Mutual Assistance in Criminal Matters (Money-Laundering Convention) Amendment Regulations 2001 (No. 1) 2001 No. 202
EXPLANATORY STATEMENT
STATUTORY RULES 2001 No. 202
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 2001 (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 which are required or permitted by the Act, or which are necessary or convenient 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 a number of countries 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"). These countries are: Andorra; Estonia; Hungary; Liechtenstein; Malta; Poland; San Marino; The former Yugoslav Republic of Macedonia; and Slovakia. Each of these countries has recently ratified the Convention on Laundering, Search, seizure and Confiscation of the Proceeds from Crime. Except in the case of Slovakia, these ratifications have already taken effect.
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.
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 AttorneyGeneral 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 other than Schedule 2 commence on gazettal and that Schedule 2 commences on 1 September 2001.
Regulation 3 provides that Schedule 1 amends 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 Andorra; Estonia; Hungary; Liechtenstein; Malta; Poland; San Marino; and the Former Yugoslav Republic of Macedonia in the list of Parties.
Schedule 2 amends Schedule 3 to the existing Regulations by inserting 'Slovakia' in the list of Parties. This Schedule will commence on 1 September 2001, at the same time as the Convention enters into force for Slovakia.
Overview
The Mutual Assistance in Criminal Matters (Money-Laundering Convention) Amendment Regulations 2001 (No. 1) were enacted to address the gap in international cooperation in combating money laundering by amending the existing Mutual Assistance in Criminal Matters (Money-Laundering Convention) Regulations 1997. This legislative amendment was introduced by the Parliament of Australia under the authority granted by Section 44 of the Mutual Assistance in Criminal Matters Act 1987. The primary objective of these regulations is to facilitate broader international cooperation in criminal matters, particularly in the context of the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime, by recognising additional countries that have ratified the Convention. The regulations ensure that Australia can extend its obligations and cooperation to these newly ratified countries, thereby enhancing the effectiveness of mutual assistance in criminal matters related to money laundering.
Scope and Application
The Mutual Assistance in Criminal Matters (Money-Laundering Convention) Amendment Regulations 2001 (No. 1) pertain to the application and scope of the Mutual Assistance in Criminal Matters Act 1987, facilitating the implementation of international cooperation in criminal matters, particularly concerning the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime. These regulations amend the Mutual Assistance in Criminal Matters (Money-Laundering Convention) Regulations 1997 by updating the list of countries that are Parties to the Convention, thereby expanding the reach of the Act to include Andorra, Estonia, Hungary, Liechtenstein, Malta, Poland, San Marino, the Former Yugoslav Republic of Macedonia, and Slovakia. This amendment ensures that Australia can extend its mutual assistance obligations to these additional countries, facilitating the admissibility of evidence and the enforcement of confiscation orders in accordance with the Convention. The Regulations reflect Australia's commitment to international cooperation in combating money laundering and related criminal activities by aligning domestic law with the obligations of the Convention, which are designed to enhance the effectiveness of search, seizure, and confiscation efforts across borders.
Key Provisions
The Mutual Assistance in Criminal Matters (Money-Laundering Convention) Amendment Regulations 2001 (No. 1) primarily amend the Mutual Assistance in Criminal Matters (Money-Laundering Convention) Regulations 1997 by updating the list of countries that are parties to the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime. These regulations are made under the authority provided by section 44 of the Mutual Assistance in Criminal Matters Act 1987. The new list includes Andorra, Estonia, Hungary, Liechtenstein, Malta, Poland, San Marino, the former Yugoslav Republic of Macedonia, and Slovakia. This update ensures that Australia's domestic law is in line with the international commitments made under the Convention, particularly in relation to the admissibility of evidence in criminal proceedings and the facilitation of mutual assistance in criminal matters.
These regulations impose specific obligations on the parties involved in criminal matters that require international cooperation. Firstly, they require that evidence and documents provided by parties to the Convention are admissible in Australian courts without the need for additional legal formalities. This is stipulated in subsection 43A(1) of the Mutual Assistance in Criminal Matters Act 1987. Additionally, the regulations require Australian authorities to recognise and enforce confiscation orders issued by other parties to the Convention. This facilitates the global fight against money laundering by ensuring that proceeds of crime can be traced, seized, and forfeited across borders.
Breaches of these regulations, if they were to occur, could result in significant legal consequences. While the regulations themselves do not explicitly outline penalties for non-compliance, the Mutual Assistance in Criminal Matters Act 1987 provides a framework for penalties related to breaches of international mutual assistance requests. Under this Act, failure to comply with a request for international mutual assistance can result in fines and imprisonment. Specifically, under section 44 of the Act, a person who contravenes a provision of the Act can be fined up to 120 penalty units or imprisoned for up to two years, or both, for an individual, and up to 600 penalty units or six times the value of the benefit obtained, whichever is greater, for a body corporate. These penalties underscore the seriousness with which Australia treats international cooperation in criminal matters.