EXPLANATORY STATEMENT
Issued by the authority of the Minister for Justice
Mutual Assistance in Criminal Matters Act 1987
Mutual Assistance in Criminal Matters (Brazil) Regulation 2016
Section 44 of the Mutual Assistance in Criminal Matters Act 1987 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, 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 this Act.
Section 7 of the Act provides that the Act applies to all foreign countries. However, regulations may provide that the Act applies to a foreign country subject to any mutual assistance treaty between that country and Australia referred to in the regulations. Where that treaty wholly relates to mutual assistance, the Act applies subject to the limitations, conditions, exceptions or qualifications that are necessary to give effect to the treaty.
The purpose of the Mutual Assistance in Criminal Matters (Brazil) Regulation 2016 (the Regulation) is to give effect in Australian domestic law to the Treaty between Australia and the Federative Republic of Brazil on Mutual Legal Assistance in Criminal Matters (the Treaty), done at Brisbane on 15 November 2014. The Treaty was the subject of a public hearing by the Joint Standing Committee on Treaties (JSCOT). In Report 156, tabled 23 November 2015, JSCOT recommended that binding treaty action be taken to implement the Treaty.
Both Australia and Brazil are parties to multilateral conventions that contain mutual assistance obligations. They can also provide each other with assistance on the basis of reciprocity. However, in situations where no multilateral convention or bilateral mutual assistance treaty applies there is no obligation on either country to consider a request for assistance from the other country. The Treaty therefore provides a comprehensive framework to govern bilateral mutual assistance between Australia and Brazil, as well as clarity and certainty about the procedures to be used in making and executing mutual assistance requests. The Regulation provides that the Act applies to Brazil subject to the Treaty. Therefore, requests for mutual assistance between Brazil and Australia will be considered on the basis of the bilateral framework established by Treaty, subject to the limitations, conditions, exceptions or qualifications necessary to give effect to the Treaty. A copy of the Treaty is set out in Schedule 1 of the Regulation.
The Regulation is consistent with the Act. The Treaty contains a number of important safeguards and human rights protections, including the ability to refuse to provide assistance in cases where the request has been made for the purpose of prosecuting someone on discriminatory grounds, where double jeopardy or dual criminality considerations apply, or where the request would be likely to prejudice the safety of any person. The Treaty enables Australia to refuse assistance in death penalty matters. Brazil has abolished the death penalty for ordinary crimes. Australia has a long‑standing policy of opposition to the death penalty. Under the Treaty, Parties may refuse assistance if the request relates to an offence in respect of which the death penalty may be imposed or executed. This operates consistently with the existing provisions of the Act and reflects Australia’s policy position on the death penalty and domestic legal requirements.
Consultation was not undertaken outside of the Australian Government for this legislative instrument, as it relates to criminal justice and law enforcement matters. The instrument does not have direct, or substantial indirect, effects on business, nor does it restrict competition.
The Regulation commences on the day on which the Treaty enters into force. Article 26 of the Treaty provides that it shall enter into force 30 days after the parties have notified each other in writing through diplomatic channels that their respective requirements for entry into force have been fulfilled.
The Office of Best Practice Regulation advised that a Regulation Impact Statement was not necessary for this Regulation.
The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Details of the Regulation are set out in the Attachment.
ATTACHMENT
Details of the proposed Mutual Assistance in Criminal Matters (Brazil) Regulation 2016
Section 1 – Name of Regulation
This section provides that the title of the Regulation is the Mutual Assistance in Criminal Matters (Brazil) Regulation 2016.
Section 2 – Commencement
This section provides for the Regulation to commence on the day on which the Treaty between Australia and the Federative Republic of Brazil on Mutual Legal Assistance in Criminal Matters, done on 15 November 2014, enters into force.
Section 3 – Authority
This section provides that the Regulation is made under the Mutual Assistance in Criminal Matters Act 1987.
Section 4 – Definitions
This section defines terms used in the Regulation. In this regulation:
- references to the word Act are interpreted as being references to the Mutual Assistance in Criminal Matters Act 1987.
Section 5 – Application of the Act
The Mutual Assistance in Criminal Matters Act 1987 provides the legal framework for consideration of mutual assistance requests to and from Australia. Section 7 of the Act provides that the Act applies to all foreign countries. However, regulations may provide that the Act applies to a foreign country subject to any mutual assistance treaty between that country and Australia referred to in the regulations.
This section provides that the Act applies to Brazil subject to the Treaty between Australia and the Federative Republic of Brazil on Mutual Legal Assistance in Criminal Matters. The effect of this section is that mutual assistance requests between Australia and Brazil are considered in accordance with the Treaty. Therefore, the Act applies subject to the limitations, conditions, exceptions or qualifications necessary to give effect to the Treaty.
Schedule 1 – Treaty between Australia and the Federative Republic of Brazil on Mutual Legal Assistance in Criminal Matters, done at Brisbane on 15 November 2014
This schedule contains the text of the Treaty.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Mutual Assistance in Criminal Matters (Brazil) Regulation 2016
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 Mutual Assistance in Criminal Matters Act 1987 (the Act) provides the legislative basis for mutual assistance in Australia. Mutual assistance is the process by which countries provide formal government to government assistance in the investigation and prosecution of criminal offences, and related proceedings. Mutual assistance is a key aspect of international crime cooperation and is used where evidence or information relating to a criminal investigation, prosecution or related proceeding is located in a foreign country.
Under the Act, Australia is able to make and receive requests for assistance to and from any country. The Act allows regulations to be made to provide that the Act applies to a foreign country subject to the terms of a bilateral or multilateral treaty. The Mutual Assistance in Criminal Matters (Brazil) Regulation 2016 (the Regulation) will give effect in Australian domestic law to Australia’s mutual assistance obligations under the Treaty between Australia and the Federative Republic of Brazil on Mutual Legal Assistance in Criminal Matters (the Treaty), done on 15 November 2014. The Treaty was the subject of a public hearing by the Joint Standing Committee on Treaties (JSCOT). In Report 156, tabled 23 November 2015, JSCOT recommended that binding treaty action be taken to implement the Treaty. The Regulation will provide that the Act applies to Brazil subject to the Treaty.
Brazil is an important partner in South America for the Australian Government’s efforts to combat transnational crime, and the effect of the Regulation is to facilitate Australia providing, requesting and receiving assistance to and from Brazil.
Human Rights Implications
Safeguards found in section 8 of the Act (refusal of assistance) are replicated in the Treaty, which this Regulation enforces. When a request for mutual assistance is received, the general obligation to provide assistance under Article 1 of the Treaty is subject to a number of grounds of refusal contained within Article 4. These grounds of refusal reflect the grounds contained in the Act and international human rights obligations. The Regulation ensures that requests received by Australia for mutual assistance to Brazil can be actioned in compliance with both the Act and the Treaty.
The right to privacy
This legislative instrument engages the right to privacy (Article 17 of the International Covenant on Civil and Political Rights, ‘ICCPR’).
Article 17 of the ICCPR prohibits unlawful or arbitrary interferences with a person's privacy. Collecting, using, storing, disclosing or publishing personal information amounts to an interference with privacy. In order for the interference with privacy not to be ‘arbitrary’, any interference with privacy must be in accordance with the provisions, aims and objectives of the ICCPR and should be reasonable in the particular circumstances. Reasonableness, in this context, incorporates notions of proportionality, appropriateness and necessity.
The instrument engages the right to privacy as the type of mutual assistance that may be sought between Australia and Brazil includes the provision of information, documents and other records, including criminal, government and judicial documents; the location of persons and their identification; and search and seizure (Article 1 of the Treaty). Further, requests for information shall, to the extent necessary and possible, also include the identity, nationality and location of the person or persons who are the subject of the investigation or proceedings (Article 5(2)(a) of the Treaty).
The legitimate objective of the instrument is to facilitate government to government assistance in the investigation and prosecution of criminal offences. The sharing of personal information is crucial to investigations and proceedings in criminal matters. For example, details concerning the location of persons and their identification can be critical to the successful gathering of information required to conduct criminal proceedings. While the instrument may limit the right to privacy, any limitation is reasonable, necessary and proportionate in order to achieve the legitimate objective of the instrument. The Treaty has safeguards in place to protect the confidentiality of any information shared between the Parties. For example, the Party providing the information may request that the information or evidence provided be kept confidential or only disclosed subject to terms and conditions (Article 7(1) of the Treaty). Additionally, the Party receiving the information may not disclose or use information or evidence for purposes other than those stated in the request for assistance (without prior consent) (Article 7(2) of the Treaty). Requests for assistance are also required to include the need for confidentiality (Article 5(1)(d) of the Treaty).
Consideration of rights not engaged by the instrument
The following rights are not engaged by the legislative instrument, for reasons explained below:
- the right to life (Article 6, ICCPR)
- minimum guarantees in criminal proceedings (Article 14, ICCPR)
- the prohibition against torture and cruel, inhuman or degrading treatment or punishment (Article 7, ICCPR; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘CAT’)), and
- the rights of equality and non-discrimination (Articles 2(1) and 26, ICCPR).
The measures in the legislative instrument may appear to engage these rights because assistance can be provided in criminal matters which potentially could have human rights implications, for example imposition of the death penalty in Brazil. However, Australia’s obligations are primarily territorial in nature. For this reason, Australia’s obligations with respect to these rights are not engaged by international cooperation involving information sharing.
As a matter of domestic policy, however, Australia has a number of safeguards in place to uphold human rights and these safeguards are reflected in the Treaty. For example, Australia has a long standing opposition to the death penalty. Under the Treaty, assistance may be refused if the request relates to an offence in respect of which the death penalty may be imposed or executed (Article 4(1)(a)). Brazil has abolished the death penalty for ordinary crimes and has only retained the death penalty for wartime offences.
The Treaty also provides a discretionary ground of refusal if the request relates to an offence where the prosecution would be incompatible with the Requested Party’s law on double jeopardy (Article 4(1)(e) of the Treaty). This safeguard is in line with the UN Model Treaty on Mutual Assistance in Criminal Matters (Article 4(1)(d)) and with Australia’s domestic obligations under the Act (s 8(2)(c)).
Similarly, the Treaty includes a discretionary ground for refusal where assistance may prejudice the safety of any person (Article 4(1)(b)). This ground for refusal is sufficiently broad to encapsulate torture. It also provides Australia the discretion to refuse requests for assistance in cases of cruel, inhuman or degrading treatment or punishment resulting in unsafe conditions, such as corporal punishment or inhuman or degrading conditions of detention.
In relation to discriminatory treatment, requests for assistance are able to be refused under the Treaty (Article 4(1)(d)) where there are grounds to believe the request for assistance has been made for the purpose of prosecuting a person on account of race, sex, religion, nationality, ethnic origin or political opinions, or that that person’s position may be prejudiced for any of these reasons.
Conclusion
This legislative instrument is compatible with human rights as, to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.