Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) In this Act, unless the contrary intention appears:
"adjudicative function" , in relation to a tribunal, means the function of determining the rights or liabilities of a person in a proceeding in which there are 2 or more parties, including the function of making a determination:
(a) altering those rights or liabilities; or
(b) relating to any matters of a kind mentioned in section 48.
(a) in Division 1 of Part 2--an appearance within the meaning of section 14; and
(b) in Division 2 of Part 4--an appearance within the meaning of section 49.
"audio link" means facilities (for example, telephone facilities) that enable audio communication between persons in different places.
"audiovisual link" means facilities that enable audio and visual communication between persons in different places.
"Australia" includes the external Territories.
"authority" means a judge, magistrate, coroner or officer of a court appointed or holding office under a law of a State.
Note: Section 81A alters the meaning of this term for the purposes of Part 5.
"authority of issue" , in relation to a process, means the authority by which the process was issued.
"civil proceeding" means a proceeding other than a criminal proceeding.
"company" means a company incorporated, or taken to be incorporated, under the Corporations Act 2001 .
"court" , except in Part 7, means a court of a State and includes an authority exercising the powers of such a court.
"court of issue" , in relation to a process, means the court by which the process was issued.
(a) a prosecution for an offence; or
(b) a procedure, other than a prosecution, that, under a law of a State, may be used:
(i) to determine liability for an offence; or
(ii) to impose a penalty for an offence; or
(c) a proceeding that is related to or associated with a prosecution for an offence or a procedure mentioned in paragraph ( b);
(d) a claim for compensation; or
(e) a proceeding under proceeds of crime legislation.
"cross-border laws" means the following:
(a) the cross border laws of a participating jurisdiction, within the meaning of the Cross - Border Justice Act 2008 of Western Australia;
(b) the laws of a State, or provisions of a law of a State, that are prescribed by the regulations for the purposes of this paragraph.
"custodian" , in relation to a person in prison, means the officer in charge of the institution or place at which the person is detained.
"evidence that relates to matters of state" means evidence the adducing of which would:
(a) prejudice the security, defence or international relations of Australia ; or
(b) damage relations between the Commonwealth and a State or relations between 2 or more States; or
(c) prejudice the prevention, investigation or prosecution of offences; or
(i) the prevention or investigation of; or
(ii) the conduct of proceedings for recovery of civil penalties brought with respect to;
other contraventions of the law; or
(e) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information in relation to the enforcement or administration of a law of the Commonwealth or of a State; or
(f) prejudice the proper functioning of the government of the Commonwealth or of a State; or
(g) be contrary to the public interest for any other reason that could form the basis for a claim in a judicial proceeding that the evidence should not be disclosed.
"expenses" , in relation to a subpoena, an order under subsection 83(8) or an order under section 86 that is similar to an order under that paragraph, include the reasonable costs of:
(a) necessary travel to and from, and accommodation at, the place where complying with the subpoena or order is required; and
(b) finding, collating and producing a document or thing;
for the purposes of complying with the subpoena or order.
"initiating process" means a process:
(a) by which a proceeding is commenced; or
(b) by reference to which a person becomes a party to a proceeding.
"investigative function" , in relation to a tribunal, means the function of conducting an inquiry other than an inquiry conducted in connection with the performance of an adjudicative function.
(a) a judgment, decree or order given, entered or made by a court in a civil proceeding under which:
(i) a sum of money is made payable; or
(ii) a person is required to do or not to do an act or thing (other than the payment of money);
not being an order made under proceeds of crime legislation (other than a pecuniary penalty order); or
(b) an order made by a court in a criminal proceeding under which:
(i) a sum of money is made payable as a debt due to the Crown in right of the Commonwealth or a State; or
(ii) a person is required to do or not to do an act or thing (other than the payment of money); or
(c) an order made by a court for the forfeiture of bail; or
(i) is made by a tribunal in connection with the performance of an adjudicative function; and
(ii) is enforceable without an order of a court (whether or not the order made by the tribunal must be registered or filed in a court in order to be enforceable); or
(e) an order, decree or judgment registered in a court under the Foreign Judgments Act 1991 or the Trans - Tasman Proceedings Act 2010 ;
whether or not the judgment, decree or order is final, but does not include:
(f) a judgment, decree or order of a court of a foreign country that has been registered in a court in Australia otherwise than under the Foreign Judgments Act 1991 or the Trans - Tasman Proceedings Act 2010 ; or
(g) an order, however described, imposing a fine; or
(h) an order relating to the granting of probate or letters of administration or the administration of the estate of a deceased person; or
(i) an order relating to the guardianship of a person who is incapable of managing his or her personal affairs; or
(j) an order relating to the management of the property of a person who is incapable of managing that property; or
(k) an order relating to the care, control or welfare of a child; or
(l) an order that, if contravened by the person to whom it is directed, will render the person liable to conviction for an offence in the State in which the order was made.
"magistrate" , except in sections 57 and 67, includes:
(a) a justice of the peace who has power to issue warrants under a law of the State in which the justice holds that office; and
(b) a person who is appointed under section 120 of the Magistrates' Court Act 1989 of Victoria as a bail justice or is a bail justice because of holding a prescribed office within the meaning of section 121 of that Act.
"order for production" means an order made under section 39, 67 or 79.
"person under restraint" means a person who:
(b) has been conditionally released from prison (whether on parole, licence, work release, home detention or otherwise) before the end of a term of imprisonment to which he or she has been sentenced; or
(c) is subject to the supervision of another person under a probation order; or
(d) is serving a period of home detention or a term of imprisonment by way of periodic detention; or
(i) a community service order; or
(ii) a community based order; or
(iv) a work and development order; or
(v) any other restriction on his or her movements, imposed by law or by order of a court, that is inconsistent with the person complying with a subpoena served on the person under this Act;
but does not include a person who is in prison.
"place of issue" , in relation to a process, means the State in which the process was issued.
"prescribed" means prescribed by the regulations or by rules regulating the practice and procedure of a court.
"prison" includes a gaol, lock - up or other place of detention.
"proceeding" , except in Part 4, means a proceeding in a court or before an authority (other than a tribunal that is an authority) and includes:
(a) an interlocutory or similar proceeding; and
(b) a proceeding heard in chambers.
"proceeds of crime legislation" means:
(a) the Proceeds of Crime Act 1987 ; or
(b) the Proceeds of Crime Act 2002 ; or
(c) a law of a State that is a corresponding law within the meaning of the Proceeds of Crime Act 2002 .
"registered body" has the same meaning as it has in section 601CX of the Corporations Act 2001 .
"State" includes the meaning given in section 5.
"subpoena" , except in Part 4, means a process that requires a person to do one or both of the following:
(a) to give oral evidence before a court, authority or person;
(b) to produce a document or thing to a court, authority or person;
but does not include a process that requires a person to produce a document in connection with discovery and inspection of documents.
(a) a person appointed by the Governor of a State, or by or under a law of a State; or
(b) a body established by or under a law of a State;
and authorised by or under a law of the State to take evidence on oath or affirmation, but does not include:
(c) a court; or
(d) a person exercising a power conferred on the person as a judge, magistrate, coroner or officer of a court.
Note: Section 81A alters the meaning of this term for the purposes of Part 5.
"warrant" (except in the definition of authority in section 81A) means a process issued by a court, authority or tribunal in accordance with:
(b) the provisions of such a law as applied by subsection 68(1) of the Judiciary Act 1903 ;
that authorises the apprehension of a person.
Note: Section 81A alters the meaning of this term for the purposes of Part 5.
(2) For the purposes of the definition of tribunal in subsection ( 1), a body is taken to be authorised by or under a law of a State to take evidence on oath or affirmation if a member of the body is authorised, by or under the law by or under which the body was established, to take evidence on oath or affirmation.
(3) A reference in this Act to a subpoena issued by a court or tribunal is a reference to a subpoena issued by or out of the court or tribunal.
(4) A reference in this Act to allowances and travelling expenses includes a reference to vouchers tendered in substitution for the whole or part of those allowances and travelling expenses.
(5) A reference in this Act to a law of the Commonwealth or a State is a reference to a law (whether written or unwritten) of or in force in the Commonwealth or the State, as the case may be.
(6) A reference in this Act to a person who is in prison does not include a reference to a person who is serving a term of imprisonment by way of periodic detention.
(7) For the purposes of this Act, if a Territory does not have
its own police force, the police force performing the policing functions of
the Territory is taken to be the police force of the Territory.