EXPLANATORY STATEMENT
Select Legislative Instrument 2008 No. 200
Issued by the authority of the Minister for Home Affairs
Mutual Assistance in Criminal Matters Act 1987
Mutual Assistance in Criminal Matters (Thailand) Regulations 2008
The Mutual Assistance in Criminal Matters Act 1987 (the Act) allows Australia to provide and obtain international assistance in criminal matters.
Section 44 of 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 and convenient to be prescribed for carrying out or giving effect to the Act. Paragraph 7(2)(a) of the Act states 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 Mutual Assistance in Criminal Matters (Thailand) Regulations 2008 (the Regulations) give effect in Australian domestic law to the Treaty between Australia and the Kingdom of Thailand on Mutual Assistance in Criminal Matters signed at Kuala Lumpur on 27 July 2006 (the Treaty). The Treaty, once in force, will bind Australia and Thailand under international law to provide each other with mutual assistance in criminal matters including: search and seizure, service of documents, taking of evidence, arranging for witnesses to give evidence or assist in investigations, and assistance with the location, restraint and forfeiture of instruments and proceeds of crime.
The Joint Standing Committee on Treaties recommended binding treaty action be taken in relation to the Treaty in Report 87, tabled on 16 August 2007.
There are internationally accepted safeguards in the Treaty, including that assistance will not be granted where a request relates to a political offence or 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 the grant of a request would, in the opinion of the country receiving the request, prejudice its sovereignty or security, or where the request relates to an offence for which the person has already been acquitted, or has served the sentence imposed.
The Treaty also provides for discretionary grounds of refusal of a request for mutual legal assistance. Assistance under the Treaty may be refused if the request relates to acts or omissions which would not constitute an offence under the laws of the requested country or could no longer be prosecuted in the requested country because of lapse of time. A request for assistance may also be refused if the provision of assistance could prejudice the safety of any person, impose an excessive burden on the resources of the requested country, or prejudice an investigation proceeding in that country. The country receiving the request also has a discretion to refuse assistance if the request relates to an offence punishable by the death penalty unless the requesting country gives sufficient assurances that the death penalty will not be pronounced or if pronounced will not be carried out.
The Regulations commence the day the Treaty enters into force for Australia. Under the terms of the Treaty, the Parties are to inform each other by diplomatic note when all necessary steps have been taken under their respective laws for entry into force of the Treaty. The Treaty enters into force 30 days after the date of the later diplomatic note.
Consultation was unnecessary for this legislative instrument as this instrument is of a minor or machinery nature and does not substantially alter existing arrangements. It has no direct or substantial indirect effect on business. The Treaty implemented by the Regulations was tabled in Parliament for 15 joint sitting days and was the subject of a public hearing by the Joint Standing Committee on Treaties. The Committee recommended binding treaty action be taken in relation to the Treaty in Report 87, tabled on 16 August 2007.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Details of the Regulations are set out in the Attachment.
ATTACHMENT
Details of the Mutual Assistance in Criminal Matters (Thailand) Regulations 2008
Regulation 1 specifies the name of the Regulations.
Regulation 2 provides that the Regulations commence on the day the Treaty comes into force.
Regulation 3 defines Act to mean the Mutual Assistance in Criminal Matters Act 1987.
Regulation 4 provides that the Mutual Assistance in Criminal Matters Act 1987 applies to the Thailand subject to the Treaty.
Schedule 1 contains the text of the Treaty.
Overview
The Mutual Assistance in Criminal Matters (Thailand) Regulations 2008 were enacted to implement the Treaty between Australia and the Kingdom of Thailand on Mutual Assistance in Criminal Matters, signed on 27 July 2006. These regulations were introduced to facilitate the legal and procedural framework required for mutual assistance in criminal matters between Australia and Thailand. Enacted under the Mutual Assistance in Criminal Matters Act 1987, these regulations were authorised by the Parliament of Australia, reflecting the legislative body's intent to strengthen international cooperation in criminal justice. The primary objective of these regulations is to formalise and govern the exchange of legal assistance, including search and seizure, witness testimonies, and forfeiture of criminal proceeds, ensuring that such assistance is provided in a manner consistent with both countries' laws and international standards.
Scope and Application
The Mutual Assistance in Criminal Matters Act 1987, as applied by the Mutual Assistance in Criminal Matters (Thailand) Regulations 2008, pertains to the legal framework governing the provision and receipt of international assistance in criminal matters between Australia and Thailand. This Act applies to persons, entities, and conduct as defined within the scope of the Treaty between Australia and Thailand on Mutual Assistance in Criminal Matters. The Act facilitates the execution of various criminal justice processes, including search and seizure, service of documents, evidence collection, witness arrangements, and the handling of crime instruments and proceeds. The application of the Act is specifically tailored to the provisions of the Treaty, which is referenced in the Regulations, and it operates under the mutual legal assistance treaty between the two countries. The geographic scope of the Act is international, extending its application to legal processes that involve cross-border elements as defined by the Treaty. The Act does not apply where the requested assistance would relate to political offences or where it would prejudice the sovereignty, security, or existing legal proceedings of the requested country. Furthermore, the Act includes provisions for discretionary refusal of assistance based on various grounds, such as the nature of the offence, the potential for prejudice, or the imposition of excessive burdens. The Regulations themselves are a legislative instrument under the Legislative Instruments Act 2003 and are designed to implement the Treaty into Australian domestic law, coming into effect on the day the Treaty enters into force for Australia.
Key Provisions
The Mutual Assistance in Criminal Matters (Thailand) Regulations 2008 (Regulations) implement the Treaty between Australia and the Kingdom of Thailand on Mutual Assistance in Criminal Matters (Treaty) within Australian domestic law. These Regulations are made under section 44 of the Mutual Assistance in Criminal Matters Act 1987 (Act). The Regulations come into effect on the day the Treaty enters into force, which occurs 30 days after the later of the two diplomatic notes exchanged by Australia and Thailand confirming that all necessary steps have been taken under their respective laws for the Treaty to take effect.
The Regulations, specifically Regulation 4, declare that the Act applies to Thailand, subject to the Treaty. The Treaty, which is detailed in Schedule 1 of the Regulations, outlines various forms of mutual assistance in criminal matters, including search and seizure, service of documents, taking of evidence, and arranging for witnesses to give evidence or assist in investigations. Importantly, the Treaty includes safeguards ensuring that assistance is not granted for political offences or where the grant of a request could prejudice the sovereignty or security of the requested country. Additionally, the Treaty provides discretionary grounds for refusal of a request, such as where the request relates to acts that would not constitute an offence under the laws of the requested country or could no longer be prosecuted due to the lapse of time.
The Regulations impose obligations on the parties involved in the mutual assistance process. Under the Treaty, both Australia and Thailand are required to provide each other with the specified forms of assistance in criminal matters. These obligations are subject to certain conditions and safeguards, such as the prohibition on granting assistance for political offences or where it could prejudice the requested country's sovereignty or security. Both countries must also ensure that the requested assistance does not involve acts or omissions that would not constitute an offence under their respective laws, and they must provide sufficient assurances if the requested assistance relates to an offence punishable by the death penalty.
Failure to comply with the obligations set out in the Treaty and the Regulations may result in various consequences. While the explanatory statement does not specify detailed penalties, breaches of the mutual assistance obligations could potentially lead to diplomatic tensions or legal disputes between Australia and Thailand. Additionally, refusal to grant assistance based on the Treaty's discretionary grounds may affect the effectiveness of the mutual legal assistance arrangement. It is important to note that any breaches of the Treaty's provisions would be subject to the international law principles governing treaties and mutual assistance agreements.