EXPLANATORY STATEMENT
Subject - Mutual Assistance in Criminal Matters Act 1990
Mutual Assistance in Criminal Matters (Canada) Regulations
1990 No. 22
Section 44 of the Mutual Assistance in Criminal Matters 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 the Act. Paragraph 7(2)(a) of the Act provides that regulations may apply the Act to a specified foreign country to give effect to a bilateral mutual assistance treaty.
A Treaty on Mutual Assistance in Criminal Matters between the Government of Australia and the Government of Canada was signed by the Minister for Justice on 19 June 1989. A copy of the English text of the Treaty is set out in the Schedule to the regulations.
Article XX, paragraph 1 of the Treaty provides for the Treaty to enter into force one month after the date on which the Parties have notified each other in writing of the accomplishment of the procedure required for the entry into force of the Treaty. Australia’s requirement for entry into force of the Treaty is the making of regulations applying the Act to Canada subject to the Treaty.
Details of the regulations are as follows:
Clause 1 is a citation provision.
Clause 2 provides for the proposed regulations to commence on 14 March 1990 (on the basis that Canada will be notified of the making of the Regulations a month beforehand in accordance with Article XX, paragraph 1 of the Treaty and that it is expected that Canada will inform Australia of the accomplishment of the necessary Canadian procedures on or before 14 February).
Clause 3 is an interpretation provision.
Clause 4 applies the Act to Canada subject to the Treaty which is reproduced as a Schedule to the Regulations.
Overview
The Mutual Assistance in Criminal Matters (Canada) Regulations 1990 were enacted under the Mutual Assistance in Criminal Matters Act 1990 to formalise and facilitate the legal and administrative processes for the exchange of information and assistance between Australia and Canada in criminal matters. This regulatory framework was introduced to address the need for a structured and legally binding mechanism to support international cooperation in criminal investigations and proceedings, especially given the absence of a pre-existing bilateral treaty. The regulations were made by the Governor-General in accordance with section 44 of the Act, which allows for the creation of regulations necessary to implement the provisions of the Act. The policy objective, as stated, was to provide a clear and efficient pathway for mutual assistance by applying the Act to Canada, subject to the Treaty on Mutual Assistance in Criminal Matters signed on 19 June 1989. These regulations were designed to ensure that both countries could effectively collaborate in criminal matters, thereby enhancing the capacity to combat crime that transcends national borders.
Scope and Application
The Mutual Assistance in Criminal Matters (Canada) Regulations 1990, made under the Mutual Assistance in Criminal Matters Act 1990, apply the Act to Canada in accordance with the Treaty on Mutual Assistance in Criminal Matters between Australia and Canada. These regulations are designed to facilitate the exchange of information and assistance between the two countries in criminal matters as specified in the Treaty. The regulations are intended to commence on 14 March 1990, contingent upon Canada notifying Australia of the completion of its necessary procedures. Clause 1 serves as a citation provision, Clause 2 specifies the commencement date of the regulations, Clause 3 provides definitions and interpretation necessary for the application of the regulations, and Clause 4 applies the provisions of the Act to Canada under the terms of the Treaty. The regulations do not include any exclusions, exemptions, or thresholds beyond what is stipulated in the Treaty, which is reproduced as a Schedule to the Regulations.
Key Provisions
The Mutual Assistance in Criminal Matters (Canada) Regulations 1990 (No. 22) under the Mutual Assistance in Criminal Matters Act 1990 (section 44) enable the Governor-General to make regulations that are necessary for the effective operation of the Act, particularly in relation to a specified foreign country. The regulations in question apply the Act to Canada, in accordance with the Treaty on Mutual Assistance in Criminal Matters signed between Australia and Canada on 19 June 1989. The Treaty, which is detailed in the Schedule to the Regulations, outlines the mutual cooperation between the two countries in criminal matters.
These regulations impose several obligations on the parties involved. Firstly, they formalise the application of the Mutual Assistance in Criminal Matters Act to Canada, thereby enabling the mechanisms for legal cooperation set out in the Act to be extended to Canadian authorities. This includes facilitating the exchange of information, documents, and evidence necessary for the investigation and prosecution of criminal activities. Additionally, the regulations ensure that the Treaty's provisions are incorporated into Australian law, thus governing the manner in which mutual assistance is provided and received between the two countries.
The Regulations also address the consequences of non-compliance. Although the specific offences, penalties, or civil and criminal consequences for breach are not explicitly detailed in the provided text, the Mutual Assistance in Criminal Matters Act generally allows for enforcement actions against those who fail to comply with its provisions. Typically, such breaches could result in penalties including fines and imprisonment, depending on the severity of the non-compliance. The exact penalties would be governed by the specific provisions of the Act and any relevant subsidiary legislation.
The commencement of these regulations is set for 14 March 1990, contingent upon Canada notifying Australia of the completion of its internal procedures necessary for the Treaty's entry into force. This date ensures that both countries are aligned in their legal frameworks, facilitating smooth and effective cooperation in criminal matters. The regulations also include citation and interpretation clauses to clarify their scope and application, ensuring that all involved parties understand their legal obligations and rights under the Treaty and the Act.