Mutual Assistance in Criminal Matters (Monaco) Regulations 2001 2001 No. 139
EXPLANATORY STATEMENT
STATUTORY RULES 2001 No. 139
Issued by the Authority of the Minister for Justice and Customs
Mutual Assistance in Criminal Matters Act 1987
Mutual Assistance in Criminal Matters (Monaco) Regulations 2001
Section 44 of the Mutual Assistance in Criminal Matters Act 1987 ("the Act") provides that the Governor-General may make regulations 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 provides 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 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 and the location, restraint and forfeiture of proceeds of crime.
The Regulations give effect in Australian domestic law to the Treaty between Australia and the Government of His Serene Highness the Prince of Monaco on Mutual Assistance in Criminal Matters, signed at Paris on 13 September 1999 ("the Treaty"). The Treaty, once in force, will bind Australia and Monaco in international law to provide each other with the kinds of assistance listed above, and to provide documents and other records; locate and identify persons; serve documents; and provide other similar assistance consistent with the objects of the Treaty and not inconsistent with the law of the requested state.
In accordance with the Government's policy of greater parliamentary involvement in Australia's treatymaking processes, the Treaty was tabled in Parliament, together with a National Interest Analysis (NIA), on 12 October 1999. The period of fifteen sitting days following tabling has elapsed, allowing the Government to take binding treaty action in relation to the Agreement.
Monaco has notified Australia that, in accordance with Article 21 of the Treaty, its domestic requirements for the Treaty's entry into force have been complied with. Australia's requirement for the Treaty's entry into force is the making of the Regulations. 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. Monaco will be notified on 4 September 2001 that Australia's requirements for the Treaty's entry into force have been complied with. Thirty days after that date, that is on 4 October 2001, the Treaty will enter into force. Accordingly, 4 October 2001 is 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 4 October 2001, which is the date on which it is planned the Treaty will enter into force.
Regulation 3 provides that the Mutual Assistance in Criminal Matters Act 1987 applies to Monaco subject to the scheduled Treaty.
The Schedule to the Regulations contains the text of the Treaty between Australia and the Government of His Serene Highness the Prince of Monaco on Mutual Assistance in Criminal Matters, done at Paris on 13 September 1999.
Overview
The Mutual Assistance in Criminal Matters (Monaco) Regulations 2001, enacted under Section 44 of the Mutual Assistance in Criminal Matters Act 1987, were introduced to facilitate and formalise the exchange of criminal justice support between Australia and Monaco. This legislative measure addresses the need for a structured legal framework to enable both nations to provide assistance in criminal matters, including the gathering of evidence, search and seizure, witness arrangements, and the handling of crime proceeds, while adhering to specific international safeguards and treaty stipulations. The Regulations were made in accordance with the Government's policy to increase parliamentary involvement in treaty-making processes and were tabled in Parliament alongside a National Interest Analysis on 12 October 1999. The policy objective is to ensure that mutual assistance in criminal matters adheres to principles of reciprocity, sovereignty, and respect for human rights.
Scope and Application
The Mutual Assistance in Criminal Matters (Monaco) Regulations 2001 apply to Monaco and are a direct implementation of the Treaty between Australia and the Government of His Serene Highness the Prince of Monaco on Mutual Assistance in Criminal Matters. This treaty, signed on 13 September 1999 and set to enter into force on 4 October 2001, governs the provision of international mutual assistance in criminal matters between the two countries. This includes taking of evidence, search and seizure, witness arrangements, and the handling of proceeds of crime, all of which are facilitated under the Mutual Assistance in Criminal Matters Act 1987. The Regulations extend the Act's provisions to Monaco, subject to the terms of the Treaty. The application of the Act is governed by the Treaty's stipulations and the safeguards it contains, which include prohibitions against providing assistance for political or military offences, offences that carry the death penalty, or where the request is motivated by discriminatory purposes. Additionally, assistance may be refused if it would prejudice the sovereignty, security, national interest, or other essential interests of the requested state.
Key Provisions
The Mutual Assistance in Criminal Matters (Monaco) Regulations 2001 (Section 1) specify the details under which the Mutual Assistance in Criminal Matters Act 1987 will apply to Monaco. The Regulations, as stated in Section 2, commence on 4 October 2001, which is the date on which the Treaty between Australia and Monaco is scheduled to enter into force. Section 3 of the Regulations provides that the Act applies to Monaco, subject to the terms of the Treaty that is set out in the Schedule. This means that Australia can now legally request and provide certain types of mutual assistance in criminal matters to and from Monaco, such as taking evidence, search and seizure, and witness assistance, as long as these actions are in line with the Treaty.
The Regulations impose several obligations on the parties involved. Firstly, as per the Act and the Treaty, any mutual assistance must not pertain to political or military offences, or where the request is made for the purpose of prosecuting or punishing a person based on their race, sex, religion, nationality, or political opinions (Section 4). Secondly, assistance must not prejudice the sovereignty, security, national interest, or other essential interests of the requested state. Finally, assistance may be refused if the offence in question carries the death penalty under the requesting state's law. These conditions ensure that mutual assistance is provided in a manner that respects the legal and sovereign boundaries of both countries.
Any breaches of the Regulations or the Treaty may have legal consequences. While the explanatory statement does not detail specific penalties for violations, breaches of the Mutual Assistance in Criminal Matters Act 1987 can lead to both civil and criminal penalties, depending on the nature and severity of the breach. Under the Act, individuals or entities that fail to comply with the requirements or misuse the granted authority could face fines and imprisonment. The exact penalties would be determined by the courts, taking into account the specific circumstances of each case. Additionally, the breach of international treaty obligations could have diplomatic repercussions between Australia and Monaco, although these are not specified in the explanatory statement.