Mutual Assistance in Criminal Matters (Money-Laundering Convention) Amendment Regulations 1999 (No. 1) 1999 No. 10
EXPLANATORY STATEMENT
STATUTORY RULES 1999 No. 10
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 1999 (No. 1)
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 names of Germany, Portugal and Latvia in Schedule 3 to the Mutual Assistance in Criminal Matters (Money-Laundering Convention) Regulations 1997 (Statutory Rules 1997 No. 248, as amended) ("the existing 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. Germany became a Party to the Convention on 1 January 1999, Portugal did so on 1 February 1999 and Latvia will become a Party on 1 April 1999.
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 43 A (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 and Schedule 1 commence on gazettal and that Schedule 2 commences on 1 April 1999.
Regulation 3 provides that Schedules 1 and 2 amend the Mutual Assistance in Criminal Matters (Money-Laundering, Convention) Regulations 1997 ("the existing Regulations").
Schedule 1 amends Schedule 3 to the existing Regulations by inserting the names of Germany and Portugal in the list of Parties.
Schedule 2 amends Schedule 3 to the existing Regulations by inserting the name of Latvia in the list of Parties.
Overview
The Mutual Assistance in Criminal Matters (Money-Laundering Convention) Amendment Regulations 1999 (No. 1) were enacted to align Australia's legislative framework with the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime. This legislation, issued by the authority of the Minister for Justice and Customs, seeks to facilitate broader international cooperation in combating money laundering and related crimes. The Regulations were introduced in response to the need for Australia to recognise new parties to the Convention, thereby enabling more comprehensive mutual assistance in criminal matters. The primary policy objective is to enhance the effectiveness of international mutual assistance by ensuring that Australia can cooperate with Germany, Portugal, and Latvia in accordance with the Convention's provisions.
Scope and Application
The Mutual Assistance in Criminal Matters (Money-Laundering Convention) Amendment Regulations 1999 (No. 1) implement changes under the Mutual Assistance in Criminal Matters Act 1987, specifically targeting the application of this Act to additional countries that are parties to the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime. The Regulations extend the scope of the Act to include Germany, Portugal, and Latvia, thereby facilitating international cooperation in criminal matters related to money laundering. The Act itself applies to the provision of international mutual assistance in criminal matters, including 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 geographic reach of these Regulations is international, applying to the named countries as parties to the Convention. There are no stated exclusions or exemptions within these Regulations; however, the Act's application is contingent upon the relevant multilateral mutual assistance treaties. The Regulations also enable the Act to apply to foreign countries, subject to any multilateral mutual assistance treaty referred to in the Regulations. The scope and application of the Act can be further extended or restricted through subordinate instruments, such as further amendments to the Regulations.
Key Provisions
The Mutual Assistance in Criminal Matters (Money-Laundering Convention) Amendment Regulations 1999 (No. 1) amend the existing regulations to include Germany, Portugal, and Latvia as parties to the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime. This is achieved by inserting the names of these countries in Schedule 3 of the Mutual Assistance in Criminal Matters (Money-Laundering Convention) Regulations 1997. This amendment allows Australia to extend the scope of its mutual legal assistance treaties to these new parties, facilitating broader international cooperation in criminal matters related to money laundering and the confiscation of proceeds from crime.
The Regulations impose several obligations on the entities they govern. Firstly, they mandate that Australia recognises and gives effect to the confiscation orders of Germany, Portugal, and Latvia in accordance with the Convention. This means that Australian courts must enforce these orders and recognise the legal status of the confiscated property. Additionally, the Regulations require Australian authorities to assist in identifying and tracing property that may be subject to confiscation by these countries. This includes freezing or seizing property to prevent its disposal and ensuring that such property can be confiscated and returned to the requesting country.
Failure to comply with the obligations set out in these Regulations can lead to legal consequences. Although the specific penalties are not detailed in the Explanatory Statement, breaches of mutual legal assistance obligations can generally result in civil or criminal penalties under the Mutual Assistance in Criminal Matters Act 1987. These penalties may include fines or imprisonment, depending on the severity of the breach and the discretion of the court. The precise penalties would be determined based on the nature and extent of the non-compliance, as well as the specific provisions of the Act and related legislation.