Mutual Assistance in Criminal Matters (Republic of Hungary) Regulations 1997 No. 59
EXPLANATORY STATEMENT
Statutory Rules 1997 No. 59
Issued by the Authority of the Attorney-General and Minister for Justice
Mutual Assistance in Criminal Matters Act 1987
Mutual Assistance in Criminal Matters (Republic of Hungary) Regulations
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 restraint, forfeiture and confiscation of proceeds of crime.
The Mutual Assistance in Criminal Matters (Republic of Hungary) Regulations ("the Regulations") give effect in Australian domestic law to the Treaty between Australia and the Republic of Hungary oil Mutual Assistance in Criminal Matters, signed at Budapest on 25 October 1995 ("the Treaty"). The Treaty, once in force, will bind the two countries in international law to provide each other with the kinds of assistance listed above, and in addition to provide documents and other records, locate and identify persons, serve documents and provide other similar assistance not inconsistent with the law of the requested state.
In accordance with the Government's policy of greater parliamentary involvement in Australia's treaty-making processes, the Treaty was tabled in Parliament, together with a National Interest Analysis (NIA), on 21 May 1996.
On 2 December 1996 the Republic of Hungary notified Australia, in accordance with Article 22 of the Treaty, that its domestic constitutional requirements for the Treaty's entry into force had 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 Contracting States have notified each other that they have complied with their respective requirements for the entry into force of the Treaty. The Republic of Hungary will be notified oil 26 March 1997 that Australia's requirements for the Treaty's entry into force have been complied with. Thirty days after that date, that is on 25 April 1997, the Treaty will enter into force. Accordingly, 25 April 1997 is also the commencement date of the Regulations.
As with all of Australia's mutual assistance in criminal matters treaties, the Treaty contains a range of human rights safeguards similar to those which are internationally accepted as applicable to extradition. Under the Treaty, assistance will not be provided 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 or where a request relates to a political or military law offence. In addition, assistance may be refused where a request relates to an offence in respect of which the death penalty may be imposed or executed.
Details of the Regulations are as follows:
Regulation 1 is a citation provision.
Regulation 2 provides for the Regulations to commence on 25 April 1997, which is the date on which it is planned the Treaty will come into force.
Regulation 3 is an definition provision.
Regulation 4 provides that the Mutual Assistance in Criminal Matters Act 1987 applies to the Republic of Hungary subject to the Treaty between Australia and the Republic of Hungary on Mutual Assistance in Criminal Matters.
The Schedule to the proposed Regulations contains the text of the Treaty between Australia and the Republic of Hungary on Mutual Assistance in Criminal Matters, done at Budapest on 25 October 1995.
Overview
The Mutual Assistance in Criminal Matters (Republic of Hungary) Regulations 1997 were enacted to facilitate the implementation of the Treaty between Australia and the Republic of Hungary on Mutual Assistance in Criminal Matters, signed on 25 October 1995. These regulations address the need for a legal framework within Australia to provide and receive various forms of criminal assistance from Hungary, including the taking of evidence, search and seizure, witness assistance, and the handling of proceeds of crime. Authorised by the Mutual Assistance in Criminal Matters Act 1987, the regulations were issued under the authority of the Attorney-General and Minister for Justice to ensure that Australia's participation in the treaty complies with domestic legal requirements. The policy objective behind these regulations is to enhance international cooperation in criminal matters while adhering to mutual legal standards and human rights protections, as outlined in the treaty. The Regulations came into force on 25 April 1997, the same day the treaty was set to enter into force, reflecting the government's commitment to involving Parliament in the treaty-making process.
Scope and Application
The Mutual Assistance in Criminal Matters (Republic of Hungary) Regulations 1997 are subordinate legislation made under the authority of the Mutual Assistance in Criminal Matters Act 1987. They apply to the Republic of Hungary in accordance with the Treaty between Australia and the Republic of Hungary on Mutual Assistance in Criminal Matters, signed in Budapest on 25 October 1995. The Regulations provide for the implementation of the Treaty within Australian domestic law, allowing for the exchange of mutual assistance in criminal matters such as the taking of evidence, search and seizure, witness arrangements, and the restraint, forfeiture and confiscation of criminal proceeds. The Regulations specify that the Mutual Assistance in Criminal Matters Act 1987 applies to the Republic of Hungary subject to the terms of the Treaty, which includes human rights safeguards and exclusions such as requests made for the purpose of prosecuting political or military law offences or offences which may incur the death penalty. The Regulations commence on 25 April 1997, the date on which the Treaty is set to enter into force.
Key Provisions
The Mutual Assistance in Criminal Matters (Republic of Hungary) Regulations 1997 (Cth) provide the legislative framework for the Treaty between Australia and the Republic of Hungary on Mutual Assistance in Criminal Matters, which came into effect on 25 April 1997. Under section 44 of the Mutual Assistance in Criminal Matters Act 1987 (Cth) ("the Act"), the Governor-General has the authority to make regulations that prescribe all matters necessary for implementing the Act. Specifically, regulation 4 of the Regulations states that the Act applies to the Republic of Hungary, subject to the Treaty. This Treaty enables Australia and Hungary to provide each other with various forms of assistance in criminal matters, including taking evidence, search and seizure, witness arrangements, and the handling of proceeds of crime. The Treaty also includes provisions for the exchange of documents and records, locating and identifying persons, and serving documents, provided these activities do not contravene the laws of the requested state.
The Regulations impose specific obligations on Australian authorities to comply with the Treaty's requirements when dealing with requests from Hungarian authorities for mutual assistance in criminal matters. These obligations include ensuring that any assistance provided does not contravene Australia's human rights standards, such as avoiding requests that target individuals based on race, sex, religion, nationality, or political opinion. Additionally, Australia may refuse assistance if the request pertains to a political or military offence or an offence where the death penalty may be imposed or executed. Australian authorities must also adhere to the Treaty's procedural requirements when processing requests and executing mutual assistance measures.
Failure to comply with the Regulations or misuse of the Treaty's provisions can result in various legal consequences. Under the Act, any person who contravenes a provision of the Regulations or an order made under the Act may be subject to civil or criminal penalties. For civil penalties, the maximum penalty can be significant, reflecting the seriousness of breaches related to international mutual assistance. Criminal penalties may also apply, depending on the nature and severity of the breach, and can include substantial fines or imprisonment. It is crucial for parties governed by the Regulations to be fully aware of their obligations and to ensure strict compliance to avoid these potential consequences.