Mutual Assistance in Criminal Matters (Money-Laundering Convention) Regulations (Amendment) 1998 No. 292
EXPLANATORY STATEMENT
STATUTORY RULES 1998 No. 292
Issued by the Authority of the Minister for Justice
Mutual Assistance in Criminal Matters Act 1987
Mutual Assistance in Criminal Matters (Money-Laundering Convention) Regulations (Amendment)
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 will insert the names of five countries in Schedule 3 to the Mutual Assistance in Criminal Matters (Money-Laundering Convention) Regulations (Statutory Rules 1997 No. 248) ("the existing Regulations"). These countries have become Parties to the Convention since Australia became a Party on 1 November 1997.
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 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 provides that the Regulations commence on gazettal.
Regulation 2 provides that the Mutual Assistance in Criminal Matters (Money-Laundering Convention) Regulations are amended as set out in the Regulations.
Regulation 3 provides that the names of the additional Parties are inserted in Schedule 3.
Overview
The Mutual Assistance in Criminal Matters (Money-Laundering Convention) Regulations (Amendment) 1998 No. 292 is an amendment to the Mutual Assistance in Criminal Matters (Money-Laundering Convention) Regulations 1997. The purpose of this amendment is to include five additional countries in Schedule 3 of the Regulations, which specifies the Parties to the Convention for the purposes of subsection 43A (1) of the Mutual Assistance in Criminal Matters Act 1987. The amendment was enacted by the Parliament of Australia and is intended to give effect to Australia's obligations under the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime. The policy objective of the amendment is to achieve broad international cooperation in search, seizure, and confiscation of the proceeds of crime by providing for the admissibility of documents in evidence and exempting them from legalisation formalities.
Scope and Application
The Mutual Assistance in Criminal Matters (Money-Laundering Convention) Regulations (Amendment) 1998 No. 292 amends the existing Mutual Assistance in Criminal Matters (Money-Laundering Convention) Regulations to update the list of countries that are Parties to the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime, which Australia ratified on 1 November 1997. These Regulations apply to Australia's international obligations under the Convention and the Mutual Assistance in Criminal Matters Act 1987, enabling the granting and requesting of mutual assistance in criminal matters, including search and seizure, witness assistance, and forfeiture of criminal proceeds. The updated list in Schedule 3 facilitates the admissibility of documents in Australian courts when they originate from the specified countries, provided the Attorney-General certifies their relevance under the Convention. The Regulations are effective for the five countries that have joined the Convention since Australia's ratification, ensuring compliance with Article 26 of the Convention, which exempts certain documents from legalisation formalities.
Key Provisions
The Mutual Assistance in Criminal Matters (Money-Laundering Convention) Regulations (Amendment) 1998 No. 292 amends the existing Mutual Assistance in Criminal Matters (Money-Laundering Convention) Regulations, which are governed by the Mutual Assistance in Criminal Matters Act 1987 (the Act). The key provisions of the Amendment Regulations, as outlined in the Explanatory Statement, include the insertion of the names of five countries in Schedule 3 to the existing Regulations. These countries have joined the Convention since Australia became a Party on 1 November 1997. This amendment ensures that the Act now applies to these additional countries subject to the Convention. The Convention, which was done at Strasbourg on 8 November 1990, aims to facilitate international cooperation in the search, seizure, and confiscation of proceeds from crime. To this end, the existing Regulations already provide for the application of the Act to countries that are Parties to the Convention, subject to the terms of the Convention.
The Amendment Regulations impose obligations on the Australian government to facilitate the exchange of information and evidence with the newly added countries, in accordance with the Convention. This includes obligations to assist in the identification, tracing, freezing, and seizing of property to prevent its disposal. By amending the Regulations to include these countries, the Australian government is reaffirming its commitment to international cooperation in combating money laundering and related criminal activities. The obligations extend to ensuring that documents provided by these countries in connection with requests for assistance under the Convention are admissible in Australian courts, provided that the Attorney-General issues a certificate stating that the document was provided by a specified Party to the Convention.
The Amendment Regulations also address the legal status of documents provided by Parties to the Convention, as outlined in subsection 43A (1) of the Act. This subsection provides that 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. By specifying the Parties to the Convention in Schedule 3, the Amendment Regulations ensure that Australian courts can accept documents from these countries without the need for additional formalities.
The Amendment Regulations do not explicitly state any new offences or penalties for breach. However, the existing Regulations, which the Amendment Regulations build upon, provide that any breaches of the Convention or the Regulations could potentially lead to legal consequences. This could include civil or criminal penalties, depending on the nature and severity of the breach. The maximum penalties for breaches of the Act could include fines and imprisonment, as specified in the relevant sections of the Act. The exact penalties would depend on the specific breach and the discretion of the court. The Amendment Regulations focus primarily on ensuring that the scope of the existing Regulations is expanded to include the additional countries, thereby facilitating broader international cooperation in criminal matters related to money laundering.