The Guides to Social Policy Law is a collection of publications designed to assist decision makers administering social policy law. The information contained in this publication is intended only as a guide to relevant legislation/policy. The information is accurate as at the date listed at the bottom of the page, but may be subject to change. To discuss individual circumstances please contact Services Australia.

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, Schedule 1

Public Service Act 1999 section 13

Public Service Regulations 2023 Part 2

CSRC Act section 16

CSA Act section 150

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

FL Act section 67J

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rule 6.09, rule 6.18, rule 6.30, Part 6.5

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 (Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rule 6.41).

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. If the subpoena is in relation to giving evidence in court, the subpoena must be served personally (Federal Circuit and Family Court of Australia (Family Law) Rules rule 6.30, Division 2.6.2).

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

A subpoena is generally required to be served at least 7 days before the person is required to produce the documents to the court, or attend the court to give evidence. 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 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 (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 & Australian 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 (section 14 and Australian Privacy Principle 6 of Schedule 1). 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 Part 2). 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 (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 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: Petra has applied to the Federal Circuit and Family Court of Australia for a declaration under CSA Act section 106A that Lewis should be assessed in respect of the costs of the child because Lewis is a parent of the child, and therefore Petra would be entitled to an assessment of child support payable by Lewis. The Federal Circuit and Family Court of Australia issues a subpoena, at Petra's request, requiring the Registrar to produce documents that include information from financial institutions about Lewis'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 (Federal Circuit and Family Court of Australia (Family Law) Rules rule 6.09, rule 6.18).

A notice to produce documents is different from a subpoena as it requires that the specified documents be provided 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 question

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)) (6.3).

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