Australia Judicial Assistance


DISCLAIMER: THE INFORMATION IN THIS CIRCULAR RELATING TO THE LEGAL REQUIREMENTS OF SPECIFIC FOREIGN COUNTRIES IS PROVIDED FOR GENERAL INFORMATION ONLY AND MAY NOT BE TOTALLY ACCURATE IN A PARTICULAR CASE. QUESTIONS INVOLVING INTERPRETATION OF SPECIFIC FOREIGN LAWS SHOULD BE ADDRESSED TO FOREIGN COUNSEL.

Summary: Judicial Assistance between the United States and Australia is governed by the following treaties:

Vienna Convention on Consular Relations (VCCR) , 21 UST 77; 596 UNTS 261; TIAS 6820 (Article 5);

United States-United Kingdom Convention to Regulate Commerce (Article IV) of July 3, 1815, 8 Stat 228; TS 110; 12 Bevans 49;

The Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters, 28 USCA 1781 (1980 Cumulative Suppl) and 23 UST 2555; TIAS 7444.

U.S. – Australia Mutual Legal Assistance in Criminal Matters Treaty (1999), Treaty Doc. 105-27, 105th Cong., 1st Sess. Exec. Rept. 105-22, 105th Cong., 2nd Sess.

Service of Process:  Australia is not a party to the two multilateral treaties on service of process. At the 2003 Hague Conference on Private International Law Special Commission on the Practice Operation of the Hague Service, Evidence and Legalization Conventions, Australia responded to a questionnaire “as a non-party to the Service Convention, Australia relies on other methods of effecting service.  In countries where there is no applicable treaty, Australia abides with local law of the country to facilitate service of Australian process abroad.  Depending on local requirements, this may involve service by post (mail), process server, or via the diplomatic or consular officials.  Australian law does not prohibit private service of foreign process in Australia.  Australia also accepts requests from foreign courts for service via the diplomatic channel.  See Service of Foreign Process in Australia, Service of Foreign Process in Australia Relevant Legislation, and Service of Australian Court Process Abroad on the Australian Government webpage.

U.S. Foreign Service officers are prohibited by Federal Regulation (22 CFR 92.85) from serving process on behalf of private litigants or appointing others to do so, state law notwithstanding. 

Methods of Service Available:  Service of process may be effected in Australia by mail.  It is also possible to retain the services of a private process server in Australia to effect service of process. The process server can execute an affidavit of service before a U.S. consular officer at the U.S. embassy or one of the U.S. consulates in Australia which can be submitted as proof of service in the United States.  Current U.S. consular fees for notarial services are provided at 22 CFR 22.1.  Australian law does not require that service of process be effected pursuant to a letter rogatory, transmitted via the diplomatic channel.  If a U.S. litigant wishes to pursue this method of service, see the U.S. Department of State general circular entitled Preparation of Letters Rogatory.

Obtaining Evidence Summary: Australia is party to the Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters, 28 USCA 1781 (1980 Cumulative Suppl) and 23 UST 2555; TIAS 7444.  See the Australian response to the 2003 questionnaire on Hague Conference on Private International Law Special Commission regarding the Practical Operation of the Hague Evidence Convention.  The Convention provides a mechanism for the taking of voluntary depositions and compulsion of evidence in civil and commercial matters.  See the Australian Government web page Private International Law for general information about obtaining evidence.

- Pursuant to Article 15, evidence may be taken by a diplomatic officer or consular agent only if permission to that effect is given upon application to the Secretary of the Attorney-General's Department of the Commonwealth of Australia.  The Secretary of the Attorney-General's Department advises that permission of the Australian Central Authority is required in each case where evidence is sought to be taken under Articles 15 or 16.  This permission may be granted on a case-by-case basis.

Taking of Depositions of Willing Witnesses: Depositions of willing witnesses (without compulsion) may be conducted in Australia either before U.S. consular officers or before any other person (including an American attorney) who has been issued a commission for the taking of the deposition by a court in the United States.  Lists of attorneys in Australia prepared by the U.S. embassy and consulates in Australia are available on the Internet.

Article 15 of the Convention relates to a diplomatic officer or consular agent taking evidence from a national of the State they represent.  Article 16 relates to a diplomatic officer or consular officer taking evidence from a national of a State in which they exercise their functions or a third State.

Australia has made declarations in relation to both Article 15 and 16.  Pursuant to these declarations, permission is required to be granted by the Secretary of the Australian Attorney-General's Department before evidence may be taken.  Permission will only be granted on a case by case basis.

Applications should be addressed to the Secretary and sent to:

Australian Government Attorney-General's Department
Attn: Private International Law Section
Robert Garran Offices
National Circuit
BARTON ACT 2600
Australia

Contact the Australian Central Authority:  Direct contact information for the Australian Central Authority, including telephone, fax and email is available at this link to the Hague Conference on Private International Law webpage .

The declaration under Article 16 also empowers the Secretary to specify conditions with respect to the permission granted.  By way of example, these conditions may include:

  1. that the evidence shall be taken in compliance with all applicable Australian laws, including the applicable laws of any State or Territory
  2. that the evidence shall not be taken unless a reasonable time before the evidence is taken the witness has been fully advised of the following matters.

The Australian authorities therefore advise that it is in the best interests of the witness to seek independent legal advice on the implications of giving the evidence from a competent practitioner in the jurisdiction applicable to the above proceedings and a competent practitioner in Australia

Consular Fees for Depositions:  Current consular judicial assistance services fees are set forth in 22 CFR 22.1 .  See Schedule of Fees for Consular Services. In addition, actual costs for mailing transcripts must be furnished. No fees are charged for depositions at the request of U.S., state or local government officials (22 CFR 22.1 Schedule of Fees item 53(a) or at the request of parties that have been found to be indigent by the court (22 CFR 22.1 Schedule of Fees item 53(b).

Scheduling Depositions:  To schedule a deposition of willing witnesses directly or to obtain information about court reporters, stenographers or interpreters, contact the Consular Section, American Citizens Services Section at any of the U.S. Foreign Service posts in Australia. You must make your own arrangements to retain the services of a court reporter or stenographer, although lists of such services may be available from the U.S. consular officer. When contacting the American Citizen Service Section of a U.S. Embassy, Consulate General or Consulate, be sure to use the following instructions:

1. Read 22 CFR 92.49 through 92.71 (hyperlink);

2. Furnish the following information by letter to the American Services Section of the Consular Section of the American Embassy, Consulate General or Consulate:
a. Requesting attorney's full name, address, fax and telephone number(s) and e-mail address;
b. A brief description of the nature of the case and the purpose of the deposition;
c. Full name and address of the persons to be deposed as well as their citizenship and a statement that the witnesses'' appearance is voluntary;
d. Suggested dates for taking the deposition or a period within which the deposition should be taken;
e. Whether the deposition done in person or on written interrogatories;
f. Whether a qualified court reporter and/or a translator/interpreter will be necessary.  If so, the requesting party must make the arrangements for these services directly.  The consular officer cannot make such arrangements for private litigants. 
g. A list of persons who will attend the taking of the deposition (e.g., requesting counsel, opposing counsel, et al.);
h. Whether the consular officer will be required to preside at the entire proceedings or may administer the appropriate oath(s) and withdraw subject to recall.

3. Attach to the letter or forward separately:
a. Fees: 22 CFR 22.1 provides the current consular fees for taking of testimony abroad.  A deposit for fees is payable in advance prior to taking of deposition based on consular officer''s estimate of time required. Make certified or corporate check payable to "The American Embassy (Consulate General, Consulate) at (City)." (For Example, American Consulate General Sydney).
b. List of interrogatories and any special instructions;
c. Commission of the consular officer or notice of the taking of deposition. (See 22 CFR 92.52, 92.53 ).

4. Make separate arrangements with the witness to insure his or her appearance for the deposition (travel fees, witness fees, etc.) NOTE: This is requesting legal counsel's responsibility.

5. If counsel intends to do a video recording of the deposition and furnish their own equipment , please note that special customs clearances may be required by the foreign country to import the equipment into the country.  If proper permission is not obtained, the equipment may be confiscated by the foreign authorities. Also, American equipment may need special adapters to function on different foreign electrical currents. Counsel should also be aware that many countries do not allow video depositions. .

Travel to Australia for Judicial Assistance Activities: Before traveling to Australia for judicial assistance related activities, see the Country Specific Information sheet and any applicable Public Announcements or Travel Warnings at www.travel.state.gov.  It is also recommended that U.S. travelers register with the U.S. Embassy using our on-line registration system (IBBRS).  If the person traveling is a U.S. Government official, see Host Country Clearance Travel of U.S. Government Officials Regarding Judicial Assistance . U.S. Government officials should also determine if official visas will be required for them to enter the country in question.  This information may be obtained from the Special Issuance Passport Agency by calling (202) 955-0198 or via e-mail at www.ca-ppt-sia-diplomatictravel@state.gov or ca-ppt-sia-officialtravel@state.gov.

Compulsion of Evidence (Testimony, Documents, Other): If compulsion of evidence is required, in civil, commercial and some administrative cases (administrative cases are decided by foreign Central Authority on a case by case basis) the Hague Evidence Convention provides a "Model Letter of Request " which should be transmitted, in duplicate, directly from the court in the United States seeking assistance to the Australia Central Authority.  The mailing address and contact information for the Australian Central Authority is available on this link to the Hague Conference web page.

You may include in the request a request for permission for American counsel to participate in the proceeding before the Australian court. You may also wish to include the option of requesting that your local Australian counsel participate in the proceeding. Written interrogatories and cross interrogatories should be attached to the letter of request.  Australia will only accept a letter of request in English.

Australia Central Authority for Hague Evidence Convention: The Australia Central Authority for requests under the Hague Evidence Convention is the Secretary to the Attorney-Genera’s Department of the Commonwealth of Australia. Pursuant to Article 24, it designates the Registrars of the State and Territory Supreme Courts as additional authorities.  Contact information for the Australian Central Authority is available at this link to the Hague Conference webpage.

Prosecution Requests in Criminal Matters:  There is in force between the United States and Australia a Mutual Assistance in Criminal Matters (MLAT) Treaty.  Prosecutors in the United States should contact the U.S. Department of Justice, Criminal Division, Office of International Affairs   tel: (202) 514-0015 for assistance.  General information about MLAT treaties is available on this link to the U.S. Department of State, Bureau of Consular Affairs, Law and Policy web page.

Defense Requests in Criminal and Administrative Matters: In criminal cases, and other cases not governed by the Hague Evidence Convention, compulsion of evidence is accomplished pursuant to a letter rogatory transmitted through the diplomatic and consular channel. See the Department of State circular Preparation of Letters Rogatory .  Direct requests to the U.S. Department of State Bureau of Consular Affairs, Overseas Citizens Services, Office of American Citizens Services and Crisis Management, East Asia and Pacific Division, CA/OCS/ACS/EAP.  Mailing address:  SA-29, 4th Floor, 2201 C Street N.W., Washington, D.C.  20520.  Courier service address:  2100 Pennsylvania Avenue N.W., Washington, D.C. 20037, 1-888-407-4747. 

Administrative Cases:  The Hague Evidence Convention may be considered applicable by the Australian Central Authority in administrative cases on a case-by-case basis. If the Hague Evidence Convention is deemed inapplicable by the Australian Central Authority, the administrative matter may be submitted in the form of a letter rogatory.

Authentication of Documents:  Australia is a party to the Hague Convention Abolishing the Requirement for Legalization of Foreign Public Documents.  Information about the Australian authorities designated to issue “apostille” certificates under the Hague Apostille Convention is available on the Hague Conference on Private International Law webpage.  For Authentication of documents in the United States for use in Australia using the “apostille” see the U.S. Department of State Authentications Office web page. 

Notarial Services:  U.S. consular officers in Australia may perform notarial services.  General information about consular notarial services is available on the U.S. Department of State, Bureau of Consular Affairs, Law and Policy Page.  Current consular notarial fees are available at 22 CFR 22.1.

Enforcement of Judgments:  There is no treaty in force between the United States and any country on enforcement of judgments.  General information about Enforcement of Judgments is available on the Department of State, Bureau of Consular Affairs, Law and Policy home page.

Child Support Enforcement:  There is a bilateral agreement in force between the United States and Australia on child support enforcement.  Information about this agreement is available from the U.S. Central Authority, the Department of Health and Human Services, Office of Child support Enforcement International Resources web page.

Lists of Australian Attorneys: Lists of foreign attorneys willing to represent U.S. citizens have been prepared by the American Embassy and Consulates General in Australia and are available via the Internet at the U.S. embassy or consulate Lists of Attorneys web page.

ADDRESS OF THE AMERICAN EMBASSY AND CONSULATES IN AUSTRALIA:

In the Australian Capital Territory (ACT) or Queanbeyan:

U.S. Embassy in Canberra
Moonah Place
Yarralumla, ACT 2600
Australia
telephone: (61) (2) 6214-5600
fax (61) (2) 6273-3191
web site http://canberra.usembassy.gov/ . 

In New South Wales, Norfolk Island, Lord Howe Island and Queensland:

U.S. Consulate General
Level 59, MLC Centre
19-29 Martin Place
Sydney NSW 2000
Australia
telephone (61) (2) 9373-9200
fax (61) (2) 9373-9184
web site http://sydney.usconsulate.gov/sydney/index.html . 

In Victoria, Tasmania, South Australia and the Northern Territory:

U.S. Consulate General
553 St. Kilda Road
Melbourne, VIC 3004
Australia
telephone (61) (3) 9526-5900
fax (61) (3) 9525-0769
web site http://melbourne.usconsulate.gov/melbourne/index.html . 

In Western Australia:

U.S. Consulate General
16 St. Georges Terrace
Perth WA 6000
Australia
telephone: (61)(8) 9202-1224
fax (61)(8) 9231-9444
web site http://perth.usconsulate.gov/perth .

Links

U.S. Government Links:

U.S. Department of State – Australia Specific

U.S. Department of State - General

Other U.S. Government Links

Australia Links:

Reference

Rules of Appellate Advocacy: An Australian Perspective, 1 J. App. Prac. & Process 227 (Summer 1999)

Pleading and Proving Foreign Law In Australia, James Mccomish, 31 Melbourne U. L.R. 400 (2007)

Foreign Legal Professional Privilege: A New Problem For Australian Private International Law, James Mccomish, 28 Sydney L. Rev. 297 (2006)

Questions

General Inquiries:  Direct requests to the U.S. Department of State Bureau of Consular Affairs, Overseas Citizens Services, Office of American Citizens Services and Crisis Management, East Asia and Pacific Division, CA/OCS/ACS/EAP.  Mailing address:  SA-29, 4th Floor, 2201 C Street N.W., Washington, D.C.  20520.  Courier service address:  2100 Pennsylvania Avenue N.W., Washington, D.C. 20037, 1-888-407-4747.

Direct contact information for the Australian Central Authority, including telephone, fax and email is available at this link to the Hague Conference on Private International Law webpage.