Document ID: chunk:federal_register_of_legislation:C2018C00175:section:44
Version: federal_register_of_legislation:C2018C00175
Segment Type: section
Provision Reference: s 44
Character Range: 58688–61053

44  Application for relief from order for production
 (1) Subject to subsection (2), the court or authority that made the order for production may, on application by the custodian or the prisoner, set aside or vary the order.
 (2) The prisoner may only make an application on the ground that compliance with the order would have a substantial detrimental effect on his or her health or safety.
 (3) Without limiting the ways in which, under the law of the place of issue, the application may be made, it may be made by transmitting the application to the court or authority by fax.
 (4) Within 24 hours after making the application, the applicant must cause copies of the application to be served:
 (a) on the person (if any) at whose request the subpoena was issued at the person's address for service; and
 (b) if the applicant is the custodian—on the prisoner; and
 (c) if the applicant is the prisoner—on the custodian.
 (5) For the purposes of calculating the 24 hour period, a day that is:
 (a) a Saturday; or
 (b) a Sunday; or
 (c) a public holiday or bank holiday in the place in which the application is to be served;
does not count.
 (6) Without limiting the ways in which, under the law of the place of issue, service on the person under paragraph (4)(a) may be effected, it may be effected by transmitting the copy to that address by fax.
 (7) Without limiting the matters that the court or authority may take into account in determining the application, the court or authority is to take into account:
 (a) public safety; and
 (b) the prisoner's health and safety.
 (8) The court or authority may determine the application without a hearing unless the custodian, the prisoner, or the person (if any) at whose request the subpoena was issued, objects.
 (9) For the purposes of determining the application, the court or authority may hold a hearing by audio link or audiovisual link.
 (10) A person who is entitled to practise as a barrister, solicitor or both before a court in:
 (a) the place of issue of the subpoena; or
 (b) another State in which a person is participating in the hearing by audio link or audiovisual link;
has a right of audience before the court or authority at the hearing.
 (11) If the court or authority sets aside or varies the order for production, it is to make any necessary consequential order in respect of the subpoena.