Mutual Assistance in Criminal Matters (Traffic in Narcotic Drugs and Psychotropic Substances) Regulations (Amendment) 1998 No. 26
EXPLANATORY STATEMENT
STATUTORY RULES 1998 No. 26
Issued by the Authority of the Minister for Justice
Mutual Assistance in Criminal Matters Act 1987
Mutual Assistance in Criminal Matters (Traffic in Narcotic Drugs and Psychotropic Substances) Regulations (Amendment)
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. Paragraph 7 (2) (b) of the Act provides that 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.
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 restraint, forfeiture and confiscation of proceeds of crime.
The Mutual Assistance in Criminal Matters (Traffic in Narcotic Drugs and Psychotropic Substances) Regulations ("the Convention Regulations") ensure that Australia can fulfil its mutual assistance in criminal matters obligations under the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances ("the Convention"), the text of which is set out in the Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990. Australia's obligations under the Convention include obligations to afford other Parties the widest measure of mutual legal assistance in investigations, prosecutions and judicial proceedings in relation to criminal offences listed in the Convention. The Convention Regulations provide that the Act applies subject to the Convention to all the countries listed in the Schedule. The countries listed are those which were Parties to the Convention when the Convention Regulations were made but which did not have a bilateral mutual assistance in criminal matters treaty with Australia.
The purpose of the Mutual Assistance in Criminal Matters (Traffic in Narcotic Drugs and Psychotropic Substances) Regulations (Amendment) ("the Regulations") is to ensure that Australia can fulfil its mutual assistance in criminal matters obligations under the Convention in relation to countries which have become Parties since the Convention Regulations were made and which become Parties in future. The Convention Regulations, as amended by the Regulations, provide that the Act applies to a Party subject to the Convention. This has ambulatory effect, covering countries which were Parties when the Regulations were made and additional countries as they become Parties. This type of provision, covering all Parties without specifying any by name, has been made possible by changes to section 7 of the Act which were introduced by the Mutual Assistance in Criminal Matters Legislation Amendment Act 1996.
By way of background, the Convention permits effect to be given to the human rights safeguards provided in the grounds for refusal set out in section 8 of the Act and in the bilateral mutual assistance in criminal matters treaties which Australia has with some other Parties. With respect to the bilateral treaties, Article 7 of the Convention, which deals with mutual assistance in criminal matters, permits the provisions of such a treaty to apply to requests made under Article 7 by a party to that treaty. In the case of Parties with which Australia does not have a bilateral treaty, paragraphs 8 to 19 of Article 7 apply. These provide that a request for assistance "shall be executed in accordance with the domestic law of the requested Party" (paragraph 12), and that a request may be refused if, among other things, "die requested Party considers that execution of the request is likely to prejudice its sovereignty, security, ordre public or other essential interests" or 'It would be contrary to the legal system of the requested Party relating to mutual legal assistance for the request to be granted" (paragraph 15).
Accordingly, Australia cannot be required to provide assistance under the Convention 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 or where a request relates to a political or military law offence. In addition, assistance will, except in special circumstances, be refused where a request relates to the prosecution or punishment of a person charged with an offence in respect of which the death penalty may be imposed and may be refused in any other case where the provision of assistance may result in the death penalty being imposed on a person.
Details of the Regulations are as follows:
Regulation 1 provides that the Regulations commence upon gazettal.
Regulation 2 provides that the Convention Regulations are amended as follows.
Regulation 3 amends regulation 3 of the Convention Regulations by inserting a definition of "Party".
Regulation 4 replaces regulation 4 of the Convention Regulations with a new regulation which provides that the Act applies to a Party subject to the Convention.
Regulation 5 provides that the Schedule to the Convention Regulations (which lists the countries to which the Act applies subject to the Convention) is omitted.
Overview
The Mutual Assistance in Criminal Matters (Traffic in Narcotic Drugs and Psychotropic Substances) Regulations (Amendment) 1998 No. 26 were enacted to address the need for Australia to meet its obligations under the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. The original Mutual Assistance in Criminal Matters (Traffic in Narcotic Drugs and Psychotropic Substances) Regulations were designed to ensure Australia could comply with the Convention's requirements regarding mutual assistance in criminal matters, but they needed to be updated to include new Parties to the Convention. The regulations were made under the authority of the Minister for Justice and pursuant to section 44 of the Mutual Assistance in Criminal Matters Act 1987, which allows for the making of regulations necessary to implement the Act. The policy objective is to ensure Australia can provide the widest measure of mutual legal assistance to all Parties to the Convention, facilitating international cooperation in combating the illicit traffic in narcotic drugs and psychotropic substances.
These regulations amend the existing Convention Regulations to apply the Mutual Assistance in Criminal Matters Act to all countries that are Parties to the Convention, without needing to list each country individually, thereby providing flexibility to accommodate new Parties. The Regulations also ensure that the human rights safeguards and grounds for refusal, as set out in the Act and the Convention, are respected, and that Australia can meet its international obligations while protecting its sovereignty and legal system.
Scope and Application
The Mutual Assistance in Criminal Matters (Traffic in Narcotic Drugs and Psychotropic Substances) Regulations (Amendment) 1998 applies to Australia's international obligations under the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. These Regulations amend the existing Mutual Assistance in Criminal Matters (Traffic in Narcotic Drugs and Psychotropic Substances) Regulations to ensure Australia can fulfil its mutual assistance in criminal matters obligations with respect to countries that have become parties to the Convention since the original Regulations were made. The Act applies to all countries that are Parties to the Convention, thereby extending its reach to include any new Parties as they accede to the Convention in the future. This application is governed by the Mutual Assistance in Criminal Matters Act 1987, which empowers the Governor-General to make regulations necessary for carrying out the Act, including those that specify countries to which the Act applies subject to the Convention. The Regulations operate nationally, ensuring that Australia's obligations under the Convention are met consistently across jurisdictions. The Act does not apply where the provision of assistance would be contrary to Australia's sovereignty, security, or legal system, or where it would result in the prosecution or punishment of a person based on protected characteristics, or in cases where the death penalty may be imposed.
Key Provisions
The Mutual Assistance in Criminal Matters (Traffic in Narcotic Drugs and Psychotropic Substances) Regulations (Amendment) 1998 No. 26 primarily modifies the existing Mutual Assistance in Criminal Matters (Traffic in Narcotic Drugs and Psychotropic Substances) Regulations to include new countries that have become parties to the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. This amendment ensures Australia can meet its obligations under the Convention for countries that have joined since the original regulations were made, as well as for any future countries that may join. Regulation 2 of the amendment specifically alters regulation 4 of the Convention Regulations to make the Act applicable to any country that is a Party to the Convention, thereby covering all current and future Parties without the need for individual identification. This change is facilitated by modifications to section 7 of the Mutual Assistance in Criminal Matters Act 1987, introduced by the Mutual Assistance in Criminal Matters Legislation Amendment Act 1996, which now allows for the Act to apply to all Parties without needing to specify each one individually.
The obligations under these Regulations are primarily for the Australian government to ensure that it can offer mutual assistance in criminal matters related to narcotics and psychotropic substances to any country that is a Party to the Convention. This includes obligations to assist in investigations, prosecutions, and judicial proceedings concerning criminal offences listed in the Convention. The Regulations must also respect the human rights safeguards provided within the Convention and in any bilateral treaties Australia has with other Parties. These safeguards include, but are not limited to, prohibitions on prosecuting or punishing a person on account of their race, sex, religion, nationality, or political opinions, and restrictions on providing assistance where it might result in the imposition of the death penalty. The Regulations also stipulate that requests for assistance may be refused if they are likely to prejudice a country's sovereignty, security, ordre public, or other essential interests, or if they contravene the domestic legal system of the requested Party.
Any breach of the obligations set forth in these Regulations could lead to various consequences, although the specific penalties are not detailed within the text provided. Generally, failure to comply with mutual assistance obligations under international treaties can result in diplomatic repercussions, including strained relations with other countries. In terms of criminal law, penalties for non-compliance with the Act could include fines and imprisonment, though the exact penalties would depend on the specific breach and relevant jurisdictional laws. The Mutual Assistance in Criminal Matters Act 1987 and its subsidiary legislation are designed to facilitate effective and lawful international cooperation, and breaches could undermine these efforts, leading to potential sanctions or other legal consequences both domestically and internationally.