Statutory Rules 1993
No. 241 1
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Mutual Assistance in Criminal Matters (Republic of Portugal)
Regulations
I, The Governor-General of the Commonwealth of Australia, acting with the advice of the
Federal Executive Council, make the following Regulations under the Mutual
Assistance in Criminal Matters Act 1987.
Dated
15 September 1993.
BILL
HAYDEN
Governor-General
By His
Excellency’s Command,
M.
LAVARCH
Attorney-General
____________
Citation
1. These Regulations may be cited as the Mutual
Assistance in Criminal Matters (Republic of Portugal) Regulations.
Commencement
2. These Regulations commence on 17 October
1993.
Interpretation
3. In these Regulations:
“Act” means the Mutual Assistance in Criminal
Matters Act 1987;
“Treaty” means the Treaty between Australia and the
Republic of Portugal done at Lisbon on 4 July 1989, a copy of the English text
of which is set out in the Schedule.
Application of the Act
4. The Act applies in relation to the Republic
of Portugal subject to such limitations, conditions, exceptions or
qualifications as are necessary to give effect to the Treaty.
___________________
SCHEDULE Regulation 3
TREATY BETWEEN
AUSTRALIA AND
THE REPUBLIC OF
PORTUGAL
ON MUTUAL ASSISTANCE
IN CRIMINAL MATTERS
AUSTRALIA and the REPUBLIC OF PORTUGAL DESIRING to make more
effective the cooperation of the two countries in combating crime by extending
to each other the widest measure of mutual assistance in criminal matters, HAVE
AGREED as follows:
ARTICLE 1
(Scope of
Application)
1. The
Contracting Parties shall, in accordance with this Treaty, grant to each other
assistance in investigations or proceedings in respect of offences within the
jurisdiction of the judicial authorities of the Requesting Party at the time
when assistance is requested.
SCHEDULE—continued
2. This
Treaty does not apply to arrests, the enforcement of sentences or offences
under military law which are not offences under ordinary criminal law.
ARTICLE 2
(Dual Criminality)
1. Assistance
may be given even if the offence is not an offence under the law of the
Requested Party, except in the case of a request for search and seizure of
property. In such a case it shall be
necessary that the offence in respect of which assistance is requested shall
also be an offence under the law of the Requested Party.
2. In
relation to fiscal offences, assistance may also be given if the acts or
omissions constituting the offence amount to an offence of the same nature
under the law of the Requested Party.
Assistance may not be refused on the grounds that the law of the
Requested Party does not impose the same kind of tax or duty or does not
contain a tax or duty, customs or exchange regulation of the same kind as the
law of the Requesting Party.
3. For the
purpose of this Article, in determining whether an offence is an offence under
the laws of both Contracting Parties it shall not matter whether the laws of
the Contracting Parties place the acts or omissions constituting the offence
within the same category of offence or denominate the offence by the same
terminology.
ARTICLE 3
(Refusal of
Assistance)
1. Assistance
shall be refused if the Requested Party considers that:
- a)
the request relates to a political offence or
an offence connected with a political offence; or
- b)
to comply with the request would impair its
sovereignty, security, ordre public or its other essential interests; or
SCHEDULE—continued
- c)
there are substantial grounds for believing
that the request for assistance has been made to facilitate the prosecution of
a person on account of that person's race, sex, religion, nationality or
political opinions or that that person's position may be prejudiced for any of
these reasons.
2. Assistance
may be refused if the Requested Party considers that there are any other
substantial grounds that would make the granting of assistance unreasonable.
3. Before
refusing to grant a request for assistance the Requested Party shall consider
whether assistance may be granted subject to such conditions as it deems
necessary. If the Requesting Party
accepts assistance subject to these conditions, it shall comply with the
conditions.
4. The
Requested Party shall promptly inform the Requesting Party of a decision of the
Requested Party not to comply in whole or in part with a request for assistance
and the reasons for that decision.
ARTICLE 4
(Law Applicable)
Requests for assistance shall be carried out in accordance
with the law of the Requested Party and in the manner requested by the
Requesting Party insofar as it is not incompatible with the law of the
Requested Party.
ARTICLE 5
(Execution of
Requests)
1. In
response to a request, the Requested Party:
SCHEDULE—continued
- b)
may refuse or postpone the delivery of
material or original documents if its law does not permit it, or if the
material or documents are required for proceedings within its jurisdiction; and
- c)
shall notify the Requesting Party of the
results of the request, and, if requested, of the proposed date and place of
execution of the request, and the entitlement, if any, of persons to be
present.
2. The
Requesting Party shall return the material and documents provided in a response
to a request as soon as possible unless the Requested Party, without prejudice
to its rights or the rights of third parties, waives its return.
ARTICLE 6
(Service of
Documents)
1. The
Requested Party shall serve judicial decisions or any other documents relating
to proceedings which are transmitted to it for that purpose by the Requesting
Party.
2. The
Requested Party may effect service of any document by mail or, if the
Requesting Party so requests, in any other manner required by the law of the
Requesting Party which is not inconsistent with the law of the Requested Party.
3. The
Requested Party shall forward to the Requesting Party proof of service of the
documents. If service cannot be
effected, the Requesting Party shall be so informed and advised of the reasons.
ARTICLE 7
(Appearance of
Witnesses or Experts)
1. If the Requesting Party requests the
assistance of the Requested Party in obtaining in the territory of the
Requested Party the evidence of witnesses or experts, the Requested Party
shall, subject
SCHEDULE—continued
to its laws, arrange for the evidence of that witness or
expert to be obtained.
2. Where
the Requesting Party seeks the attendance of a witness or expert in its
territory, it may request the Requested Party to assist in making that person
available. The Requested Party shall, if
satisfied that:
- a)
satisfactory arrangements for the security of
the person are made;
- b)
the person whose attendance is sought
consents; and
- c)
any coercive measures or penalties specified
in the summons shall be without effect if the person does not consent;
effect service of the summons.
3. A
request for service of a summons under paragraph 2 of this Article shall state
the allowances, travelling and subsistence expenses payable and shall be made
so that it is received within 45 days before the date on which the person is to
appear. In urgent cases the Requested Party may waive the requirement of 45
days.
ARTICLE 8
(Appearance of
Persons in Custody)
1. If the
Requesting Party seeks the attendance as a witness in its territory of a person
who is in custody in the territory of the Requested Party, the Requested Party
shall, if satisfied that:
transfer that person, in custody, to the Requesting Party.
2. The
Requesting Party shall, subject to paragraph 3 of this Article, hold the
transferred person in custody and return that person in custody to the
Requested Party either:
SCHEDULE—continued
3. Where
the sentence imposed on a person transferred under this Article expires whilst
the person is in the territory of the Requesting Party, that person shall be
set at liberty and thereafter treated as a person referred to in Article 7.
4. A
person in custody who does not consent to be available to give evidence
pursuant to this Article shall not, by reason thereof, be liable to any penalty
or be submitted to any coercive measure.
ARTICLE 9
(Immunities and
Privileges)
1. Any
person who attends in the territory of the Requesting Party pursuant to Article
7 and 8 shall not:
- a)
be detained, prosecuted, or punished by that
Party for any offence or be subject to any civil suit in the territory of that
Party in respect of any act or omission which preceded that person's departure
from the territory of the Requested Party; or
- b)
without that person’s consent, be required to
give evidence in any proceeding other than the proceeding to which the request
relates.
2. The
immunity provided for in paragraph 1 of this Article shall cease if the person
voluntarily remains in the territory of the Requesting Party more than 45 days
after the date on which the presence of that person is no longer required or,
having left, has voluntarily returned.
3. A
person present in the territory of the Requesting Party pursuant to a request
under Articles 7 and 8 shall not be subject to prosecution based on the
testimony given but shall be subject to the laws of that Party in relation to
the refusal to give evidence and giving evidence which is untrue.
SCHEDULE—continued
4. Notwithstanding
paragraph 3 of this Article a person who is required to give evidence pursuant
to a request for assistance may decline to give evidence where either:
- a)
the law of the Requested Party would permit
that person to decline to give evidence in similar circumstances in proceedings
which originated in the territory of the Requested Party; or
- b)
where the law of the Requesting Party would
permit the person to decline to give evidence in such proceedings in the
territory of the Requesting Party.
5. Where a
person giving evidence in the territory of one Party claims that there is a
right to decline to give evidence under the law of the other Party, a
certificate of that other Party shall conclusively determine that issue.
ARTICLE 10
(Proceeds of Crime)
1. The
Requested Party shall, upon request, endeavour to ascertain whether any
proceeds of the crime alleged are located within its jurisdiction and shall
notify the Requesting Party of the results of its inquiries. In making the request, the Requesting Party
shall notify the Requested Party of the basis of its belief that such proceeds
may be located in its jurisdiction.
2. The
Requested Party shall, if its laws permit, arrange for a confiscation order
relating to the proceeds of crime or any other measure having similar effect
made by a Court of the Requesting Party to be given effect.
3. Where
the Requesting Party notified its intention to seek the enforcement of a
confiscation order or a similar measure, the Requested Party shall take such
measures consistent with its law to prevent any dealing in, transfer or
disposal of, the property which is or may be affected by those orders.
SCHEDULE—continued
4. Proceeds
confiscated pursuant to this Treaty shall be retained by the Requested Party,
unless otherwise mutually decided in a particular case.
5. In the
application of this Article the rights of bona fide third parties shall be
respected under the law of the Requested Party.
6. This
Article also applies to property used in the commission of the offence.
ARTICLE 11
(Information on
Sentences and Criminal Records)
1. The Parties shall, as far as possible, notify
each other of any penalties of imprisonment imposed on the nationals of the
other Party.
2. Either
Party may request details of the criminal record of a person. The Requesting Party shall state the reasons
for the request. The Requested Party
shall grant the request insofar as its authorities can obtain this information
in accordance with its law.
ARTICLE 12
(Central Office)
1. Each
Party shall designate a Central Office to send and receive requests and other
communications relating to mutual assistance pursuant to this Treaty.
2. A
Central Office receiving a request for assistance shall refer it to the
appropriate authorities for execution and shall transmit the response or
results of the request to the Central Office of the other Party.
SCHEDULE—continued
3. The
Central Office of Australia shall be the Attorney-General's Department,
Canberra and the Central Office of the Republic of Portugal shall be the
Procuradoria-Geral da República, Lisbon.
ARTICLE 13
(Requirements for the
Request for Assistance)
1. A
request for assistance shall be signed by the Central Office and shall include
the following:
- a)
the name of the authority on whose behalf the
request is made;
- b)
a precise description of the assistance
requested;
- c)
a statement of the offence to which the
request relates, a brief description of the acts or omissions constituting the
offence and information on the date and place where it occurred;
- d)
to the extent possible, the identity and
nationality of the person or persons who are the subject of the investigation
or proceeding referred to in the request;
- e)
in cases of service of judicial decisions or
any other documents or notifications the name and address, if known, of the
person to be served or notified;
- f)
any requirement for authentication;
- g)
details of any particular procedure or
requirement that the Requesting Party wishes to be followed including
confidentiality and time limits to be observed.
2. The
Requesting Party shall send additional information required by the Requested
Party as necessary to execute the request.
ARTICLE 14
(Authentication)
Where authentication is requested, material or documents are
authenticated for the purpose of this Treaty if:
SCHEDULE—continued
- a)
it purports to be signed or certified by a
Judge, Magistrate or officer in or of the Sending Party; and
- b)
it purports to be sealed with an official or
public seal of the Sending Party or of a Minister of State, or of a Department
or officer of the Government, of the Sending Party.
ARTICLE 15
(Language)
Requests, supporting documents and other communications made
pursuant to this Treaty shall be in the language of the Requesting Party and
accompanied by a translation into the language of the Requested Party.
ARTICLE 16
(Other Assistance)
This Treaty shall not derogate from obligations subsisting
between the Contracting Parties whether pursuant to other treaties or
arrangements or otherwise nor prevent the Contracting Parties providing
assistance to each other pursuant to other treaties or arrangements.
ARTICLE 17
(Protecting
Confidentiality and Restricting Use of Evidence and Information)
1. The
Requested Party, if so requested, shall keep the application for assistance,
the contents of a request and its supporting documents, and the fact of
granting of such assistance, confidential.
SCHEDULE—continued
If the request cannot be executed without breaching
confidentiality, the Requested Party shall so inform the Requesting Party which
shall then determine whether the request should nevertheless be executed.
2. The
Requesting Party, if so requested, shall keep confidential evidence and
information provided by the Requested Party, except to the extent that the
evidence and information is needed for the investigation and proceeding
described in the request.
3. The
Requesting Party shall not use evidence obtained, nor information derived
therefrom, for purposes other than those stated in a request without the prior
consent of the Requested Party.
ARTICLE 18
(Expenses)
The Requested Party shall meet the cost of executing the
request for assistance except that the Requesting Party shall bear:
- a)
the fees, allowances and expenses relating to
the conveying of persons pursuant to Article 7 and expenses related to the
conveying of persons in custody pursuant to Article 8;
- b)
the allowances and expenses incurred in
conveying custodial or escorting officers; and
- c)
where required by the Requested Party,
exceptional expenses incurred in executing the request.
ARTICLE 19
(Resolution of
Doubts)
Any doubts and difficulties arising out of the application
and interpretation of this Treaty shall be resolved by consultation between the
Contracting Parties.
SCHEDULE—continued
ARTICLE 20
(Entry into Force and
Termination)
1. This
Treaty shall enter into force thirty days after the date on which the
Contracting Parties have notified each other in writing that their respective
requirements for the entry into force of this Treaty have been complied with.
2. This
Treaty shall apply to any Territory under the Administration of the Republic of
Portugal thirty days after the date of notification by the Republic of Portugal
to Australia that the constitutional requirements for the entry into force of
the Treaty in relation to that Territory have been complied with.
3. Either
Contracting Party may terminate this Treaty by notice in writing at any time
and it shall cease to be in force on the one hundred and eightieth day after
the day on which notice is given.
IN WITNESS WHEREOF, the undersigned, being duly authorised
thereto by their respective Governments, have signed this Treaty.
DONE at Lisbon on the fourth day of July One thousand nine
hundred and eighty nine in English and Portuguese, both texts being equally
authentic.
MICHAEL TATE J.
FERNANDO NOGUEIRA
For For
Australia the
Republic of Portugal
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NOTE
1. Notified in the Commonwealth
of Australia Gazette on 22 September 1993.