Mutual Assistance in Criminal Matters (Suppression of Terrorist Bombings) Regulations 2002 2002 No. 202
EXPLANATORY STATEMENT
Statutory Rules 2002 No. 202
Issued by the authority of the Minister for Justice and Customs
Mutual Assistance in Criminal Matters Act 1987
Mutual Assistance in Criminal Matters (Suppression of Terrorist Bombings) Regulations 2002
Section 44 of the Mutual Assistance in Criminal Matters Act 1987 (the Act) provides that the Governor-General may make regulations prescribing all matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the Act.
Section 7 provides that the regulations may apply the Act to a foreign country subject to any multilateral mutual assistance treaty (being a treaty to which that country is a party) that is referred to in the regulations. The application of the Act to such foreign countries is subject to the limitations, conditions, exceptions or qualifications that are necessary to give effect to the treaty in relation to the provision of assistance in criminal matters.
The Regulations give effect in Australian domestic law to the mutual assistance provisions of the International Convention on the Suppression of Terrorist Bombings (the Convention) done at New York on 15 December 1997.
The Convention requires each party to make it an offence to unlawfully and intentionally deliver, place, discharge or detonate (or attempt to unlawfully and intentionally deliver, place, discharge or detonate) an explosive or other lethal device in, into or against a place of public use, a State or government facility, a public transportation system or an infrastructure facility with the intent to cause death or serious bodily injury, or with the intent to cause extensive destruction of such a place, facility or system, where such destruction results in or is likely to result in major economic loss.
Article 10 of the Convention provides for mutual assistance between parties of persons accused of Convention offences. Australia acceded to the Convention on 9 August 2002. The Convention enters into force for Australia on 8 September 2002.
The Regulations provide that, subject to the Convention, the Act applies to parties to the Convention.
Mutual assistance under the Regulations operates in accordance with the Act, and is subject to the various safeguards set out in the Act. For example, mutual assistance is not to be provided where the request relates to the prosecution or punishment of a person for political or military offences, or where the prosecution or punishment is on account of a person's race, sex, religion, nationality or political opinions. Mutual assistance must be refused where the fugitive could be liable to the death penalty, unless the Attorney-General considers that such assistance should be given.
The Regulations commence on the commencement of Schedule 1 to the Criminal Code Amendment (Suppression of Terrorist Bombings) Act 2002. A separate minute to the Federal Executive Council is recommending that Schedule 1 commence on 8 September 2002 to coincide with the date that the Convention enters into force in Australia. This Act received Royal Assent on 3 July 2002.
Details of the Regulations are as follows:
Regulation 1 names the Regulations.
Regulation 2 provides that the Regulations commence on the date of commencement of Schedule 1 to the Criminal Code Amendment (Suppression of Terrorist Bombings) Act 2002.
Regulation 3 defines terms used in the Regulations.
Regulation 4 provides that the Act applies to each country specified in Schedule 2, subject to the Convention.
Schedule 1 contains the text of the International Convention for the Suppression of Terrorist Bombings.
Schedule 2 lists extradition countries to which the Act applies subject to the Convention.
Overview
The Mutual Assistance in Criminal Matters (Suppression of Terrorist Bombings) Regulations 2002 were introduced to provide legislative effect to Australia’s obligations under the International Convention on the Suppression of Terrorist Bombings. Enacted by the Australian Parliament, these regulations were authorised under section 44 of the Mutual Assistance in Criminal Matters Act 1987. They aim to ensure that Australia can provide mutual assistance in criminal matters, in accordance with the provisions of the Convention, to other signatory countries. The regulations allow the Act to apply to countries that are parties to the Convention, with mutual assistance being subject to the various safeguards outlined in the Act, such as the prohibition of assistance for political or military offences, or where the person may face discrimination or the death penalty. These regulations came into effect on 8 September 2002, aligning with the date the Convention entered into force for Australia.
Scope and Application
The Mutual Assistance in Criminal Matters (Suppression of Terrorist Bombings) Regulations 2002 provides a framework for Australia to comply with the International Convention on the Suppression of Terrorist Bombings, which it acceded to on 9 August 2002. This legislation applies to any country that is a party to the Convention, thereby facilitating cooperation between these countries in criminal matters related to terrorist bombings. The Act applies to any conduct or transactions involving the unlawful and intentional delivery, placement, discharge or detonation of explosives or lethal devices in or against specific targets such as places of public use, state or government facilities, public transportation systems, or infrastructure with the intent to cause death, serious bodily injury, or significant economic loss. The Act operates under the broader provisions of the Mutual Assistance in Criminal Matters Act 1987, which mandates the application of the Act to foreign countries subject to any relevant multilateral mutual assistance treaties. Notably, the Act does not apply to political or military offences or where prosecution or punishment is based on a person's race, sex, religion, nationality, or political opinions. Furthermore, assistance cannot be provided if it may result in the death penalty unless the Attorney-General deems it appropriate. The Regulations came into effect on 8 September 2002, aligning with the date the Convention enters into force for Australia.
Key Provisions
The Mutual Assistance in Criminal Matters (Suppression of Terrorist Bombings) Regulations 2002 (the Regulations) apply the Mutual Assistance in Criminal Matters Act 1987 (the Act) to the countries listed in Schedule 2 of the Regulations, subject to the International Convention on the Suppression of Terrorist Bombings (the Convention). This is achieved through Regulation 4, which references the application of the Act to countries specified in Schedule 2. Regulation 2 establishes that the Regulations commence on the same date as the commencement of Schedule 1 to the Criminal Code Amendment (Suppression of Terrorist Bombings) Act 2002, with a recommendation that this date be 8 September 2002 to align with the Convention's entry into force in Australia.
The Regulations impose obligations on parties to the Convention, requiring them to criminalise acts of terrorist bombings as defined in the Convention. This includes making it an offence to unlawfully and intentionally deliver, place, discharge or detonate an explosive or other lethal device in, into or against specific targets such as places of public use, State or government facilities, public transportation systems, or infrastructure facilities with intent to cause death, serious bodily injury, or extensive destruction resulting in major economic loss. The Regulations are designed to facilitate mutual assistance between parties for the prosecution or punishment of persons accused of Convention offences, as stipulated in Article 10 of the Convention. However, mutual assistance is not to be provided where the request relates to political or military offences, or where the prosecution or punishment is based on a person's race, sex, religion, nationality or political opinions. Mutual assistance must be refused if the fugitive could be liable to the death penalty, unless the Attorney-General considers that such assistance should be given.
Under the Regulations, parties to the Convention must adhere to the Act's provisions, which include various safeguards and limitations. For instance, mutual assistance cannot be provided for political or military offences, or if the prosecution or punishment is discriminatory. Additionally, mutual assistance must be refused if the fugitive could face the death penalty, unless the Attorney-General decides otherwise. These obligations ensure that the mutual assistance process is conducted fairly and in accordance with international standards.
Failure to comply with the Regulations can result in serious consequences. The Convention itself does not specify penalties for breaches, but the Act and any relevant domestic legislation may impose criminal or civil penalties for non-compliance. For instance, under the Act, a person who fails to provide mutual assistance or provides it in a manner inconsistent with the Act may be liable for penalties. The maximum penalties can vary depending on the specific offence and jurisdiction, but they can include fines and imprisonment. Additionally, non-compliance with the Convention's provisions could lead to diplomatic repercussions or other international consequences.