Collecting evidence across international borders

The information below provides a general overview of collecting evidence across international borders in civil and commercial cases.

For more detailed information, see our Collecting evidence in Australia for foreign proceedings and Collecting evidence overseas for Australian proceedings pages.

International agreements

Australia is party to several international agreements that make it easier to collect evidence in Australia for use in civil and commercial cases being heard in other countries, as well as to collect evidence in other countries for cases being heard in Australia. These agreements include:

• the 1970 Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters
• the 1997 Agreement on Judicial Assistance in Civil and Commercial Matters and Co-Operation in Arbitration between Australia and the Kingdom of Thailand
• the 1999 Treaty on Judicial Assistance in Civil and Commercial Matters between Australia and the Republic of Korea.

Many international agreements do not include a definition of what is ‘civil and commercial’. The term is generally considered to include legal disputes involving individuals, families and companies. In Australia, civil proceedings are often any cases that are not criminal. In some types of cases where the distinction is less clear, consider seeking legal advice.

Australia and New Zealand

Australia and New Zealand have an international agreement to streamline the process for managing and resolving civil and criminal cases, where elements of the legal proceedings span both countries.

This is sometimes called the ‘Trans-Tasman Proceedings Regime’ and is implemented in Australian under the Trans-Tasman Proceedings Act 2010 (Cth). New Zealand has many almost identical provisions included in its equivalent piece of legislation and in related laws.

Find out more on our Collecting evidence overseas for Australian proceedings page.

Other ways to collect evidence across international borders

In addition to using a formal Letter of Request under one of these treaties, there are other ways a foreign court, party or person involved in foreign proceedings may be able to obtain evidence in Australia. These include:

• collecting information from publicly available sources
• obtaining evidence from a person who is willing to provide it voluntarily (including by video or audio link)
• applying directly to an Australian court requesting the court to issue a summons for a person to appear and give evidence under Australian law.

Similar mechanisms may exist in other countries, which allow for evidence to be collected for use in cases being heard in Australia. However, some countries may have rules which prohibit foreign people or courts from taking evidence on their territory without the permission of the local authorities. In addition, in cases where there is an applicable international agreement in force between a foreign country and Australia, some foreign countries may require evidence to be collected under that agreement only. Before proceeding, you should check the requirements of the foreign country where the evidence is to be collected.

Our role

The Private International Law (PIL) team within the Attorney-General's Department is Australia's Central Authority for the international agreements mentioned above.

This means we are responsible for processing requests coming into Australia made under treaties. These are requests from foreign courts or applicants seeking to collect evidence in Australia for use in civil or commercial cases overseas.

We are not responsible for outgoing requests. These are requests from Australian courts seeking to obtain evidence from another country for use in Australian proceedings. If you need to take evidence overseas for an Australian case, contact the court handling your matter for advice on how to proceed.

We are only responsible for facilitating the transmission of requests to collect evidence for foreign civil or commercial legal cases. We cannot assist with or provide advice in connection with any underlying legal proceedings. 

If you have received a notice, summons or request to provide evidence for use in foreign legal proceedings, consider obtaining independent legal advice.

Other teams within our department have been designated as Central Authorities for different treaty frameworks:

• If you are looking for Australia’s Central Authority under the Hague Convention on the Civil Aspects of International Child Abduction or the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children, visit our International Family Law page.
• If you are looking for looking for Australia’s Central Authority in international criminal cooperation, visit our International Crime Cooperation Central Authority page.

If you are looking for Australia’s Central Authority for a different treaty, consult the international organisation or treaty depository responsible for that treaty.