EXPLANATORY STATEMENT
STATUTORY RULES 1989 No 116
Subject - Mutual Assistance in Criminal Matters Act 1987 Mutual Assistance in Criminal Matters (Japan) Regulations
Section 44 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)(b) provides that the regulations may make provision to the effect that the Act applies in relation to a specified foreign country subject to other limitations, conditions, exceptions or qualifications.
The proposed Regulations apply the Act to Japan with the exception of Parts IV (Arrangements for Persons to Give Evidence or Assist Investigations) and Part VI (Proceeds of Crime).
The proposed Regulations will enable Australia to provide to Japan the types of assistance referred to in the remaining Parts of the Act (Part III - search and seizure, Part V - custody of persons in transit, Part VII - service of documents; Part II assistance - taking of evidence and production of documents or other articles -does not require application of the Act to the requesting country) thereby providing reciprocity for the granting of assistance by Japan to Australia under its mutual assistance legislation.
Details of the proposed Regulations are as follows:
Clause 1 is a citation clause.
Clause 2 is an interpretation clause.
Subclause 1 of clause 3 provides that the Act applies in relation to Japan subject to the exceptions in subclause 2.
Subclause 2 of clause 3 provides that Parts IV and VI of the Act do not apply in relation to Japan.
Overview
The Mutual Assistance in Criminal Matters (Japan) Regulations 2004 were introduced to facilitate and formalise the mutual legal assistance between Australia and Japan in criminal matters. Enacted under the authority of the Mutual Assistance in Criminal Matters Act 1987, these regulations were developed in response to the need for a structured framework to enable Australia and Japan to assist each other in criminal investigations and proceedings. The Act was enacted by the Australian Parliament, with the objective of providing a legislative basis for international cooperation in criminal matters, ensuring that both countries can effectively exchange information and assistance. The proposed regulations aim to extend the application of the Act to Japan, excluding certain parts, to foster reciprocal assistance between the two nations.
Scope and Application
The Mutual Assistance in Criminal Matters (Japan) Regulations 2004 apply the Mutual Assistance in Criminal Matters Act 1987 to Japan, enabling Australia to provide Japan with mutual assistance in criminal matters. The Act applies to Japan in relation to the specified types of assistance, including search and seizure, custody of persons in transit, and service of documents, as outlined in Parts III, V, and VII of the Act. However, it is important to note that Parts IV and VI of the Act do not apply in relation to Japan. This means that the Act does not cover arrangements for persons to give evidence or assist investigations, as well as the proceeds of crime, in relation to Japan. The Regulations provide a framework for Australia and Japan to provide each other with mutual assistance in criminal matters, subject to certain limitations and exceptions. The application of the Act to Japan is subject to other limitations, conditions, exceptions, or qualifications as may be prescribed by the Governor-General in accordance with section 44 of the Act.
Key Provisions
The Mutual Assistance in Criminal Matters (Japan) Regulations 2004 (C2004L05412) primarily establish the application of the Mutual Assistance in Criminal Matters Act 1987 (the "Act") to Japan. According to clause 3, the Act applies to Japan with certain exceptions as detailed in subclause 2. Specifically, Parts IV (Arrangements for Persons to Give Evidence or Assist Investigations) and VI (Proceeds of Crime) of the Act do not apply to Japan. This means that while Australia can provide and receive assistance under the remaining parts of the Act, such as search and seizure, custody of persons in transit, and service of documents, the specific provisions regarding witness arrangements and proceeds of crime are excluded from this mutual arrangement.
The Regulations impose specific obligations on parties and entities governed by the Act. Primarily, they require that any requests for mutual assistance between Australia and Japan must be made in accordance with the provisions of the Act. This includes ensuring that requests are made through the appropriate channels and comply with the formalities and requirements set out in the Act. Additionally, the Regulations necessitate that any evidence or documents produced in response to a request must be done so within the legal framework provided by the Act, ensuring that the rights and protections afforded to individuals are upheld.
Failure to comply with the provisions of the Act and the Regulations can result in various legal consequences. Under the Act, breaches of its provisions can lead to civil and criminal penalties. For instance, knowingly providing false or misleading information in the course of a request for assistance can result in criminal charges, with penalties including fines and imprisonment. Additionally, any party that fails to comply with a lawful request for assistance could be subject to legal action, including the possibility of being held in contempt of court. The specific penalties for breaches are detailed within the Act and can vary depending on the nature and severity of the offence.
The Mutual Assistance in Criminal Matters (Japan) Regulations 2004, therefore, create a structured framework for the exchange of criminal assistance between Australia and Japan, while also setting clear obligations and potential penalties for non-compliance. By applying the Act to Japan with the specified exceptions, the Regulations aim to facilitate effective and lawful cooperation in criminal matters between the two countries.