EXPLANATORY STATEMENT
Select Legislative Instrument 2006 No. 292
Issued by the authority of the Minister for Justice and Customs
Mutual Assistance in Criminal Matters Act 1987
Mutual Assistance in Criminal Matters (Malaysia) Regulations 2006
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 Regulations give effect in Australian domestic law to the Treaty between the Government of Australia and the Government of Malaysia on Mutual Assistance in Criminal Matters, signed at Putrajaya on 15 November 2005 and an Exchange of Notes between Australia and Malaysia on the Treaty on Mutual Assistance in Criminal Matters, signed at Kuala Lumpur on 7 December 2005 (the Treaty). The Treaty, once in force, will bind Australia and Malaysia 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 assist in investigations, and the restraint, forfeiture and confiscation of proceeds of crime.
The Joint Standing Committee on Treaties recommended binding treaty action be taken in relation to the Treaty in Report 79, tabled on 19 October 2006.
As in all of Australia’s mutual assistance in criminal matters treaties, there are internationally accepted safeguards, including that assistance shall not be granted for political offences or purely 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 the grant of a request would prejudice the sovereignty, security, national interest or other essential interests of the requested state.
The Exchange of Notes makes it clear that Australia will provide assistance to Malaysia in accordance with the provisions of subsections 8(1A) and 8(1B) of the Act in cases where the assistance relates to an offence that is punishable by the death penalty.
Subsection 8(1A) provides that where a foreign country requests assistance where a person has been charged with, or convicted of, an offence which carries the death penalty, the Attorney-General must refuse to provide the assistance unless there are special circumstances.
Subsection 8(1B) provides that the Attorney-General may refuse assistance if he believes that the provision of assistance may result in the death penalty being imposed on a person and after taking into consideration the interests of international criminal cooperation, is of the opinion that in the circumstances of the case, the request should not be granted.
The Regulations commence on the day the Treaty comes into force for Australia. The Treaty will come into force thirty 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.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Regulation 1 names the Regulations.
Regulation 2 provides that the Regulations commence on the day the Treaty comes into force.
Regulation 3 defines Act to mean the Mutual Assistance in Criminal Matters Act 1987.
Regulation 4 provides that the Mutual Assistance in Criminal Matters Act 1987 applies to Malaysia subject to the Treaty and Exchange of Notes.
Schedule 1 contains the text of the Treaty.
Schedule 2 contains the text of the Exchange of Notes.
Overview
The Mutual Assistance in Criminal Matters (Malaysia) Regulations 2006 were enacted to facilitate the application of the Mutual Assistance in Criminal Matters Act 1987 to Malaysia, subject to the Treaty between the Government of Australia and the Government of Malaysia on Mutual Assistance in Criminal Matters, signed on 15 November 2005. These regulations were introduced to address the need for formalised procedures to assist in criminal investigations and proceedings between Australia and Malaysia, ensuring that both countries can cooperate effectively within the framework of their mutual treaty obligations. The regulations were issued by the Minister for Justice and Customs under the authority of the Act, with a clear policy objective to enhance international criminal cooperation while maintaining protections against the misuse of such cooperation for political or discriminatory purposes. The regulations provide a legal basis for the implementation of the Treaty in Australian domestic law, ensuring that both countries can assist each other in criminal matters in a manner consistent with their respective laws and international obligations.
Scope and Application
The Mutual Assistance in Criminal Matters (Malaysia) Regulations 2006 apply to the Mutual Assistance in Criminal Matters Act 1987 and its provisions for mutual legal assistance between Australia and Malaysia. These Regulations extend the application of the Act to Malaysia, subject to the Treaty between the Government of Australia and the Government of Malaysia on Mutual Assistance in Criminal Matters and the Exchange of Notes between Australia and Malaysia on the Treaty on Mutual Assistance in Criminal Matters. These instruments outline the procedures and conditions under which Australia and Malaysia can assist each other in criminal matters, including search and seizure, service of documents, evidence taking, witness arrangements, and the handling of proceeds of crime. The Regulations ensure that Australia’s obligations under the Treaty are reflected in domestic law and facilitate the practical implementation of mutual assistance requests between the two countries. Notably, the Regulations incorporate safeguards against the misuse of assistance requests for political or military offences and protect against requests that would prejudice Australia’s sovereignty or essential interests. Additionally, they address specific provisions regarding the death penalty, ensuring that Australia can exercise discretion in cases where assistance may result in capital punishment.
Key Provisions
The Mutual Assistance in Criminal Matters (Malaysia) Regulations 2006 provide the framework for Australia to extend the application of the Mutual Assistance in Criminal Matters Act 1987 to Malaysia. These regulations (Regulations) are a result of the Treaty between the Government of Australia and the Government of Malaysia on Mutual Assistance in Criminal Matters (Treaty) signed in 2005, and an Exchange of Notes between Australia and Malaysia (Exchange of Notes) signed in the same year. Regulation 4 stipulates that the Act applies to Malaysia, subject to the Treaty and Exchange of Notes.
The Act, as applied to Malaysia, mandates that Australia and Malaysia will provide mutual assistance in criminal matters, including search and seizure, service of documents, taking of evidence, arranging for witnesses to give evidence or assist in investigations, and the restraint, forfeiture and confiscation of proceeds of crime (Section 44(1)). The Treaty includes internationally accepted safeguards that ensure assistance will not be granted for political offences or purely military offences, or for purposes such as prosecuting or punishing a person based on their race, sex, religion, nationality, or political opinions. Assistance will also be refused if it would prejudice the sovereignty, security, national interest, or other essential interests of the requested state.
The obligations imposed by the Regulations on the parties include adherence to the safeguards outlined in the Treaty, ensuring that requests for assistance are legitimate and do not contravene the protections afforded by the Treaty. Australia must comply with the terms of the Exchange of Notes when providing assistance related to offences punishable by the death penalty. Specifically, the Attorney-General must refuse to provide assistance unless there are special circumstances (subsection 8(1A)), or may refuse assistance if they believe it may result in the death penalty being imposed and after considering the interests of international criminal cooperation (subsection 8(1B)).
Failure to comply with the Regulations could result in breaches of the Act, potentially leading to civil or criminal penalties. However, the specific offences, penalties, or consequences for breach are not detailed in the Regulations themselves but are governed by the provisions of the Mutual Assistance in Criminal Matters Act 1987. Penalties for breaches of the Act can vary widely depending on the nature and severity of the breach, but could include fines or imprisonment as determined by the relevant Australian courts.