Mutual Assistance in Criminal Matters (Republic of Indonesia) Regulations 1999 1999 No. 50
EXPLANATORY STATEMENT
STATUTORY RULES 1999 No. 50
Issued by the Authority of the Minister for Justice and Customs
Mutual Assistance in Criminal Matters Act 1987
Mutual Assistance in Criminal Matters (Republic of Indonesia) Regulations 1999
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 location, restraint and forfeiture of proceeds of crime.
The Regulations give effect in Australian domestic law to the Treaty between Australia and the Republic of Indonesia on Mutual Legal Assistance in Criminal Matters, signed at Jakarta on 27 October 1995 ("the Treaty"). The Treaty, once in force, will bind Australia and Indonesia 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 consistent with the objects of the Treaty and 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. The period of fifteen sitting days following tabling elapsed on 27 June 1996, allowing the Government to take binding treaty action in relation to the Agreement.
By a diplomatic note dated February 1999 Indonesia notified Australia, in accordance with Article 22 of the Treaty, that its domestic 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 Parties have notified each other that they have complied with their respective requirements for the entry into force of the Treaty. Indonesia will be notified on 17 June 1999 that Australia's requirements for the Treaty's entry into force have been complied with. Thirty days after that date, that is on 17 July 1999, the Agreement will enter into force. Accordingly, 17 July 1999 is also the commencement date of the Regulations.
As in all of Australia's mutual assistance in criminal matters treaties, the obligation to provide assistance is qualified by certain internationally accepted safeguards, chief amongst which are that assistance shall not be granted in relation to political or military offences or 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. Assistance shall also be refused where grant of a request would prejudice the sovereignty, security, national interest or other essential interests of the requested state. In addition, assistance may be refused where a request relates to an offence which carries the death penalty under the law of the requesting state.
Details of the Regulations are as follows:
Regulation 1 specifies the name of the Regulations.
Regulation 2 provides for the Regulations to commence on 17 July 1999, which is the date on which it is planned the Agreement will come into force.
Regulation 3 is a definition provision.
Regulation 4 provides that the Mutual Assistance in Criminal Matters Act 1987 applies to Indonesia subject to the scheduled Treaty.
The Schedule to the Regulations contains the text of the Treaty between Australia and the Republic of Indonesia on Mutual Legal Assistance in Criminal Matters, done at Jakarta on 27 October 1995.
Overview
The Mutual Assistance in Criminal Matters (Republic of Indonesia) Regulations 1999 were enacted under the authority of the Minister for Justice and Customs, to give effect to the Mutual Assistance in Criminal Matters Act 1987. The primary objective of these regulations was to facilitate the implementation of the Treaty between Australia and the Republic of Indonesia on Mutual Legal Assistance in Criminal Matters, signed in Jakarta on 27 October 1995. This treaty, which was tabled in Parliament along with a National Interest Analysis on 21 May 1996, aims to enable the two countries to provide each other with various forms of mutual assistance in criminal matters, such as the taking of evidence, search and seizure, witness arrangements, and the forfeiture of proceeds of crime. These regulations were crucial in enabling Australia to meet its obligations under the treaty and ensuring that the provisions of the Mutual Assistance in Criminal Matters Act 1987 apply to Indonesia, subject to the treaty. The regulations entered into force on 17 July 1999, the same day the treaty was set to come into effect.
Scope and Application
The Mutual Assistance in Criminal Matters (Republic of Indonesia) Regulations 1999 apply to the Republic of Indonesia in relation to specific types of international mutual assistance in criminal matters, as outlined under the Mutual Assistance in Criminal Matters Act 1987. These types of assistance include the taking of evidence, search and seizure, arrangements for witnesses to give evidence or assist in investigations, and the location, restraint, and forfeiture of proceeds of crime. The Regulations give effect to the Treaty between Australia and Indonesia on Mutual Legal Assistance in Criminal Matters, which was signed on 27 October 1995. The Regulations specify that the Act applies to Indonesia subject to the Treaty, and they commenced on 17 July 1999, the date on which the Treaty is set to enter into force. The obligations to provide assistance are subject to internationally accepted safeguards, which include restrictions on assistance for political or military offences, or where a request is made for purposes that contravene human rights, or would prejudice the sovereignty, security, national interest, or other essential interests of the requested state.
Key Provisions
The Mutual Assistance in Criminal Matters (Republic of Indonesia) Regulations 1999 (the "Regulations") are made under Section 44 of the Mutual Assistance in Criminal Matters Act 1987 (the "Act") and they provide the framework for Australia to engage in international mutual assistance with Indonesia in criminal matters. Specifically, Regulation 4 of the Regulations applies the Act to Indonesia subject to the Treaty between Australia and Indonesia on Mutual Legal Assistance in Criminal Matters, which is set out in the Schedule to the Regulations. This means that the Act's provisions on taking evidence, search and seizure, witness arrangements, and forfeiture of crime proceeds are now applicable to Indonesia, in accordance with the Treaty. Regulation 2 sets the commencement date of the Regulations as 17 July 1999, the date on which the Treaty is set to enter into force.
The Regulations impose a number of obligations on the parties involved in mutual assistance under the Treaty. Primarily, these obligations are centred around the provision of assistance in criminal matters in a manner consistent with the Treaty and Australian law. The Regulations require that any assistance provided must adhere to internationally accepted safeguards, such as not being used for political or military offences or where the request is motivated by discriminatory purposes. Additionally, assistance must not be granted if it would prejudice Australia's sovereignty, security, or other essential interests. These obligations are designed to ensure that mutual assistance is conducted in a lawful and ethical manner.
Failure to comply with the obligations set out in the Regulations can lead to various consequences. Firstly, any breaches of the Treaty or the Regulations can be considered violations of international law, potentially affecting diplomatic relations between Australia and Indonesia. Within Australia, breaches of the Regulations may also result in criminal or civil penalties. Although the specific penalties are not detailed in the explanatory statement, breaches of similar regulations under the Act can attract significant fines and imprisonment terms, reflecting the seriousness with which such breaches are treated. The precise penalties would depend on the nature and severity of the breach, as well as the relevant provisions of the Act and any applicable domestic laws.