Mutual Assistance in Criminal Matters (Grand Duchy of Luxembourg) Regulations 1994 No. 99
EXPLANATORY STATEMENT
Statutory Rules 1994 No. 99
Issued by the Authority of the Attorney-General
Mutual Assistance in Criminal Matters Act 1987
Mutual Assistance in Criminal Matters (Grand Duchy of Luxembourg) Regulations
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. Paragraph 7(2)(a) of the Act provides that regulations may apply the Act to a specified foreign country subject to such limitations, conditions, exceptions, or qualifications as are necessary to give effect to a bilateral mutual assistance treaty between Australia and that country, being a treaty a copy of which is set out in the regulations.
The Act enables Australia to grant or request the following kinds of international mutual assistance in criminal matters: taking of evidence, search and seizure, arrangements for witnesses to give evidence or assist in investigations, service of documents and the restraint, forfeiture and confiscation of proceeds of crime. For Australia to grant or request assistance under the Act, with the exception of the taking of evidence, the Act must apply by regulations to the country concerned. The regulations may give effect to a treaty or otherwise.
Australia and the Grand Duchy of Luxembourg (Luxembourg) signed a mutual assistance in criminal matters treaty on 24 October 1988. The Treaty, once in force, binds the two countries under international law to provide each other with the kinds of assistance listed above. On 10 February 1994 Luxembourg notified Australia, in accordance with Article 20 of the Treaty, that their domestic requirements for the Treaty's entry into force had been satisfied. The proposed Regulations, if made, will enable Australia to give domestic effect to the Treaty. The Treaty enters into force 30 days after each party has notified the other that its requirements for entry into force have been completed. Should the proposed Regulations be made, a note will be provided to Luxembourg on 15 April 1994, 30 days before the Regulations commence and the Treaty enters into force on 15 May 1994, notifying Luxembourg that Australia's requirements for the Treaty's entry into force have been complied with.
Details of the Regulations are as follows:
Regulation 1 is a citation provision.
Regulation 2 provides that the Regulations commence on 15 May 1994 on which date the Treaty comes into force between Australia and Luxembourg.
Regulation 3 is an interpretation provision.
Regulation 4 applies the Act to Luxembourg subject to the Treaty, a copy of the English language text of which is set out in the Schedule.
Overview
The Mutual Assistance in Criminal Matters (Grand Duchy of Luxembourg) Regulations 1994, enacted under the authority of the Attorney-General, were designed to give domestic effect to the Mutual Assistance in Criminal Matters Act 1987. This Act facilitates various forms of international mutual assistance in criminal matters, including the taking of evidence, search and seizure, witness arrangements, service of documents, and the restraint, forfeiture, and confiscation of proceeds of crime. The primary objective of the Act is to enable Australia to grant or request such assistance from, or provide it to, specified foreign countries, subject to the limitations, conditions, exceptions, or qualifications outlined in bilateral treaties. The Regulations specifically apply the Act to the Grand Duchy of Luxembourg, thereby enabling the implementation of the treaty signed between Australia and Luxembourg on 24 October 1988. This treaty obligates both countries to provide each other with the specified forms of assistance, and the Regulations ensure that Australia meets its domestic requirements for the treaty's entry into force.
Scope and Application
The Mutual Assistance in Criminal Matters (Grand Duchy of Luxembourg) Regulations 1994 No. 99 applies the Mutual Assistance in Criminal Matters Act 1987 to the Grand Duchy of Luxembourg, enabling Australia to provide or request specific forms of mutual assistance in criminal matters as outlined in the Act. This includes the taking of evidence, search and seizure, witness arrangements, service of documents, and the restraint, forfeiture and confiscation of proceeds of crime. The Act applies to the conduct and transactions of individuals and entities involved in criminal matters that fall within the scope of the bilateral treaty between Australia and Luxembourg. These regulations extend to the Commonwealth and are instrumental in giving effect to the international treaty, ensuring that the mutual assistance provisions are enforceable under domestic law. The regulations may be subject to limitations, conditions, exceptions, or qualifications as necessary to align with the terms of the treaty and may be further extended or restricted through subordinate instruments as required.
Key Provisions
The Mutual Assistance in Criminal Matters (Grand Duchy of Luxembourg) Regulations 1994 No. 99 (the Regulations) apply the Mutual Assistance in Criminal Matters Act 1987 (the Act) to the Grand Duchy of Luxembourg (Luxembourg) in accordance with the mutual assistance treaty signed by Australia and Luxembourg on 24 October 1988 (section 4). The Regulations specify that the Act will apply to Luxembourg from 15 May 1994, the date the treaty between Australia and Luxembourg comes into force (section 2). This application is subject to the terms and conditions of the treaty, which is detailed in the Schedule to the Regulations (section 4).
The Regulations impose several obligations on the parties governed by the Act. Firstly, they require the relevant authorities in Australia and Luxembourg to cooperate in providing the types of mutual assistance outlined in the Act, such as the taking of evidence, search and seizure, witness arrangements, service of documents, and the restraint, forfeiture, and confiscation of proceeds of crime (section 4). Additionally, the Regulations mandate that any requests for mutual assistance be made in accordance with the procedures and formalities specified in the treaty and the Act (section 4). Authorities in both countries must also ensure that any mutual assistance provided respects the legal rights and processes of the requesting and requested parties, adhering to any limitations, conditions, exceptions, or qualifications stipulated in the treaty (section 4).
Breaches of the Regulations or non-compliance with the obligations and requirements they impose can lead to significant consequences. While the Act itself does not specify particular offences or penalties within the Regulations, breaches of the mutual assistance treaty or non-compliance with the Act's provisions can result in civil or criminal penalties under the domestic laws of either country. In Australia, depending on the nature and severity of the breach, this could include fines, imprisonment, or other sanctions as prescribed by relevant Australian laws. It is important for the authorities to diligently adhere to the terms of the Regulations to avoid any potential legal repercussions.