EXPLANATORY STATEMENT
Select Legislative Instrument 2010 No. 37
Issued by the authority of the Minister for Home Affairs
Mutual Assistance in Criminal Matters Act 1987
Mutual Assistance in Criminal Matters (United Arab Emirates) Regulations 2010
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 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.
The Regulations give effect in Australian domestic law to the Treaty between Australia and the State of the United Arab Emirates on Mutual Legal Assistance in Criminal Matters, signed at Hobart on 26 July 2007 (the Treaty). 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 Regulations apply the Act to the State of the United Arab Emirates, subject to the Treaty.
Once in force, the Treaty will create an obligation under international law for Australia and the State of the United Arab Emirates to provide each other with mutual legal 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 Treaty provides the framework within which Australia and the State of the United Arab Emirates will provide assistance to each other, including which authorities will make and receive requests, the information which will be required to support a request for assistance, the grounds on which a request for assistance could be refused, how requests for particular types of assistance will be managed, costs and other matters relating to mutual assistance and the operation of the Treaty.
As in all of Australia’s mutual assistance in criminal matters treaties, the Treaty includes internationally accepted safeguards, 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.
The requested country will also have the discretion to refuse a request on the grounds specified in Article 3(2). For example, a request may be refused if it relates to a prosecution or punishment for an offence which does not constitute an offence under the laws of the requested country, or if the request relates to an offence punishable by the death penalty, unless the requested country considers that the assistance should be provided having regard to the interests of international crime cooperation, the special circumstances of the case and the law of the requested country.
Consultation outside the Australian Government was not undertaken for this legislative instrument as it relates to criminal justice and law enforcement matters. The legislative instrument does not have a direct, or substantial indirect, effect on business and does not restrict competition. The Treaty was the subject of a public hearing by the Joint Standing Committee on Treaties, which recommended binding treaty action be taken in Report 91, tabled on 12 March 2008.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulations commence on the day the Treaty enters into force for Australia.
In accordance with Article 24 of the Treaty, the Treaty will enter into force on the thirtieth day after the date on which the Parties have exchanged instruments of ratification.
ATTACHMENT
Details of the Mutual Assistance in Criminal Matters (United Arab Emirates) Regulations 2010
Regulation 1 names the Regulations.
Regulation 2 provides that the Regulations commence on the day the Treaty enters into force.
Regulation 3 defines ‘Act’ to mean the Mutual Assistance in Criminal Matters Act 1987 and ‘United Arab Emirates’ to mean the State of the United Arab Emirates.
Regulation 4 provides that the Mutual Assistance in Criminal Matters Act 1987 applies to the United Arab Emirates subject to the Treaty and the Protocol.
Schedule 1 contains the text of the Treaty.
Overview
The Mutual Assistance in Criminal Matters (United Arab Emirates) Regulations 2010 are a legislative instrument designed to give effect to the Treaty between Australia and the State of the United Arab Emirates on Mutual Legal Assistance in Criminal Matters, which was signed on 27 July 2007. Enacted under the Mutual Assistance in Criminal Matters Act 1987, these regulations were introduced to facilitate the exchange of legal assistance between the two countries in criminal matters. This includes provisions for search and seizure, service of documents, taking of evidence, and other forms of mutual legal assistance. The regulations operate subject to the Treaty, which includes safeguards against requests related to political offences or those made for discriminatory purposes. The regulations do not require consultation outside the Australian Government due to their focus on criminal justice and law enforcement matters and have no direct or substantial indirect effect on business or competition. The Treaty was subject to a public hearing and recommended for binding treaty action by the Joint Standing Committee on Treaties.
Scope and Application
The Mutual Assistance in Criminal Matters (United Arab Emirates) Regulations 2010 apply the provisions of the Mutual Assistance in Criminal Matters Act 1987 to the United Arab Emirates, subject to the Treaty between Australia and the United Arab Emirates on Mutual Legal Assistance in Criminal Matters, signed at Hobart on 26 July 2007. The Act applies to the authorities designated by the Act in Australia, and the corresponding authorities in the United Arab Emirates as specified by the Treaty, and concerns the provision of mutual legal assistance in criminal matters. This includes activities such as 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 Regulations, therefore, cover conduct and transactions between the relevant authorities in both countries. Geographically, the Regulations apply within the Commonwealth of Australia and the United Arab Emirates, aligning with the jurisdictional reach of the Act and the Treaty. The Regulations do not specify exclusions, exemptions, or thresholds, but the Treaty includes safeguards such as refusal to assist in cases involving political offences or those made for discriminatory purposes. The Regulations may be extended or further defined through subordinate instruments as necessary to implement the Treaty.
Key Provisions
The Mutual Assistance in Criminal Matters (United Arab Emirates) Regulations 2010 (the Regulations) are designed to implement the Treaty between Australia and the State of the United Arab Emirates on Mutual Legal Assistance in Criminal Matters. They apply the Mutual Assistance in Criminal Matters Act 1987 (the Act) to the United Arab Emirates, subject to the Treaty. Regulation 4 of the Regulations is particularly significant as it explicitly states that the Act applies to the United Arab Emirates in accordance with the Treaty, ensuring that the legal framework for mutual assistance in criminal matters is aligned with the international agreement. The Regulations are structured to facilitate the cooperation between the two countries in criminal justice matters, ensuring that the provisions of the Treaty are effectively integrated into Australian domestic law.
The Regulations impose several obligations on the parties involved, primarily focusing on the implementation and enforcement of the Treaty. These obligations include the establishment of formal channels for communication and request submission between the designated authorities of both countries. The Regulations mandate that requests for mutual legal assistance must be made through these specified channels and must include all necessary information as stipulated in the Treaty. Additionally, the Regulations ensure that the assistance provided under the Treaty adheres to the safeguards and conditions outlined in the international agreement, such as the prohibition of assistance in cases involving political offences or persecution based on protected attributes. The authorities in both countries are required to handle requests with due diligence, ensuring that they comply with the Treaty's provisions and respect the legal principles and human rights standards of both jurisdictions.
Breaches of the Regulations, or failure to comply with the Treaty, can result in significant legal consequences. Under the Act, non-compliance with the requirements for mutual legal assistance can lead to civil or criminal penalties. For instance, if an authority fails to act on a legitimate request for assistance or provides incomplete or incorrect information, this could be considered a breach of the Act, potentially leading to legal action. The Act also allows for the imposition of fines and other penalties for non-compliance, although specific penalties are not detailed within the Regulations. Additionally, the Treaty itself includes provisions for the resolution of disputes and the enforcement of its terms, which could lead to further legal consequences for non-compliance. The seriousness of these penalties underscores the importance of adhering to the obligations set out in the Regulations and the Treaty.