EXPLANATORY STATEMENT
Statutory Rules 2004 No. 375
Issued by the Authority of the Minister for Justice and Customs
Mutual Assistance in Criminal Matters Act 1987
Mutual Assistance in Criminal Matters (Greece) Regulations 2004
Section 44 of the Mutual Assistance in Criminal Matters Act 1987 (“the Act”) provides in part that the Governor-General may make regulations, not inconsistent with the Act, 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. Paragraph 7(2)(a) of the Act states that regulations may provide that the Act applies to a specified foreign country subject to any mutual assistance treaty between that country and Australia that is referred to in the regulations.
The Mutual Assistance in Criminal Matters (Greece) Regulations 2004 (“the Regulations”) give effect in Australian domestic law to the Treaty between Australia and the Hellenic Republic on Mutual Assistance in Criminal Matters, signed at Athens on 4 July 2002 (“the Treaty”). The Treaty, once in force, will bind Australia and Greece in international law to provide each other with mutual assistance in criminal matters including search and seizure, service of documents, taking of evidence, arranging for witnesses to give evidence or to assist in investigations, and the restraint, forfeiture and confiscation of proceeds of crime.
The Joint Standing Committee on Treaties recommended ratification of the Treaty in Report 48, tabled on 21 October 2002.
The Treaty enters into force 30 days after the date on which the Parties have notified each other that they have complied with their respective requirements for the entry into force of the Treaty. By a diplomatic note dated 15 November 2004, Greece notified Australia, in accordance with Article 22 of the Treaty, that its domestic requirements for the Treaty's entry into force had been complied with. Australia's requirement for the Treaty's entry into force is the making of the Regulations. Australia will notify Greece on 17 December 2004 that Australia has complied with the requirements for the Treaty's entry into force. Thirty days after that date, on 16 January 2005, the Treaty will enter into force. Accordingly, 16 January 2005 is also the commencement date of the Regulations.
As in all of Australia's mutual assistance in criminal matters treaties, the obligation to provide assistance is qualified by certain internationally accepted safeguards, chief amongst which are that assistance shall not be granted in relation to political or military offences or where a request is made for the purpose of prosecuting or punishing a person on account of his or her race, sex, religion, nationality or political opinions. Assistance shall also be refused where grant of a request would prejudice the sovereignty, security, national interest or other essential interests of the requested state. In addition, assistance may be refused where a request relates to an offence which carries the death penalty under the law of the requesting state.
Details of the Regulations are as follows:
Regulation 1 specifies the name of the Regulations.
Regulation 2 provides for the Regulations to commence on 16 January 2005, which is the date the Treaty will enter into force.
Regulation 3 defines Greece to mean the Hellenic Republic
Regulation 4 provides that the Mutual Assistance in Criminal Matters Act 1987 applies to Greece subject to the scheduled Treaty.
Schedule 1 sets out the text of the Treaty.
Overview
The Mutual Assistance in Criminal Matters (Greece) Regulations 2004 were introduced to facilitate the implementation of the Treaty between Australia and Greece on Mutual Assistance in Criminal Matters, signed on 4 July 2002, in domestic law. Enacted under Section 44 of the Mutual Assistance in Criminal Matters Act 1987, these regulations were made by the Minister for Justice and Customs, pursuant to the authority granted by the Act. They aim to provide a legal framework that enables the two countries to assist each other in criminal matters, including search and seizure, service of documents, and witness arrangements, subject to internationally accepted safeguards. The Regulations commenced on 16 January 2005, following the notification by Greece that its domestic requirements for the Treaty's entry into force had been met.
Scope and Application
The Mutual Assistance in Criminal Matters (Greece) Regulations 2004 are a legislative instrument designed to implement the Treaty between Australia and Greece on Mutual Assistance in Criminal Matters within Australian domestic law. The Act applies to the Hellenic Republic, commonly known as Greece, and is subject to the terms and conditions outlined in the Treaty scheduled in the Regulations. This legislation facilitates the provision of mutual assistance in criminal matters between Australia and Greece, including activities such as search and seizure, service of documents, taking of evidence, arranging for witnesses, and the handling of proceeds of crime. The application of the Mutual Assistance in Criminal Matters Act 1987 to Greece is contingent on the Treaty, and the Regulations ensure that the Act’s provisions are adapted to align with the mutual obligations between the two countries. The Treaty itself includes safeguards to ensure that assistance is not granted in cases involving political or military offences, or where the request is motivated by discriminatory purposes, and it also allows for refusal of requests that could prejudice the sovereignty, security, or essential interests of either country.
Key Provisions
The Mutual Assistance in Criminal Matters (Greece) Regulations 2004 (Regulations) provide the necessary framework for the application of the Mutual Assistance in Criminal Matters Act 1987 (Act) to Greece, as stipulated in section 44(1) of the Act. Regulation 4 of the Regulations explicitly applies the Act to Greece, subject to the Treaty between Australia and Greece, which is detailed in Schedule 1 of the Regulations. This Treaty, signed on 4 July 2002, mandates mutual assistance in criminal matters, including search and seizure, service of documents, and the taking of evidence, among other things. The Regulations officially commenced on 16 January 2005, the date on which the Treaty entered into force, as per Regulation 2.
The Act imposes several obligations on the parties and entities it governs. Firstly, it mandates that the Act applies to Greece under the conditions specified in the Treaty, which includes providing mutual assistance in criminal matters. The obligations are further defined by the Treaty itself, which outlines specific procedures and safeguards for providing such assistance. For example, requests for mutual assistance must be in writing and made through the appropriate authorities as designated by each country. The Treaty also stipulates that assistance cannot be provided for political offences or when the request would prejudice the sovereignty or security of the requested state. Moreover, the Act and the Treaty require that any assistance provided must adhere to the respective domestic laws and legal principles of the requesting and requested states.
Failure to comply with the requirements and obligations set out in the Act and the Regulations can result in legal consequences. Although the explanatory statement does not detail specific offences or penalties within the Regulations, the Act itself provides for various offences and penalties under section 74. These can include criminal penalties for knowingly making a false statement or providing false information in a request for mutual assistance, or for failing to comply with a lawful request. The maximum penalties for such offences can be substantial, including fines and imprisonment, depending on the severity of the breach. Civil consequences may also arise if the breach of the Act results in harm or loss to individuals or entities.
In summary, the Mutual Assistance in Criminal Matters (Greece) Regulations 2004 operationalise the Mutual Assistance in Criminal Matters Act 1987 in relation to Greece by applying the Act to the Hellenic Republic, subject to the Treaty between the two countries. The Regulations outline the commencement date and define terms such as "Greece" and mandate that mutual assistance in criminal matters be provided under the conditions and safeguards specified in the Treaty. Failure to comply with the Act and the Regulations can result in significant legal consequences, including criminal penalties and civil liabilities.