Mutual Assistance in Criminal Matters (Money-Laundering Convention) Amendment Regulations 1998 (No. 2) 1998 No. 336
EXPLANATORY STATEMENT
STATUTORY RULES 1998 No. 336
Issued by the Authority of the Minister for Justice and Customs
Mutual Assistance in Criminal Matters Act 1987
Mutual Assistance in Criminal Matters (Money-Laundering Convention) Amendment Regulations 1998 (No. 2)
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) (b) of the Act provides that regulations may provide that the Act applies to a foreign country subject to any multilateral mutual assistance treaty (being a treaty to which that country is a party) 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 restraint, forfeiture and confiscation of proceeds of crime.
The Regulations insert the name of Spain in Schedule 3 to the Mutual Assistance in Criminal Matters (Money-Laundering Convention) Regulations (Statutory Rules 1997 No. 248) ("the existing Regulations") and, incidentally, rename the existing Regulations in accordance with the revised naming conventions recently adopted for regulations.
The existing Regulations give effect in Australian domestic law to the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime, done at Strasbourg on 8 November 1990 ("the Convention"), in so far as it relates to mutual assistance in criminal matters. To achieve broad international co-operation in search, seizure and confiscation the Convention requires Parties to give effect to other Parties' confiscation orders and to assist in identifying and tracing property and freezing or seizing property to prevent its disposal. For this purpose the existing Regulations provide that, where a country is a Party to the Convention, the Act applies to that country subject to the Convention. Spain became a Party to the Convention on 1 December 1998.
Schedule 3 to the existing Regulations specifies the Parties to the Convention for the purposes of subsection 43A (1) of the Act, as provided by regulation 5. Subsection 43A (1) provides that, in a proceeding arising from a request by a foreign country for international assistance in a criminal matter, a document is admissible in evidence if the Attorney-General provides a certificate stating that the document was provided by a specified Party to the Convention in connection with a request for assistance of the type covered by the Convention. This gives effect to Australia's obligation under Article 26 of the Convention to exempt documents transmitted in application of the mutual assistance provisions of the Convention from legalisation formalities. Subsection 43A (2) provides that the regulations may specify the Parties to the Convention for the purposes of subsection 43A (1).
Details of the Regulations are as follows:
Regulation 1 names the Regulations.
Regulation 2 provides that the Regulations commence on gazettal.
Regulation 3 provides that Schedule 1 amends the Mutual Assistance in Criminal Matters (Money-Laundering Convention) Regulations ("the existing Regulations").
Clause [1] of Schedule 1 substitutes a new regulation 1 in the existing Regulations to rename them the Mutual Assistance in Criminal Matters (Money-Laundering Convention) Regulations 1997.
Clause [2] of Schedule 1 amends Schedule 3 to the existing Regulations by inserting the name of Spain in the list of Parties.
Overview
The Mutual Assistance in Criminal Matters (Money-Laundering Convention) Amendment Regulations 1998 (No. 2) were enacted to address the need for updating the list of countries participating in the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime. This legislation was introduced to ensure that Australia's mutual assistance in criminal matters aligns with the current parties to the Convention. The Regulations were authorised by the Minister for Justice and Customs under Section 44 of the Mutual Assistance in Criminal Matters Act 1987, which allows for the creation of regulations necessary to carry out or give effect to the Act. The policy objective of these Regulations is to facilitate international cooperation in criminal matters, particularly in the areas of money laundering, by ensuring that the list of countries covered by the Act is kept current and accurate.
Scope and Application
The Mutual Assistance in Criminal Matters (Money-Laundering Convention) Amendment Regulations 1998 (No. 2) amends existing regulations to include Spain as a party to the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime, done at Strasbourg on 8 November 1990. This amendment facilitates broader international cooperation in criminal matters by ensuring that the Mutual Assistance in Criminal Matters Act 1987 applies to Spain in accordance with the Convention's stipulations. The Act, which is applicable to the Commonwealth of Australia, allows for international mutual assistance in criminal matters, including the taking of evidence, search and seizure, witness arrangements, and the restraint, forfeiture, and confiscation of proceeds of crime. The Regulations are made under Section 44 of the Act and are designed to give effect to Australia's obligations under the Convention, particularly in relation to the admissibility of documents from parties to the Convention. Spain's inclusion in the list of Parties under the Convention, as reflected in the amendment, supports the mutual recognition of legal processes and documentation concerning money-laundering and related criminal activities between Australia and Spain.
Key Provisions
The Mutual Assistance in Criminal Matters (Money-Laundering Convention) Amendment Regulations 1998 (No. 2) amend existing regulations to include Spain as a Party to the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime. This is achieved through Schedule 3 of the Mutual Assistance in Criminal Matters (Money-Laundering Convention) Regulations, which specifies the countries to which the Act applies. Regulation 1 names the Regulations, and Regulation 2 specifies the commencement date as the date of gazettal. Regulation 3 amends the Mutual Assistance in Criminal Matters (Money-Laundering Convention) Regulations, with Clause [1] renaming them as the Mutual Assistance in Criminal Matters (Money-Laundering Convention) Regulations 1997, and Clause [2] adding Spain to the list of Parties in Schedule 3.
These Regulations impose obligations on the Australian government to facilitate international cooperation in criminal matters, particularly in relation to money-laundering. They ensure that Australia can request and provide assistance in taking evidence, search and seizure, witness arrangements, and the forfeiture of criminal proceeds with Spain, in accordance with the Convention. This includes adhering to the Convention’s requirements for the admissibility of documents in evidence and exempting them from legalisation formalities.
Under the Mutual Assistance in Criminal Matters Act 1987, failure to comply with the provisions of these Regulations could result in civil or criminal consequences. While specific offences and penalties are not detailed within the explanatory statement, breaches of international mutual assistance agreements can typically result in legal action for non-compliance, which could include fines or other penalties as prescribed by the Act. The precise consequences would depend on the nature and severity of the breach.
It is also noteworthy that the Regulations are instrumental in fulfilling Australia's obligations under the Convention, ensuring that it adheres to international standards for mutual legal assistance in criminal matters. This alignment is crucial for maintaining effective international cooperation in combating money-laundering and related criminal activities.