EXPLANATORY STATEMENT
Select Legislative Instrument 2007 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 (The People’s Republic of China) Regulations 2007
The Mutual Assistance in Criminal Matters Act 1987 (the Act) allows for international assistance in criminal matters to be provided and obtained by Australia.
Section 44 of the Act provides, in part, that the Governor‑General may make regulations, not inconsistent with the Act, 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 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 (The People’s Republic of China) Regulations 2007 (the Regulations) gives effect in Australian domestic law to the Treaty between Australia and The People’s Republic of China on Mutual Legal Assistance in Criminal Matters, signed at Canberra on 3 April 2006 (the Treaty). The Treaty, once in force, will bind Australia and The People’s Republic of China in 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 to assist in investigations and 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 80, tabled on 19 October 2006.
As in all of Australia’s mutual assistance in criminal matters treaties, the Treaty contains internationally accepted safeguards, including that assistance shall not be granted for 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 the grant of a request would, in the opinion of the country receiving the request, prejudice its sovereignty or security.
The Treaty provides for discretionary grounds of refusal of a request for mutual legal assistance. Assistance 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 if provision of the assistance could prejudice an investigation, prosecution or proceeding in that country. The country receiving the request also has a discretion to refuse assistance if it believes that granting the request would prejudice its national or other essential interests. Assistance may also be refused where the request relates to the investigation, prosecution or punishment of a person for an offence in respect of which a penalty may be imposed which may be in conflict with the essential interests of the requested country. In the Agreed Minutes to the Treaty, Australia notes that the imposition of the death penalty may be in conflict with the essential interests of Australia, and China acknowledges Australia’s position. The Agreed Minutes, which do not form part of the Treaty, are mentioned in the Regulations by way of a note to regulation 4.
The Regulations commence on the day the Treaty comes 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 thirty days after the date of the later diplomatic note.
The Office of Regulation Review (Productivity Commission) has been consulted and has advised that a Regulation Impact Statement is not required.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Regulation 1 specifies the name of the Regulations.
Regulation 2 provides that the Regulations commence on the day that 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 People’s Republic of China subject to the Treaty.
Schedule 1 contains the text of the Treaty.
Overview
The Mutual Assistance in Criminal Matters (The People’s Republic of China) Regulations 2007 were enacted to facilitate and formalise international cooperation between Australia and The People’s Republic of China in criminal matters. This legislative instrument was introduced to give effect to the Treaty between Australia and The People’s Republic of China on Mutual Legal Assistance in Criminal Matters, signed in Canberra on 3 April 2006. The enactment of these regulations addresses the need for a structured legal framework to support cross-border legal assistance in criminal investigations and proceedings, ensuring compliance with both Australian and Chinese laws and international standards. The regulations were issued under the authority of the Minister for Justice and Customs and are consistent with the policy objectives outlined in the Mutual Assistance in Criminal Matters Act 1987, which aims to provide a mechanism for international cooperation in criminal matters while upholding essential legal and human rights protections.
Scope and Application
The Mutual Assistance in Criminal Matters (The People’s Republic of China) Regulations 2007 applies the Mutual Assistance in Criminal Matters Act 1987 to The People’s Republic of China, as governed by the Treaty between Australia and China on Mutual Legal Assistance in Criminal Matters. The Regulations allow for Australia and China to provide and obtain international assistance in criminal matters in accordance with the Treaty. This includes actions such as search and seizure, service of documents, taking of evidence, arranging for witnesses to give evidence or to assist in investigations and the location, restraint and forfeiture of instruments and proceeds of crime. The Regulations are in force from the date the Treaty comes into effect and apply to all relevant authorities and entities involved in criminal investigations and proceedings within Australia and China. The Regulations do not apply if the requested assistance would prejudice Australia's sovereignty, security, or essential interests or if it relates to political or military offences, or if it would be used to prosecute or punish someone based on their race, sex, religion, nationality or political opinions. The Regulations also incorporate agreed minutes noting that the imposition of the death penalty may be in conflict with Australia's essential interests.
Key Provisions
The Mutual Assistance in Criminal Matters (The People’s Republic of China) Regulations 2007 (Regulations) provide the legal framework for the implementation of the Treaty between Australia and the People’s Republic of China on Mutual Legal Assistance in Criminal Matters (Treaty). Regulation 4 specifies that the Mutual Assistance in Criminal Matters Act 1987 (Act) applies to the People’s Republic of China, subject to the Treaty, which governs the types of assistance that can be provided, including search and seizure, service of documents, taking of evidence, arranging for witnesses to give evidence, and the location, restraint, and forfeiture of instruments and proceeds of crime. The Treaty also includes safeguards to ensure that assistance is not provided for political or military offences or where it would prejudice the sovereignty or security of the requesting country. Additionally, there are discretionary grounds for refusal of assistance, such as when the acts or omissions sought would not constitute an offence under the laws of the requested country, or when granting the request would prejudice national or other essential interests.
The Regulations impose obligations on the parties involved to adhere to the provisions of the Treaty and to comply with the Act. For instance, the Act mandates that requests for mutual legal assistance must be made through designated Central Authorities in each country. Furthermore, the Regulations require that all requests and responses must be in writing and translated into the official language of the requested country. The Treaty and the Regulations also stipulate that all communications and information exchanged must be treated with confidentiality and used solely for the purposes of the investigation or prosecution of criminal matters. There are also provisions for the timely transmission of requests and responses to ensure that the assistance is provided as swiftly as possible.
The Regulations do not explicitly outline specific offences or penalties for non-compliance within their text. However, the Act under which these Regulations operate includes provisions for penalties in cases of non-compliance. Under section 44 of the Act, any person who fails to comply with a requirement or direction under the Act may be liable for a penalty. The penalty for an individual is up to 50 penalty units, and for a body corporate, it is up to 500 penalty units. Additionally, there may be civil or criminal consequences for breaches of the Treaty provisions, depending on the nature and severity of the breach. The maximum penalties and specific legal consequences would be determined under the applicable domestic laws of Australia or the People’s Republic of China.