Commonwealth Consolidated Acts

SERVICE AND EXECUTION OF PROCESS ACT 1992 - SECT 36

  (1)   Service of a subpoena under this Division on a person under restraint does not relieve the person from a restriction or obligation imposed by or under a law of a State on the person because the person is a person under restraint.

  (2)   Subject to subsection   ( 3), action may not be taken against a person under restraint in respect of failure to comply with a subpoena served on the person under this Division if:

  (a)   by leaving, or remaining outside, the State in which the person is under restraint, or a particular place in the State, in order to comply with the subpoena, the person might breach a restriction, or be unable to comply with an obligation, imposed on the person by or under the order or restriction to which the person is subject; and

  (b)   as soon as practicable after being served with the subpoena, the person:

  (i)   has informed the person's supervisor of the service of the subpoena; and

  (ii)   has informed the person (if any) at whose request the subpoena was issued, and the court of issue or authority of issue, of the restriction or obligation; and

  (c)   unless the law of the State does not permit the restriction or obligation to be varied so as to allow the person to comply with the subpoena--the person has taken such steps as are, in all the circumstances (including, in particular, the time left for compliance), reasonable to have the restriction or obligation varied so as to allow the person so to comply; and

  (d)   the person does not succeed in the steps (if any) taken by the person in order to have the restriction or obligation varied in time reasonably to allow compliance with the subpoena; and

  (e)   the person has, as soon as practicable, informed the person (if any) at whose request the subpoena was issued, and the court of issue or authority of issue:

  (i)   of any steps the person took in an attempt to have the restriction or obligation varied, and that the restriction or obligation has not been varied; or

  (ii)   that the law of the State does not permit such a variation;

    as the case requires.

  (3)   Subsection   ( 2) does not apply to action taken under this Act in relation to failure to comply with the subpoena.

  (4)   The reference in subparagraph   ( 2)(b)(i) to the supervisor of a person under restraint is a reference to:

  (a)   if the person under restraint is on bail subject to a condition that he or she periodically reports to the police--any police officer at the police station at which he or she is required to report; or

  (b)   if the person under restraint is on bail subject to a condition that he or she periodically reports to an officer of a correction service of a State--that officer; or

  (c)   in any other case--the person who, under a law of a State or the order of a court, supervises compliance with the order or restriction to which the person under restraint is subject.

  (5)   A reference in subsection   ( 2) to varying a restriction or obligation so as to allow a person to comply with a subpoena includes a reference to giving a consent or permission so as to allow the person so to comply.