EXPLANATORY STATEMENT
Selected Legislative Instrument 2006 No. 7
Issued by the authority of the Minister for Justice and Customs
Mutual Assistance in Criminal Matters Act 1987
Mutual Assistance in Criminal Matters (Suppression of the Financing of Terrorism) Regulations 2006
Section 44 of the Mutual Assistance in Criminal Matters Act 1987 (the Act) provides, in part, that the Governor-General may make regulations, not inconsistent with the Act, 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.
The Act allows for international assistance in criminal matters to be provided and obtained by Australia. While the Act allows Australia to make requests to and receive requests from all countries, mutual assistance requests are facilitated by treaty arrangements.
Subsection 7(1) of the Act provides that the Act applies to all foreign countries, but paragraph 7(2)(b) provides that the 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. Paragraph 7(3)(b) provides that if the regulations provide that the Act applies to a foreign country subject to a treaty which relates in part to the provision of assistance in criminal matters, then the Act applies subject to the limitations, conditions, exceptions or qualifications that are necessary to give effect, in relation to that country, to that part of the treaty that relates to the provision of assistance in criminal matters.
The proposed Regulations apply the Act to a foreign country that is a current State Party to the International Convention for the Suppression of the Financing of Terrorism (the Convention), subject to the Convention. This allows Australia to make and receive requests to and from a State Party to the Convention for mutual assistance with an offence in the Convention. The text of the Convention is included in Schedule 1 the Regulations.
Australia ratified the Convention on 26 October 2002. The purpose of the Convention is to suppress acts of terrorism by depriving terrorists and terrorist organisations of the financial means to commit such acts. It does so by obliging State Parties to criminalise and take other measures to prevent the provision or collection of funds for the purpose of committing terrorist acts and to cooperate with other States Parties in the prevention, detection, investigation and prosecution of terrorist financing.
The Convention contains obligations for mutual assistance in criminal matters in Article 12 and 16. These obligations apply only to other States Parties to the Convention, and the Act does not require that States Parties be specifically named.
The Regulations commenced on the day after they were registered.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Details of the Regulations are as follows:
Regulation 1 names the Regulations.
Regulation 2 provides that the Regulations commence on the day after they are registered.
Regulation 3 sets out the definitions used in the regulations.
Regulation 4 applies the Act to the States party to the Convention, subject to the Convention.
Schedule 1 inserts the text of the Convention.
Overview
The Mutual Assistance in Criminal Matters (Suppression of the Financing of Terrorism) Regulations 2006 were enacted to facilitate Australia's compliance with the International Convention for the Suppression of the Financing of Terrorism. This legislation was introduced to address the problem of providing and receiving international assistance in criminal matters, particularly in relation to the financing of terrorism. The Mutual Assistance in Criminal Matters Act 1987, enacted by the Australian Parliament, allows for the provision and receipt of mutual assistance in criminal matters, but the 2006 Regulations specifically apply the Act to countries that are State Parties to the aforementioned Convention. The policy objective of these Regulations is to give effect to the Convention by allowing Australia to make and receive requests for mutual assistance in criminal matters from and to State Parties to the Convention, in line with the Convention's provisions. The Regulations commenced on the day after they were registered and are a legislative instrument under the Legislative Instruments Act 2003.
Scope and Application
The Mutual Assistance in Criminal Matters (Suppression of the Financing of Terrorism) Regulations 2006 apply the Mutual Assistance in Criminal Matters Act 1987 to any foreign country that is a State Party to the International Convention for the Suppression of the Financing of Terrorism, subject to the terms and conditions of that Convention. This means that Australia can make and receive requests to and from any country that has signed and ratified the Convention for mutual assistance in relation to offences covered under the Convention. The Regulations commenced on the day after they were registered and are a legislative instrument under the Legislative Instruments Act 2003. The Regulations contain a definition section and include the text of the Convention in Schedule 1. The purpose of the Convention, which Australia ratified on 26 October 2002, is to suppress acts of terrorism by depriving terrorists and terrorist organisations of the financial means to commit such acts. This is achieved through the criminalisation of the provision or collection of funds for the purpose of committing terrorist acts, as well as the cooperation between State Parties in the prevention, detection, investigation and prosecution of terrorist financing.
Key Provisions
The Mutual Assistance in Criminal Matters (Suppression of the Financing of Terrorism) Regulations 2006 (the Regulations) establish the framework for Australia to provide and receive mutual assistance in criminal matters related to the financing of terrorism from countries that are State Parties to the International Convention for the Suppression of the Financing of Terrorism (the Convention). According to regulation 4, the Mutual Assistance in Criminal Matters Act 1987 (the Act) applies to these countries, subject to the Convention. This means that Australia can make and receive requests for assistance in criminal matters concerning terrorism financing from countries that are part of the Convention. The text of the Convention is incorporated in Schedule 1 of the Regulations.
The Regulations impose specific obligations on the parties involved. For instance, they require Australia and other State Parties to the Convention to provide mutual assistance in criminal matters related to the financing of terrorism. This includes the exchange of information, evidence, and other forms of cooperation to prevent, detect, investigate, and prosecute terrorist financing activities. The Act and the Regulations work together to ensure that these obligations are met within the framework of the Convention.
Failure to comply with the obligations set out in the Act and the Regulations can lead to various consequences. While the specific offences and penalties are not detailed in the explanatory statement, it is understood that breaches of the Act or the Regulations could result in both civil and criminal penalties. These could include fines or imprisonment, depending on the severity of the breach and the jurisdiction in which it occurs. The exact penalties would be determined by the relevant courts and would be consistent with Australian law.
In summary, the Regulations facilitate the application of the Act to State Parties of the Convention, enabling Australia to engage in mutual assistance related to the financing of terrorism. They impose clear obligations on Australia and other State Parties to cooperate in criminal matters concerning terrorist financing. Any breaches of these obligations could result in significant civil and criminal penalties.