Foreign Evidence (Certificate to Adduce Foreign Government Material- Prescribed Form) 2015

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Legislation au F2017L00643 In force Legislative Instrument

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EXPLANATORY STATEMENT

 

Minute No.      of 2017 – Attorney-General

 

Subject -   Foreign Evidence Act 1994

 

Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014

 

Foreign Evidence (Certificate to Adduce Foreign Government Material - Prescribed Form) 2015

 

The Foreign Evidence Act 1994 (FEA) enables evidence collected in overseas countries to be adduced in proceedings in an Australian court. It also provides for the collection of evidence in Australia for use in an overseas court. Part 3 of the Act provides a means of bringing forward or presenting foreign material, obtained in response to a request made by the Attorney‑General under the Mutual Assistance in Criminal Matters Act 1987 to a foreign country, as evidence in proceedings in Australian courts. 

In the context of terrorism-related matters, obtaining foreign evidence through a formal request by the Attorney-General may not always be possible or practicable because there may be no effective Government to which a request can practicably be made.  Further, there are circumstances where, although it is possible for Australia to make a mutual assistance request to another country, experience has demonstrated that some countries are not willing or able to provide the requested evidence in response to a mutual assistance request, or not willing or able to provide it in a form that meets the existing requirements in the FEA. 

In response to these difficulties and in recognition of the seriousness of offences to which these proceedings relate and the need to protect the safety of the community, the            Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (Foreign Fighters Act) amended the FEA to insert a new Part 3A which provides Australian judicial officers with greater discretion in deciding whether to admit foreign material in terrorism-related proceedings, while still providing appropriate judicial protection of the rights of the defendant. Under Part 3A, in addition to foreign material obtained as a result of a mutual assistance request to a foreign country, material received on a police-to-police or                 agency-to-agency basis (foreign government material) will be able to be adduced in terrorism-related proceedings, as long as certain requirements are met, and subject to the exercise of a broad judicial discretion. Foreign government material is defined within the FEA as material provided by a foreign authority to an authority of the Commonwealth.

In recognition of the fact that the mutual assistance process remains the preferred method for obtaining foreign evidence for use in Australian proceedings and to safeguard the rights of the defendant, there are a range of requirements that must be met before foreign government material is able to be adduced, including subsection 27B(1) which provides that foreign government material can only be adduced in terrorism-related proceedings if accompanied by a certificate of the Attorney-General. Subsection 27B(3) will enable the Attorney-General to certify that he or she is satisfied that it was not practicable to obtain the foreign government material or the information in the foreign government material as foreign material.  That is, that it was not practicable to obtain the material in response to a formal request through mutual assistance channels. This may be because there is no functioning government to which a request may be made (for example when the requested country is in a severe state of conflict) or where the requested country is unwilling or unable to provide the requested evidence in response to a mutual assistance request.  

Subsection 27B(3) requires the Attorney-General’s certificate to be in a form prescribed under subsection (4). Subsection 27B(4) provides the Attorney-General with the power to prescribe a form for the certificate by legislative instrument.

 

Details of the proposed instrument are set out in the Attachment.

 

The FEA does not specify any condition that needs to be satisfied before the power to prescribe the form may be exercised.

 

Consultation outside of the Australian Government was not undertaken for this legislative instrument, as this instrument does not have direct, or substantial indirect, effects on business, nor does it restrict competition.

The proposed instrument is a legislative instrument for the purposes of the Legislative Instruments Act 2003. Subsection 27B(5) of the FEA provides that a certificate given under subsection (3) is not a legislative instrument.

 

The Office of Best Practice Regulation was consulted and a Regulation Impact Statement was not required.

 

The proposed instrument would commence the day after it is registered.

 

 

Authority: Section 27B(4) of the Foreign Evidence Act 1994

 

 

ATTACHMENT

 

Details of the proposed Foreign Evidence (Certificate to Adduce Foreign Government Material - Prescribed Form) 2015

 

 

Paragraph 1 – Name of Regulation

 

This paragraph provides that the form in Schedule 1 is the form for the certificate to be given under subsection 27B(3) of the Foreign Evidence Act 1994.

 

 

Paragraph 2 – Commencement

 

This paragraph provides for the instrument to commence the day after its registration.

 

 

Schedule 1 – Certificate under section 27B

 

The schedule contains the prescribed form.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Foreign Evidence (Certificate to Adduce Foreign Government Material - Prescribed Form) Regulation 2017

 

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Legislative Instrument

The Foreign Evidence Act 1994 (FEA) enables evidence collected in overseas countries to be adduced in proceedings in an Australian court.  Part 3 of the Act provides a means of bringing forward or presenting foreign material, obtained in response to a request made by the Attorney‑General under the Mutual Assistance in Criminal Matters Act 1987 to a foreign country, as evidence in proceedings in Australian courts. 

The Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (Foreign Fighters Act) amended the FEA to insert a new Part 3A which provides Australian judicial officers with greater discretion in deciding whether to admit foreign material in terrorism-related proceedings, while still providing appropriate judicial protection of the rights of the defendant. Under Part 3A foreign material received on a police-to-police or agency-to-agency basis (foreign government material) will be able to be adduced in terrorism-related proceedings, as long as certain requirements are met, and subject to the exercise of a broad judicial discretion. Foreign government material is defined within the FEA as material provided by a foreign authority to an authority of the Commonwealth.

In recognition of the fact that the mutual assistance process remains the preferred method for obtaining foreign evidence for use in Australian proceedings and to safeguard the rights of the defendant, there are a range of requirements that must be met before foreign government material is able to be adduced, including subsection 27B(1) which provides that foreign government material can only be adduced in terrorism-related proceedings if accompanied by a certificate of the Attorney-General. Subsection 27B(3) will enable the Attorney-General to certify that he or she is satisfied that it was not practicable to obtain the foreign government material or the information in the foreign government material as foreign material.  That is, that it was not practicable to obtain the material in response to a formal request through mutual assistance channels. This may be because there is no functioning government to which a request may be made (for example when the requested country is in a severe state of conflict) or where the requested country is unwilling or unable to provide the requested evidence in response to a mutual assistance request.  

Subsection 27B(3) requires the Attorney-General’s certificate to be in a form prescribed under subsection (4). Subsection 27B(4) provides the Attorney-General with the power to prescribe a form for the certificate by legislative instrument. This Legislative Instrument prescribes the form for the certificate.

 

Human Rights Implications

Paragraphs 246 to 255 of the Explanatory Memorandum to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 (the Bill) set out the human rights implications of the amendments contained within the Bill including those engaged by the new Part 3A of the FEA and conclude that the proposed amendments are reasonable, necessary and proportionate in respect of crimes that constitute the gravest threat to the lives of Australians and Australia’s national security interests.

Conclusion

This Legislative Instrument merely prescribes the form for the Attorney-General’s certificate and does not engage any human rights.

 

    [Senator The Hon George Brandis QC, Attorney-General]

 

 

Overview

The Foreign Evidence Act 1994 (FEA) was enacted to facilitate the admissibility of evidence collected in foreign countries in Australian courts, thereby addressing the need for streamlined legal processes in handling international evidence. This Act was introduced by the Commonwealth Parliament to ensure that Australian courts can effectively incorporate foreign evidence in legal proceedings, subject to certain conditions and judicial oversight. In 2014, the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 further amended the FEA to enhance judicial discretion in terrorism-related matters by allowing the admissibility of foreign government material obtained via police-to-police or agency-to-agency arrangements, provided that specific criteria are met. This amendment recognises the practical difficulties in obtaining evidence through formal mutual assistance requests, especially in conflict zones or from non-cooperative jurisdictions, and seeks to balance the necessity of admitting relevant evidence with the protection of defendants' rights. The policy objective remains to ensure the safety of the community by facilitating the use of necessary evidence in serious criminal proceedings while safeguarding procedural fairness.

Scope and Application

The Foreign Evidence Act 1994 (FEA) facilitates the use of evidence collected abroad in Australian courts and vice versa, allowing for the admissibility of foreign material obtained through formal mutual assistance requests under the Mutual Assistance in Criminal Matters Act 1987. The Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 introduced Part 3A to the FEA, providing Australian judicial officers with enhanced discretion in admitting foreign material in terrorism-related proceedings, while ensuring the rights of the defendant are protected. This new provision allows for the admissibility of foreign government material, which is defined as material provided by a foreign authority to a Commonwealth authority, in terrorism-related proceedings provided certain criteria are met and judicial discretion is exercised. The admissibility of such material requires a certificate from the Attorney-General, who must be satisfied that it was not practicable to obtain the material through mutual assistance channels due to reasons such as the absence of a functioning government or the unwillingness or inability of the requested country to provide the evidence. This legislative instrument prescribes the form for the Attorney-General's certificate, ensuring compliance with the requirements stipulated under the FEA.

Key Provisions

The Foreign Evidence Act 1994 (FEA) facilitates the use of foreign evidence in Australian courts, particularly in terrorism-related proceedings. Section 27B(1) of the FEA, as amended by the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014, stipulates that foreign government material, defined as material provided by a foreign authority to an authority of the Commonwealth, can be adduced in terrorism-related proceedings if it is accompanied by a certificate from the Attorney-General. This certificate must attest that it was not practicable to obtain the material through formal mutual assistance requests due to reasons such as the absence of a functioning government or the unwillingness or inability of the requested country to comply. Section 27B(3) allows the Attorney-General to issue such a certificate, provided it is in the prescribed form outlined in Section 27B(4). The Act imposes several obligations on the parties involved. The Attorney-General must ensure that the certificate provided is in the form prescribed by a legislative instrument, as per Section 27B(4). This legislative instrument, the Foreign Evidence (Certificate to Adduce Foreign Government Material - Prescribed Form) 2015, outlines the specific format required for the certificate. Judicial officers must also exercise a broad discretion when deciding to admit foreign material, ensuring that the rights of the defendant are adequately protected. The courts must consider the certificate and the reasons for its issuance when determining the admissibility of the evidence. Breaches of the requirements set out in the FEA can lead to significant legal consequences. The Act does not explicitly outline specific offences or penalties for non-compliance, but the failure to adhere to the prescribed form for the Attorney-General's certificate could result in the exclusion of the foreign material from evidence. Such exclusion could potentially impact the outcome of terrorism-related proceedings, leading to miscarriages of justice or acquittals. Additionally, if the exclusion of evidence is due to non-compliance with the Act's requirements, it might also subject the involved parties to civil or administrative penalties as deemed appropriate by the courts or relevant authorities.

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