Mutual Assistance in Criminal Matters (Republic of Portugal) Regulations 1993 No. 241
EXPLANATORY STATEMENT
Statutory Rules 1993 No. 241
Issued by the Authority of the Attorney-General
Mutual Assistance in Criminal Matters Act 1987
Mutual Assistance in Criminal Matters (Republic of Portugal) Regulations
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. Section 7 of the Act provides that regulations may apply the Act to a specified foreign country subject to such limitations, conditions, exceptions, or qualifications as may be set out in the regulations. This allows for regulations to be made applying the Act to a specified foreign country by way of a mutual assistance in criminal matters treaty or otherwise.
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, service of documents and the restraint, forfeiture and confiscations of proceeds of crime. For Australia to grant or request assistance under the Act, with the exception of the taking of evidence, the Act must apply by regulations to the country concerned. The regulations may give effect to a treaty or otherwise.
Australia and Portugal signed a mutual assistance in criminal matters treaty in July 1989. The Treaty, once in force, binds the two countries under international law to provide the kinds of assistance listed above. Earlier this year the Republic of Portugal notified Australia, in accordance with Article 20 of the Treaty, that its domestic requirements for the Treaty's entry into force had been satisfied. The regulations will enable Australia to give domestic effect to the Treaty.
Details of the Regulations are as follows:
Regulation 1 is a citation provision.
Regulation 2 provides that the Regulations commence on 17 October 1993.
Regulation 3 is an interpretation provision.
Regulation 4 applies the Act to Portugal subject to the Treaty, a copy of the English language text of which is set out in the Schedule.
Overview
The Mutual Assistance in Criminal Matters (Republic of Portugal) Regulations 1993 No. 241 were enacted to provide a legal framework for Australia to implement the mutual assistance in criminal matters treaty signed with the Republic of Portugal in 1989. These regulations were issued by the authority of the Attorney-General and came into effect on 17 October 1993. The Mutual Assistance in Criminal Matters Act 1987 serves as the foundational piece of legislation, allowing for the establishment of regulations that apply the Act to specific foreign countries, such as Portugal, thereby enabling the provision of various forms of international mutual assistance in criminal matters including evidence collection, search and seizure, witness arrangements, service of documents, and the restraint, forfeiture, and confiscation of proceeds of crime. The primary policy objective of these regulations is to facilitate and formalise the process through which Australia can grant or request criminal assistance from Portugal, in accordance with the mutual treaty, ensuring both countries can effectively cooperate in criminal matters under international law.
Scope and Application
The Mutual Assistance in Criminal Matters (Republic of Portugal) Regulations 1993, made under the Mutual Assistance in Criminal Matters Act 1987, apply the Act to the Republic of Portugal for the purposes of providing and receiving international mutual assistance in criminal matters. This encompasses various forms of assistance, including taking of evidence, search and seizure, arrangements for witnesses to give evidence or assist in investigations, service of documents, and the restraint, forfeiture, and confiscation of proceeds of crime. The regulations are triggered by the mutual assistance in criminal matters treaty between Australia and Portugal, signed in July 1989, which binds both countries to provide the aforementioned kinds of assistance under international law. The regulations will take effect upon the notification by Portugal that its domestic requirements for the Treaty's entry into force have been satisfied, thereby enabling Australia to implement the Treaty domestically. The regulations include provisions for citation, commencement, and interpretation, with the English language text of the Treaty detailed in the Schedule.
Key Provisions
The Mutual Assistance in Criminal Matters (Republic of Portugal) Regulations 1993 No. 241 (the Regulations) are made under section 44 of the Mutual Assistance in Criminal Matters Act 1987 (the Act), allowing for the application of the Act to Portugal as per the treaty signed by Australia and Portugal in July 1989. Regulation 4 specifically applies the Act to Portugal, subject to the terms of the treaty, which is detailed in the Schedule to the Regulations. This application of the Act to Portugal enables Australia to provide and request various forms of mutual assistance in criminal matters as outlined in the Act, such as taking of evidence, search and seizure, arrangements for witnesses, service of documents, and the restraint, forfeiture and confiscation of proceeds of crime.
Under these Regulations, both Australian and Portuguese authorities have specific obligations and requirements to facilitate mutual assistance. Australian authorities must ensure compliance with the procedures and protocols outlined in the Act and the treaty. This includes adhering to formal request processes, ensuring the proper execution of letters of request, and following through with the legal formalities necessary to validate the mutual assistance. Portuguese authorities, on the other hand, must reciprocate by recognising and processing requests from Australian authorities according to their domestic laws and the terms of the treaty. Both countries must also ensure that the assistance provided respects the rights and liberties of individuals and adheres to the principles of mutual respect and fairness.
Failure to comply with the obligations set out in the Regulations can result in serious consequences. For instance, if an authority fails to properly process a request for mutual assistance or if there is any form of non-compliance with the treaty, this could lead to legal challenges or diplomatic disputes between the two countries. While the Act itself does not specify particular offences or penalties, breaches of the treaty or non-compliance with the mutual assistance process could potentially result in civil or criminal liabilities under the domestic laws of the respective countries. It is essential that all parties involved understand their obligations to avoid any legal repercussions.