Foreign Proceedings (Prohibition of Certain Evidence) Act 1976

Legislation au C2004A01552 Not in force Act

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FOREIGN PROCEEDINGS (PROHIBITION OF CERTAIN EVIDENCE) ACT 1976

No. 121 of 1976

An Act to make provision for Preventing the Production of Certain Documents, and the giving of Certain Evidence, for the purposes of Proceedings in Foreign Courts.

BE IT ENACTED by the Queen, and the Senate and House of Representatives of the Commonwealth of Australia, as follows:—

Short title.

1. This Act may be cited as the Foreign Proceedings (Prohibition of Certain Evidence) Act 1976.

Commencement.

2. This Act shall come into operation on the day on which it receives that Royal Assent.

Definitions.

3. In this Act, unless the contrary intention appears—

“document” includes any writing and also includes any disc, tape or device on which information is recorded or stored, whether originally or by way of a copy;

“foreign tribunal” means any tribunal of a country outside Australia or a part of such a country;

“tribunal” includes a court or a grand jury and also includes any authority, officer, examiner or person having authority to take or receive evidence, whether on behalf of a court or otherwise.

Exercise of powers.

4. (1) The Attorney-General shall exercise his powers under this Act so as to impose restrictions only where he is satisfied that—

(a) a foreign tribunal is exercising or proposing or likely to exercise jurisdiction or powers of a kind or in a manner not consistent with international law or comity in proceedings having a relevance to matters to which the laws or executive powers of the Commonwealth relate; or

(b) the imposition of the restrictions is desirable for the purpose of protecting the national interest in relation to matters to which the laws or executive powers of the Commonwealth relate.

(2) The validity of any exercise, or refusal of the exercise, of any power of the Attorney-General under this Act is not affected by, and shall not be subject to challenge in any court by reason of, any failure to comply with the provisions of this section.

Orders.

5. (1) The Attorney-General may, by order in writing, prohibit, except with his consent in writing or as otherwise permitted by the order—

(a) the production in, or for the purposes of, a foreign tribunal of documents that, at the time of the making of the order or at any time while the order remains in force, are in Australia;

(b) the doing of any act in Australia, in relation to documents that, at the time of the making of the order or at any time while the order remains in force, are in Australia, with the intention that the act will result, or where there is reason to believe that the act will, or is likely to, result, in the documents, or evidence of the contents of the documents, being produced or given in, or for the purposes of, a foreign tribunal;

(c) the giving by a person, at a time when he is an Australian citizen or is a resident of Australia, of evidence before a foreign tribunal in relation to, or to the contents of, documents that, at the time of the making of the order or at any time while the order is in force, are in Australia; or

(d) the production of documents before a tribunal in Australia or the giving of evidence, whether in relation to the contents of documents or otherwise, before a tribunal in Australia, for the purposes of proceedings in a foreign tribunal.


(2) An order under this section may—

(a) be directed to a particular person, to persons included in a class of persons or to persons generally;

(b) relate to a particular foreign tribunal, to a class of foreign tribunals or to foreign tribunals generally; and

(b) relate to particular documents or to documents included in a class of documents.

Service of orders.

6. (1) An order under this Act—

(a) may be published in the Gazette, in which case it shall be deemed to have been served on the person or persons to whom it is directed on the date of publication; or

(b) may be served on a person to whom it is directed by serving the order, or a copy of the order, on that person personally or by sending it by post to that person at the place of residence of that person last known to the Attorney-General or at a place of business of that person, or of a company of which that person is a director or officer.

(2) An order revoking or varying an order under this Act may be served on a person to whom the second-mentioned order applies in a manner specified in sub-section (1) and takes effect, in relation to such a person, upon being so served.

7. (1) A person shall not contravene an order under this Act that is Offences, applicable to him and has been served on him.

Penalty: In the case of an individual, a fine of $5,000 or imprisonment for 6 months or in the case of a company a fine of $10,000.

(2) A provision of the Judiciary Act 1903 by which a court of a State is invested with jurisdiction with respect to offences against the laws of the Commonwealth has effect, in relation to offences against this Act committed outside Australia, as if that jurisdiction were so invested without limitation as to locality.

 

Overview

The Foreign Proceedings (Prohibition of Certain Evidence) Act 1976 (C2004A01552) was enacted to address the issue of foreign courts demanding evidence or documents that are within Australia, which may conflict with Australian sovereignty and international comity. The Act was introduced by the Australian Parliament to empower the Attorney-General to restrict the production and giving of evidence in foreign proceedings that could harm Australia's national interests. The underlying policy objective is to ensure that Australian laws and interests are protected against unwarranted foreign judicial actions, thereby upholding the principles of international law and comity. This legislation provides a legal framework for the Attorney-General to issue orders prohibiting the production of documents and the giving of evidence in foreign tribunals under specific circumstances, with potential penalties for non-compliance.

Scope and Application

The Foreign Proceedings (Prohibition of Certain Evidence) Act 1976 applies to individuals and entities, including Australian citizens and residents, as well as corporations and other bodies, when their actions pertain to documents in Australia that are relevant to proceedings in foreign tribunals. This legislation is concerned with preventing the production of specific documents and the giving of certain evidence in foreign courts, thereby safeguarding Australian interests and ensuring compliance with international law and comity. The Act extends to the Commonwealth of Australia and can be applied to any foreign tribunal situated outside Australia or in any part of a foreign country. It provides the Attorney-General with the authority to impose restrictions and issue orders prohibiting certain actions related to documents in Australia that might be used in foreign tribunals, including the production of documents, the giving of evidence, and acts intended to produce or provide such evidence. The Act does not specify exclusions or exemptions, and its application may be extended or restricted through subordinate instruments issued by the Attorney-General. The penalties for contravening the Act are significant, with fines and imprisonment for individuals, and higher fines for companies.

Key Provisions

The Foreign Proceedings (Prohibition of Certain Evidence) Act 1976 (the "Act") establishes mechanisms to prevent certain documents from being produced and certain evidence from being given in foreign tribunals. Section 4 outlines the exercise of powers by the Attorney-General, who is authorised to impose restrictions on the production of documents and the giving of evidence if satisfied that a foreign tribunal's jurisdiction or proceedings are inconsistent with international law or comity, or if the restrictions are necessary to protect the national interest (subsection 4(1)). Section 5 provides that the Attorney-General may issue written orders prohibiting the production of documents in, or for the purposes of, foreign tribunals, as well as prohibiting certain acts and the giving of evidence by Australian citizens or residents in relation to Australian documents, unless permitted by the order or by written consent of the Attorney-General. These orders can target specific individuals, classes of individuals, particular foreign tribunals, or broader categories, and can be tailored to specific documents or classes of documents (subsection 5(2)). The Act also specifies how such orders may be served, either by publication in the Gazette or by personal service or by post, as outlined in section 6. Under the Act, the obligations on individuals and entities are primarily to comply with any orders issued by the Attorney-General. Section 7(1) makes it an offence to contravene an applicable order that has been served on an individual, with penalties of a fine of up to $5,000 or imprisonment for six months for individuals, and a fine of up to $10,000 for companies (subsection 7(1)). Additionally, section 7(2) extends the jurisdiction of State courts to hear offences against this Act committed outside Australia, ensuring that individuals and entities cannot evade the consequences of non-compliance by being outside the jurisdiction of Australian courts. The penalties for breach of the Act are significant. For individuals, a contravention of an applicable order can result in a fine of up to $5,000 or imprisonment for six months (subsection 7(1)). Companies face a higher financial penalty, with a maximum fine of $10,000 for contravening an order. Furthermore, section 7(2) ensures that Australian courts can exercise jurisdiction over offences committed outside Australia, thereby preventing avoidance of legal consequences by situating proceedings or operations outside the country. This provision underscores the seriousness with which the Act treats compliance and the potential ramifications for those who fail to adhere to its requirements.

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Area of Law
Evidence Law
International Law
Instrument
Act
Concepts
Definitions & Interpretation
Offence Provisions
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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.