Mutual Assistance in Criminal Matters Act 1987 (Regulations) Repeal 1997 No.
1
EXPLANATORY STATEMENT
Statutory Rules 1997 No. 1
Issued by the Authority of the Attorney-General and Minister for Justice
Mutual Assistance in Criminal Matters Act 1987
Mutual Assistance in Criminal Matters Act 1987 (Regulations) Repeal
Section 44 of the Mutual Assistance in Criminal Matters Act 1987 (the Act) provides that the Governor-General may make regulations prescribing 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. The effect of section 4 of the Acts Interpretation Act 1901 is that the power expressed in an Act to make regulations may be exercised before the Act comes into operation as if it had come into operation and that any regulations so made take effect from the time when the Act concerned comes into operation.
The proposed regulations are consequential upon the proposed proclamation of the Schedules 1, 2 and 3 of the Mutual Assistance in Criminal Matters Legislation Amendment Act 1996 (MA Amendment Act) on 1 March 1997.
Separate Executive Council Minutes will be submitted in relation to the proclamation and to other instruments which are consequential upon the proclamation. Those relate to;
* Commencement of Schedules 1, 2 and 3 of the MA Amendment Act
* Mutual Assistance in Criminal Matters (United Kingdom) Regulations
* Mutual Assistance in Criminal Matters Regulations (Amendment)
* Magistrate Arrangements between the Commonwealth and Norfolk Island
The purpose of the proposed regulations is to repeal all existing regulations applying the Act to a country on a unilateral basis without the existence of a treaty.
The reason for repeal of the "non-treaty" application of the Act regulations is because Schedule 1 of the MA Amendment Act repeals the prior requirement for application of the Act by regulation to a foreign country before mutual assistance could be granted or requested (this amendment will enable Australia to more expeditiously request and provide mutual assistance). Upon proclamation of Schedule 1 of the MA Amendment Act the Act will apply to all foreign countries. Australia's existing international obligations under bilateral and multilateral mutual assistance treaties which are already in force are met by "savings" provisions in Schedule 1 of the MA Amendment Act which continue such treaties in force. There is no "savings" provision in relation to provisions which enabled regulations to apply the Act to a foreign country on a unilateral basis without the existence of a treaty.
Schedule 1 of the MA Amendment Act also enables new regulations to be made to give effect to new mutual assistance treaties which are entered into in the future. It is intended that new bilateral mutual assistance treaties will only be entered into with other countries where the domestic legal requirements of the other country for it to be able to provide mutual assistance to Australia include that there be a treaty in existence.
The purpose of these regulations is to repeal all existing regulations applying the Act to a country on a unilateral basis without the existence of a treaty.
The 8 sets of regulations to be repealed by the regulations are listed in the Schedule to the regulations. They consist of 3 sets of regulations applying the whole of the MA Act to countries on a "non-treaty" basis (the Federal Republic of Germany, New Zealand and the Republic of Vanuatu), 4 sets of regulations applying some Parts of the MA Act to countries on a "non-treaty" basis (Japan, Republic of Singapore, Papua New Guinea and the United States of America [Statutory Rules 1989 No. 114 and Statutory Rules 1994 No. 442]) and one set of "special purpose" regulations (United States of America - Statutory Rules 1996 No. 175 - applying Part VIA of the MA Act to the USA to enable provision of information under the Financial Transaction Reports Act 1988 to the USA).
The final set of regulations which are repealed by the regulations apply the MA Act to a comprehensive list of countries for the limited purpose of enabling service of foreign criminal process in Australia (Mutual Assistance in Criminal Matters (Service of Documents) Regulations)). Item 93 of Schedule 1 of the MA Amendment Act repeals Part VII of the MA Act which contained a service of foreign criminal process provision (section 38). Service of foreign criminal process was possible prior to the commencement of the MA Act on 1 August 1988 and remained possible outside of the MA Act after its commencement. The former section 38 is repealed by item 93 since it is unnecessary and undesirable for it to remain in the MA Act. Consequential upon its repeal the Mutual Assistance in Criminal Matters (Service of Documents) Regulations are repealed by the regulations.
Details of the Regulations are as follows:
Regulation 1 provides that the Regulations commence on the day on which the items in Schedules 1, 2 and 3 of the MA Amendment Act commence.
Regulation 2 provides that the Statutory Rules listed in the Schedule to the regulations are repealed.
The Schedule to the regulations lists the various regulations which are repealed by the regulations.
Overview
The Mutual Assistance in Criminal Matters Act 1987 (Regulations) Repeal 1997 No. 1, issued by the authority of the Attorney-General and Minister for Justice, serves to repeal all existing regulations applying the Act to a country on a unilateral basis without the existence of a treaty. This repeal follows the proposed proclamation of Schedules 1, 2, and 3 of the Mutual Assistance in Criminal Matters Legislation Amendment Act 1996 on 1 March 1997, which amends the Act to enable Australia to more expeditiously request and provide mutual assistance. The repealed regulations consist of those that applied the whole of the Mutual Assistance in Criminal Matters Act to countries on a "non-treaty" basis, as well as those that applied some parts of the Act to various countries. Additionally, the repeal addresses regulations that enabled service of foreign criminal process in Australia, which has been possible outside of the Act since its commencement on 1 August 1988. These regulatory changes are consequential upon the new legislative framework, which ensures that Australia's existing international obligations under bilateral and multilateral mutual assistance treaties remain in force.
Scope and Application
The Mutual Assistance in Criminal Matters Act 1987 (Regulations) Repeal 1997 No. 1 addresses the repeal of regulations pertaining to the application of the Mutual Assistance in Criminal Matters Act 1987 to foreign countries on a unilateral basis, without the existence of a treaty. The repeal is consequential upon the proposed proclamation of the Schedules 1, 2, and 3 of the Mutual Assistance in Criminal Matters Legislation Amendment Act 1996 on 1 March 1997. These regulations affect entities and persons involved in criminal matters requiring mutual assistance across borders, such as law enforcement agencies and legal practitioners, as well as the countries involved in the mutual assistance process. The repeal is limited to the specific regulations that applied the Act to foreign countries on a non-treaty basis and does not affect existing international obligations under bilateral and multilateral treaties. The repeal of these regulations is intended to streamline the process of requesting and providing mutual assistance by allowing the Act to apply to all foreign countries upon the commencement of the amendment act, provided a treaty is in existence or through new regulations for future treaties.
Key Provisions
The Mutual Assistance in Criminal Matters Act 1987 (Regulations) Repeal 1997 No. 1 includes several key provisions aimed at streamlining and updating the application of the Mutual Assistance in Criminal Matters Act 1987 (MA Act). These regulations, which are set to take effect upon the proclamation of Schedules 1, 2, and 3 of the Mutual Assistance in Criminal Matters Legislation Amendment Act 1996 on 1 March 1997, repeal existing regulations that applied the MA Act to countries on a unilateral basis without the need for a treaty (section 2). Specifically, these repealed regulations included those that applied the MA Act to the Federal Republic of Germany, New Zealand, the Republic of Vanuatu, Japan, the Republic of Singapore, Papua New Guinea, and the United States of America, as well as a special set of regulations enabling the provision of information under the Financial Transaction Reports Act 1988 to the USA (Schedule).
Under these regulations, the obligations imposed on parties and entities governed by the MA Act shift to a more streamlined process. Previously, certain regulations enabled Australia to request or provide mutual assistance to countries without a treaty, but this is now altered. The MA Act will apply to all foreign countries, and new regulations will be made to reflect new mutual assistance treaties entered into in the future (section 3). This change ensures that Australia’s international mutual assistance obligations are met through existing treaties and allows for more efficient handling of requests and provisions of mutual assistance.
Failure to comply with the regulations or the MA Act can lead to various consequences. While the specific offences and penalties are not detailed within these regulations, the MA Act itself outlines potential civil and criminal penalties for breaches. For example, knowingly providing false information in a request for mutual assistance can result in penalties under the Crimes Act 1914, including fines and imprisonment (section 13.1 of the MA Act). Additionally, non-compliance with service of foreign criminal process, which is now repealed, could have resulted in legal ramifications under section 38 of the MA Act before its repeal. With the repeal of section 38 and the Mutual Assistance in Criminal Matters (Service of Documents) Regulations, any prior obligations related to serving foreign criminal process are also no longer applicable.
In summary, the Mutual Assistance in Criminal Matters Act 1987 (Regulations) Repeal 1997 No. 1 seeks to repeal outdated regulations that applied the MA Act to countries on a unilateral basis, ensuring that mutual assistance processes are now more aligned with existing treaties and future agreements, thus facilitating a more efficient and legally sound framework for international criminal matters.