Mutual Assistance in Criminal Matters (United Kingdom) Regulations (Cth)
MUTUAL ASSISTANCE IN CRIMINAL MATTERS (UNITED KINGDOM) REGULATIONS
(#DATE 09:11:1993)
(#DATE 09:11:1993)
- In force under the Mutual Assistance in Criminal Matters Act 1987
*1* The Mutual Assistance in Criminal Matters (United Kingdom) Regulations (in force under the Mutual Assistance in Criminal Matters Act 1987) as shown in this reprint comprise Statutory Rules 1990 No. 254 amended as indicated in the Tables below.
Table of Statutory Rules
Year and Date of Date of Application
Number Notification commencement saving or
in Gazette transitional
provisions
1990 No. 254 9 Aug 1990 12 Sept 1990
1993 No. 111 3 June 1993 3 June 1993 -
Table of Amendments
ad=added or inserted am=amended rep=repealed rs=repealed and substituted
Provision affected How affected
R. 3 am. 1993 No. 111
R. 4 rs. 1993 No. 111
MUTUAL ASSISTANCE IN CRIMINAL MATTERS (UNITED KINGDOM) REGULATIONS - TABLE OF
PROVISIONSTABLE
TABLE OF PROVISIONS
Regulation
1. Citation
2. Commencement
3. Interpretation
4. Application of the Act
SCHEDULE
TREATY BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE
GOVERNMENT OF THE UNITED KINGDOM OF GREAT BRITAIN
AND NORTHERN IRELAND CONCERNING THE INVESTIGATION
OF DRUG TRAFFICKING AND CONFISCATION OF THE
PROCEEDS OF DRUG TRAFFICKING
MUTUAL ASSISTANCE IN CRIMINAL MATTERS (UNITED KINGDOM) REGULATIONS - REG 1
Citation
1. These Regulations may be cited as the Mutual Assistance in Criminal Matters (United Kingdom) Regulations.*1* SEE NOTES TO FIRST ARTICLE OF THIS CHAPTER .
MUTUAL ASSISTANCE IN CRIMINAL MATTERS (UNITED KINGDOM) REGULATIONS - REG 2
Commencement
2. These Regulations commence on 12 September 1990.
MUTUAL ASSISTANCE IN CRIMINAL MATTERS (UNITED KINGDOM) REGULATIONS - REG 3
Interpretation
3. In these Regulations:
"the Act" means the Mutual Assistance in Criminal Matters Act 1987;
"Treaty" means the Treaty between the Government of Australia and the Government of the United Kingdom of Great Britain and Northern Ireland concerning the Investigation of Drug Trafficking and the Confiscation of the Proceeds of Drug Trafficking, being the treaty done at Canberra on 3 August 1988 a copy of which is set out in the Schedule.
MUTUAL ASSISTANCE IN CRIMINAL MATTERS (UNITED KINGDOM) REGULATIONS - REG 4
Application of the Act
4. (1) In the case of matters within the scope of the Treaty, the Act applies in relation to the United Kingdom subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to the Treaty. (2) In the case of other matters, Parts I, II, III and VIII of the Act apply to the United Kingdom.
MUTUAL ASSISTANCE IN CRIMINAL MATTERS (UNITED KINGDOM) REGULATIONS - SCHEDULE SCH
SCHEDULE Regulation 4
TREATY BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE
GOVERNMENT OF THE UNITED KINGDOM OF GREAT BRITAIN
AND NORTHERN IRELAND CONCERNING THE INVESTIGATION
OF DRUG TRAFFICKING AND CONFISCATION OF THE
PROCEEDS OF DRUG TRAFFICKING
The Government of Australia and the Government of the United
Kingdom of Great Britain and Northern Ireland:
Desiring to provide mutual assistance, to the extent possible
within their respective laws, in the investigation of drug
trafficking and the confiscation of the proceeds of drug
trafficking;
Have agreed as follows:
Article 1
Scope of Application
1. The Parties shall, in accordance with this Treaty, grant to
each other assistance in investigations and proceedings in
respect of drug trafficking, including the tracing, restraining
and confiscation of the proceeds of drug trafficking.
2. This Treaty shall not derogate from other obligations
between the Parties whether pursuant to other treaties or
arrangements or otherwise, nor prevent the Parties providing
assistance to each other pursuant to other treaties or
arrangements.
Article 2
Definitions
For the purposes of this Treaty:
(a) proceedings are:
(i) instituted when an information has been laid before a
justice of the peace, when a person is charged with an offence
after having been taken into custody without a warrant, or when a
bill of indictment is preferred; and
(ii) concluded when no further action may be taken to obtain
a restraining or confiscation order or to enforce such an order
in those proceedings;
(b) "drug trafficking" means engaging or being concerned in the
unlawful production, supply, possession for supply, transport,
storage, import or export of a controlled drug or a narcotic
substance, whether in the United Kingdom, Australia or elsewhere;
(c) "controlled drug" means a drug specified in Schedule 2 to
the Misuse of Drugs Act 1971 for the United Kingdom or a narcotic
substance as defined in the Proceeds of Crime Act 1987 for
Australia;
(d) "drug trafficking offence" means an offence of drug
trafficking or conspiring or attempting to commit such an offence
or inciting, aiding, abetting, counselling, procuring or being an
accessory after the commission of such an offence. An offence of
assisting another to retain or to dispose of the proceeds of drug
trafficking is also a drug trafficking offence;
(e) "proceeds" means any property that is derived or realised,
directly or indirectly, by any person from drug trafficking, or
the value of any such property;
(f) property includes money and all kinds of moveable or
immoveable and tangible or intangible property, and includes any
interest in such property.
Article 3
Central Authorities
1. The Parties shall each appoint a central authority to
transmit and receive requests for the purpose of this Treaty.
Unless the relevant Party designates another authority, the
central authority for Australia shall be the Attorney-General's
Department, Canberra and the central authority for the United
Kingdom shall be the Home Office, London.
2. The central authority of the Requested Party shall take
whatever steps it considers necessary to give effect to requests
from the Requesting Party.
Article 4
Contents of Requests
1. Requests for assistance shall include a statement of:
(a) the name of the competent authority conducting the
investigation or proceedings to which the request relates;
(b) the matters, including the relevant facts and laws, to
which the investigation or proceedings relate;
(c) the purpose for which the request is made and the nature of
the assistance sought;
(d) details of any particular procedure or requirement that the
Requesting Party wishes to be followed;
(e) the need, if any, for confidentiality and the reasons
therefore; and
(f) any time limit within which compliance with the request is
desired.
2. Requests for assistance shall also include:
(a) if possible, where the request seeks assistance in relation
to an investigation, the quantity of drugs involved in the
investigation;
(b) the identity, nationality, and location of the person or
persons who are the subject of the investigation or proceeding;
(c) a statement as to what sworn or affirmed evidence or
statements are required, if any;
(d) a description of any information, statements or evidence
sought;
(e) a description of any documents, records or articles of
evidence to be produced as well as a description of the
appropriate person to be asked to produce them and, to the extent
not otherwise provided for, the form in which they should be
reproduced and authenticated.
3. If the Requested Party considers that the information
contained in the request is not sufficient to enable the request
to be dealt with, that Party may request that additional
information be furnished.
Article 5
Execution of Requests
1. To the extent permitted by its laws, the Requested Party
shall provide assistance in accordance with the requirements
specified in the request and shall respond to the request as soon
as practicable after it has been received.
2. The Requested Party may postpone the delivery of material
requested if such material is required for proceedings in respect
of criminal or civil matters in its territory. The Requested
Party shall, upon request, provide certified copies of documents.
3. The Requested Party shall promptly inform the Requesting
Party of any circumstances which are likely to cause a
significant delay in responding to the request.
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 reason for that
decision.
5. The Requesting Party shall promptly inform the Requested
Party of any circumstances which may affect the request or its
execution or which may make it inappropriate to proceed with
giving effect to it.
Article 6
Refusal of Assistance
1. Assistance shall be refused if the request relates to an
offence in respect of which:
(a) the person has been finally acquitted or pardoned; or
(b) the person has served any sentence imposed and any order
made as a result of the conviction has been satisfied.
2. Assistance may be refused if:
(a) the Requested Party is of the opinion that the request, if
granted, would seriously impair its sovereignty, security,
national interest or other essential interests; or
(b) provision of the assistance sought could prejudice an
investigation or proceedings in the territory of the Requested
Party, prejudice the safety of any person or impose an excessive
burden on the resources of that Party.
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.
Article 7
Information and Evidence
1. The Parties may make requests for information and evidence
pursuant to this Treaty for the purpose of an investigation or a
proceeding.
2. The Requested Party shall as appropriate and insofar as its
laws permit:
(a) provide information and documents or copies thereof for the
purpose of an investigation or a proceeding in the territory of
the Requesting Party;
(b) take the evidence of witnesses and require witnesses to
produce documents, records or other material, for transmission to
the Requesting Party;
(c) search for and seize and deliver to the Requesting Party
any relevant material and provide such information as may be
required by the Requesting Party concerning the place of seizure,
the circumstances of seizure and the subsequent custody of the
material seized prior to delivery.
3. Where required by the Requested Party, the Requesting Party
shall return material provided under this Treaty when no longer
needed for any investigation or proceeding.
Article 8
Restraint of Property Liable to Confiscation
1. Where proceedings in the territory of a Party may result in
the making of an order mentioned in paragraph 1 of Article 9, or
where such an order has been made, that Party may request the
restraint in the territory of the Requested Party of property for
the purpose of ensuring that it is available for confiscation.
2. A request made under this Article shall include:
(a) a certificate to the effect that proceedings have been
instituted on a specified date against a specified person and
that those proceedings have not been concluded or that such
proceedings are to be instituted within a specified time;
(b) a description of the property to be restrained and its
connection with the person specified under sub-paragraph (a) of
this paragraph, and insofar as possible its whereabouts; and
(c) details of any relevant order made by a court of the
Requesting Party.
3. Where the restraint of property has been ordered pursuant to
this Treaty but there is a representation in the territory of the
Requested Party by a person affected by the order, that Party
shall inform the Requesting Party as soon as possible and shall
also inform it promptly of the outcome of that representation.
Article 9
Assistance in Enforcing the Confiscation of Proceeds
1. This Article applies to an order made by a court of the
Requesting Party as a result of a conviction for a drug
trafficking offence, for the purpose of the confiscation of the
proceeds of drug trafficking, including:
(a) in relation to the United Kingdom, a confiscation order
made as a result of a conviction for a drug trafficking offence;
(b) in relation to Australia, any forfeiture order and any
pecuniary penalty order made as a result of a conviction for a
drug trafficking offence.
2. A Party may request the assistance of the other Party in
enforcing an order to which this Article applies.
3. A request made under this Article shall be accompanied by
the following documents:
(a) an authenticated copy of the order;
(b) an authenticated statement that neither the order nor any
conviction to which it relates is subject to appeal;
(c) a description of the property in relation to which
assistance is sought and its connection with the convicted
person; and
(d) where appropriate, a statement of the amount which it is
desired to realise as a result of the assistance.
4. Proceeds confiscated pursuant to this Treaty shall be
retained by the Requested Party, unless otherwise mutually
decided in a particular case.
5. Where the confiscation of proceeds has been ordered pursuant
to this Treaty but there is a representation in the territory of
the Requested Party by a person affected by the order, that Party
shall inform the Requesting Party as soon as possible, and shall
also inform it promptly of the outcome of that representation.
Article 10
Protecting Confidentiality and Restricting Use of Evidence and
Information
1. The Requested Party shall, to any extent requested, keep
confidential a request for assistance, its contents and any
supporting documents, and the fact of granting such assistance.
If the request cannot be executed without breaching
confidentiality, the Requested Party shall so inform the
Requesting Party which shall then determine the extent to which
it wishes the request to be executed.
2. The Requesting Party shall, if so requested, keep
confidential any evidence and information provided by the
Requested Party, except to the extent that its disclosure is
necessary for the investigation or proceeding described in the
request.
3. The Requesting Party shall not use for purposes other than
those stated in a request evidence or information obtained as a
result of it, without the prior consent of the Requested Party.
Article 11
Certification and Authentication
1. Any documents or other material supporting a request for
assistance which seeks the exercise of compulsory powers or the
restraint or confiscation of property shall, to the extent
required by the Requested Party, be authenticated in accordance
with paragraph 3.
2. Any documents or other material supplied in response to a
request for assistance shall, to the extent requested, be
authenticated in accordance with paragraph 3.
3. A document is authenticated for the purposes of this Treaty
if:
(a) it purports to be signed or certified by a judge,
magistrate or other officer in or of the State of the Party
sending the document; and
(b) it purports to be authenticated by the oath or affirmation
of a witness, or to be sealed with an official seal of the Party
sending the document or of a minister of state or department or
officer of the Government of that Party.
Article 12
Costs
The Requested Party shall bear any costs arising in its
territory in executing a request, unless otherwise mutually
decided in a particular case.
Article 13
Consultation
The Parties shall consult promptly, at the request of either,
concerning the interpretation, the application or the carrying
out of this Treaty either generally or in relation to a
particular case.
Article 14
Application to Scotland
This Treaty shall apply in respect of requests from the
Government of Australia to Scotland, but for the purposes of
Article 2 (a) proceedings shall be considered to be instituted in
Scotland when a warrant of apprehension to arrest and commit a
suspect person has been granted; or when a person has been
charged with an offence after having been arrested without a
warrant; or when a restraint order has been made under Section 8
of the Criminal Justice (Scotland) Act 1987.
Article 15
Territorial Application
This Treaty shall apply:
(a) in respect of requests from the Government of Australia,
(i) to England and Wales and Scotland;
(ii) upon notification made through the diplomatic channel by
the United Kingdom to Australia, to Northern Ireland, and the
Channel Islands and the Isle of Man;
(iii) to any territory for the international relations of
which the United Kingdom is responsible and to which this Treaty
shall have been extended by agreement between the Parties; and
(b) in respect of requests from the United Kingdom, to
Australia.
Article 16
Entry into Force and Termination
1. Each of the Parties shall notify the other in writing
through the diplomatic channel that their respective requirements
for the entry into force of the Treaty have been completed. The
Treaty shall enter into force 30 days after the later of these
notifications.
2. This Treaty shall apply to a request made pursuant to it
whether or not the drug trafficking to which the request relates
occurred prior to the Treaty entering into force.
3. Either Party may terminate this Treaty at any time giving
180 days' written notice to the other through the diplomatic
channel.
In witness whereof the undersigned, being duly authorised
thereto by their respective governments, have signed this Treaty.
DONE in duplicate at Canberra on the 3rd day of August 1988.
For the Government of Australia:
BOB HAWKE
For the Government of the United Kingdom of Great Britain and
Northern Ireland:
MARGARET THATCHER
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