewed by Ben

Keith, Crown Counsel.

Yours faithfully

Jane Foster

Associate Crown Counsel

Footnotes:

1. Reeves v OneWorld Challenge LLC [2005] NZCA 314; [2006] 2 NZLR 184 (CA) at para [67].

2. See, particularly, United States of America v Barnette &Anor [2004] UKHL 37; [2004] 4 All ER 289 (HL);

although cf Reeves, above n 1, [90] per W Young J, dissenting.

3. Lai v Chamberlaain [2005] 3 NZLR 291(CA), [178]; not specifically addressed in [2007]

2 NZLR 7 (SC).

4. See Sheldrake v Director of Public Prosecutions [2004] UKHL 43; [2005] 1 AC 264 (HL); see discussion in R v Hansen [2007] 3 NZLR 1 (SC), 29, [66] (per Blanchard J, dissenting) onus in respect of drunk driving offences in appropriate given the issue "so closely conditioned by the driver's own knowledge and state of mind at the material time as to make it much more appropriate for him to prove on the balance of probabilities" and 74, [220] (per McGrath J).

5. Evidence Act, s 150.

6. See above n 2

7. Evidence Act, s 160.

8. Evidence Act, s 165.

In addition to the general disclaimer for all documents on this website, please note the following: This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the Trans-Tasman Proceedings Bill. It should not be used or acted upon for any other purpose. The advice does no more than assess whether the Bill complies with the minimum guarantees contained in the New Zealand Bill of Rights Act. The release of this advice should not be taken to indicate that the Attorney-General agrees with all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect

of this or any other matter.