6.4.1 Subpoenas & Notices to Produce Documents

Context

A court may issue a subpoena which requires the Registrar to produce information about a person. The Registrar may also be served with a notice to produce documents to a party to court proceedings.

Act references

Privacy Act 1988 section 14

Public Service Act 1999 section 13

Public Service Regulations 1999 (APS Code of Conduct) regulation 2.1

CSRC Act section 16

CSA Act section 150

Service and Execution of Process Act 1992 section 32, section 35

Family Law Rules 2004 Part 13.5, Part 15.3

Federal Circuit Court Rules 2001 Part 6, Division 15.3

On this page

What is a subpoena?

A subpoena is a court document issued at the request of a party to court proceedings. A subpoena requires a person to produce documents or to attend court to give evidence in those proceedings. A subpoena is an order for someone to provide information to a court. It does not require them to provide the information to a party to the court proceedings.

A court can impose penalties upon a person who fails to comply with a subpoena. This can include a warrant for the person's arrest (Family Law Rules 2004 rule 15.36, Federal Circuit Court Rules 2001 rule 15A.16).

When is a subpoena valid?

A subpoena is valid if:

  • it is served properly, and
  • the person who asked the court to issue it provides conduct money.

The person who asked the court to issue the subpoena is responsible for serving it. They do this by delivering a sealed copy of the subpoena to the person who is required to attend court to give evidence or provide copies of documents. Under the Family Law Rules (rule 15.22) a subpoena cannot be served on a person by mail. However, in the Federal Circuit Court a subpoena which requires the production of documents, rather than attendance in court, can be served by mail or facsimile (Federal Circuit Court Rules Part 6).

Where the subpoena requires the Registrar to produce documents, another officer can accept service on the Registrar's behalf.

Where the subpoena requires a person to attend court to give evidence, an officer will contact that person to arrange for them to accept service personally.

A subpoena is generally required to be served no less than 7 days before the person is required to produce the documents to the court, or attend the court to give evidence. However, some Acts and Court Rules allow a subpoena to be served less than 7 days before the date the documents or evidence are required. In practice this occurs relatively frequently. If insufficient time has been given to comply with a subpoena or the date nominated is highly inconvenient, an extension of time for complying with the subpoena can be sought.

The person named in the subpoena is entitled to 'conduct money' from the person who asked the court to issue it. Conduct money is an amount sufficient to cover the cost of the named person's return travel to the court from home or their place of employment, as appropriate. It is not meant to cover the cost of searching, collating or copying documents. The Registrar will pay conduct money into consolidated revenue and will refund any conduct money to the person if they decide not to call on the subpoena.

When will the Registrar comply with a subpoena?

The Registrar will comply with a valid subpoena by providing documents or evidence to a court:

In deciding whether to comply, the Registrar has to take into account obligations to protect personal information under the:

Secrecy provisions in the child support legislation

It is an offence for an officer or employee to provide protected information about a person to another person. Protected information is any personal information that employees or contractors obtain in the course of their duties (see 6.3).

It is not an offence under the child support legislation for an employee to provide information to a court, because a court is not a person (FCT v Nestle (1986) 69 ALR 445). However, unless the information is necessary for the purposes of the child support legislation, the Registrar is not required to provide it (CSRC Act section 16(5) and CSA Act section 150(5)). This means that the Registrar can be required to comply with a subpoena that relates to an action under the child support legislation, but only where the documents or information required is necessary for the purposes of that legislation.

Privacy Act & privacy principles

The Privacy Act permits disclosure of personal information if the disclosure is authorised by law. If the Registrar provides information to a court under a subpoena this does not breach the Privacy Act (Australian Privacy Principle 6, or APP 6). The information is required by law under the subpoena and the secrecy provisions in the child support legislation do not prevent the release of information to a court.

Public Service Act & Regulations

The Public Service Act and Regulations set out a code of conduct for employees in the Australian Public Service (Public Service Act section 13 and Public Service Regulations regulation 2.1). An officer or employee must not give or disclose information they obtained in the course of their duties to any person, directly or indirectly, except if they do so in the course of their duties.

If an officer provides information to a court under a subpoena they must comply with their responsibilities under the Public Service Act.

When is the Registrar required to provide information or documents to a court?

The Registrar is required to comply with a subpoena that relates to an action under the child support legislation, but only where the documents or information required are necessary for the purposes of that legislation (CSRC Act section 16(5) and CSA Act section 150(5)).

When served with a subpoena, the Registrar must establish whether the subpoena relates to proceedings taken by either the payer or payee that are for the purposes of the CSA Act or the CSRC Act. The term 'purpose' is not defined in the legislation.

Generally, it will mean that the application to the court is brought under one of the provisions of the CSA Act or the CSRC Act. An application for judicial review of a decision under the CSA Act or the CSRC Act would also be proceedings for the purposes of the child support legislation (see 4.3).

Proceedings under the FL Act such as those relating to property settlements, are not proceedings for the purposes of the child support legislation, even though the result may have some effect on the person's child support.

Secondly, the Registrar need only provide protected documents that contain personal information about the other parent in the case to the court if it is necessary for the purposes of the child support legislation. The Full Court of the Family Court in 'Furnari and Clark' (Melbourne, 16 June 2003, unreported) held that notes made by a decision-maker in relation to decisions about a change of assessment and non-agency payments were not necessary for an application for a departure from the assessment or an appeal. Finn J commented that the terms of a subpoena were extremely wide and that any subpoena to the Registrar 'should be drawn with particularity' (cf National Crime Authority v Gould & Anor (1989) 90 ALR 489).

The Registrar will carefully examine the documents required by a subpoena to decide whether they are necessary for the purposes of the child support legislation. What is necessary will depend on the nature of the document and the type of proceedings.

Example: M has applied to the Federal Circuit Court for a declaration that F is not entitled to an assessment of child support payable by M under CSA Act section 107. The Federal Circuit Court issues a subpoena, at M's request, requiring the Registrar to produce documents that include information from financial institutions about F's loans and accounts. Financial information is not relevant to these proceedings. Even though there are proceedings under the CSA Act the information is not necessary for the purposes of that Act.

When will it be in the public interest for the Registrar to comply with a subpoena?

There may be occasions where the Registrar is not required to comply with a subpoena under CSRC Act section 16(5) or CSA Act section 150(5) but it would be in the public interest for the Registrar to provide the information to the court. As the secrecy provisions in the child support legislation and the provisions of the Privacy Act and the Public Service Act and regulations do not prevent the Registrar from providing information to a court, the Registrar may provide information to a court under a subpoena if the interests of justice outweigh the interference with personal privacy.

The form in which the Registrar will provide information to the court

In all cases where a person has indicated that they intend to call on a subpoena, the Registrar will gather all relevant original documents, or copies, containing the information covered by the subpoena and bring, or send, them to the court. If documents provided to the court contain protected information, the Registrar will advise the court of the nature of the information and any known sensitivities.

The Registrar will formally oppose production of any material not necessary for the purposes of the child support legislation or may apply to the court to have the subpoena set aside if the information sought is not relevant, is oppressive or too burdensome, is too wide, or is privileged.

The Registrar will usually be legally represented and will seek an order for legal costs for appearance in court.

The Registry of the court that issued the subpoena will hold any documents that the Registrar produces until the proceedings are finalised.

What is a notice to produce documents?

The Registrar may also be served with a notice to produce documents. For instance, a party to court proceedings in the Family Court, or a court operating under the Family Law Rules, may serve a Notice of Non-party Production of Documents on a person who is not party to the matter (Rule 13.33 Family Law Rules).

A notice to produce documents is different from a subpoena as it requires the non-party to provide the documents specified to the requesting party rather than a court. Notices to produce are also usually issued in preliminary stages of court proceedings.

The requesting party is required to serve a copy of the notice to produce on the other parties in the matter. Both the person served and the other parties are given an opportunity to object to the court.

If the documents requested in a notice to produce contain protected information about another person (see Secrecy provisions in the child support legislation, above), the Registrar cannot produce them to the requesting party. Where the Registrar is not able to comply, the Registrar will object to production of the documents sought. The Registrar will usually be legally represented and will seek an order for legal costs for appearance in court.

Frequently asked questions

Is a Commonwealth information order or a location order the same as a subpoena?

No. A court can make an order requiring the Registrar to provide information about a child's location (FL Act section 67J). These orders are referred to as Commonwealth information orders or location orders. The secrecy provisions in the child support legislation also make it clear that the Registrar must comply with Commonwealth information orders or location orders (CSRC Act section 16(9) and CSA Act section 150(9)) (see 6.3).

Last reviewed: 21 September 2015