Mutual Assistance in Criminal Matters (United Kingdom) Regulations 1999 1999 No. 310
EXPLANATORY STATEMENT
STATUTORY RULES 1999 No. 310
Issued by the Authority of the Minister for Justice and Customs
Mutual Assistance in Criminal Matters Act 1987
Mutual Assistance in Criminal Matters (United Kingdom) Regulations 1999
Section 44 of the Mutual Assistance in Criminal Matters Act 1987 ("the Act") provides that the Governor-General may make regulations 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 provides 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 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 location, restraint and forfeiture of proceeds of crime.
The Regulations will give effect in Australian domestic law to the Agreement between the Government of Australia and the Government of the United Kingdom of Great Britain and Northern Ireland concerning the Investigation, Restraint and Confiscation of the Proceeds and Instruments of Crime, signed at Canberra on 6 February 1997 ("the Agreement"). The Agreement, once in force, will bind Australia and the United Kingdom in international law to provide each other with the kinds of assistance listed above, and in addition to provide information and documents and other similar lawful assistance, for the purpose of identifying, restraining and confiscating the proceeds or instruments of crime.
In accordance with the Government's policy of greater parliamentary involvement in Australia's treatymaking processes, the Agreement was tabled in Parliament, together with a National Interest Analysis (NIA), on 13 May 1997. The period of fifteen sitting days following tabling elapsed on 27 June 1997. In its Eighth Report (June 1997) the Joint Standing Committee on Treaties supported implementation of the Agreement.
By a diplomatic note dated 2 November 1999 the United Kingdom notified Australia, in accordance with Article 16 of the Agreement, that its domestic requirements for the Agreement's entry into force had been completed. Australia's requirement for the Agreement's entry into force is the making of the Regulations. The Agreement enters into force 30 days after the date on which the Parties have notified each other that they have completed their respective requirements for the entry into force of the Agreement. The United Kingdom will be notified on 10 April 2000 (following expiry of the 15 sitting day disallowance period) that Australia's requirements for the Agreement's entry into force have been completed. Thirty days after that date, that is on 10 May 2000, the Agreement will enter into force. Accordingly, 10 May 2000 is also the commencement date of the Regulations.
As in all of Australia's mutual assistance in criminal matters treaties, the obligation to provide assistance is qualified by certain internationally accepted safeguards. For, example, assistance may be refused if the granting of a request would seriously impair the sovereignty, security, national interest or other essential interests of the requested Party, if provision of the assistance could prejudice an investigation in the requested Party or the safety of a person, on grounds of excessive cost to the requested Party or because confiscation is not available in the requested Party in relation to the offence in question.
Details of the Regulations are as follows:
Regulation 1 specifies the name of the Regulations.
Regulation 2 provides for the Regulations to commence on 10 May 2000, which is the date on which it is planned the Agreement will enter into force.
Regulation 3 provides that the Mutual Assistance in Criminal Matters Act 1987 applies to the United Kingdom subject to the Agreement.
Regulation 4 repeals the previous Mutual Assistance in Criminal Matters (United Kingdom) Regulations, which implement the Treaty between the Government of Australia and the Government of the United Kingdom of Great Britain and Northern Ireland concerning the Investigation of Drug Trafficking and Confiscation of the Proceeds of Drug Trafficking, done at Canberra on 3 August 1988 ("the 1988 Treaty"). The 1988 Treaty is superseded by the Agreement.
The Schedule to the Regulations contains the text of the Agreement.
Overview
The Mutual Assistance in Criminal Matters (United Kingdom) Regulations 1999 were enacted to implement the Agreement between the Government of Australia and the Government of the United Kingdom of Great Britain and Northern Ireland concerning the Investigation, Restraint and Confiscation of the Proceeds and Instruments of Crime, signed on 6 February 1997. These regulations were introduced to provide a legal framework for Australia to offer and receive specific forms of criminal justice assistance from the United Kingdom, including taking of evidence, search and seizure, arrangements for witnesses, and the location, restraint, and forfeiture of proceeds of crime. The primary objective of these regulations is to facilitate and formalise mutual assistance in criminal matters, ensuring that both nations can effectively collaborate in combating crime and its proceeds. The regulations are made under the authority of the Mutual Assistance in Criminal Matters Act 1987, and they were designed to comply with the policy of greater parliamentary involvement in Australia’s treaty-making processes, as evidenced by their tabling in Parliament alongside a National Interest Analysis. The commencement date of these regulations is aligned with the Agreement's entry into force, which is scheduled for 10 May 2000, ensuring that the legal provisions are in effect from the moment the Agreement becomes binding in international law.
Scope and Application
The Mutual Assistance in Criminal Matters (United Kingdom) Regulations 1999 give effect to the Agreement between Australia and the United Kingdom concerning the investigation, restraint and confiscation of the proceeds and instruments of crime. The Act applies to the United Kingdom and is subject to the terms of the Agreement. The Regulations provide for the implementation of this Agreement, which allows for various forms of international mutual assistance in criminal matters, including the taking of evidence, search and seizure, arrangements for witnesses to give evidence or assist in investigations, and the location, restraint and forfeiture of proceeds of crime. The Regulations also repeal the previous Mutual Assistance in Criminal Matters (United Kingdom) Regulations that implemented the 1988 Treaty concerning the investigation of drug trafficking and confiscation of the proceeds of drug trafficking. The scope of the Act is limited to the United Kingdom and is subject to the safeguards and exceptions contained in the Agreement, such as the refusal of assistance if it would seriously impair the sovereignty, security, national interest or other essential interests of the requested Party or if it would prejudice an investigation or the safety of a person.
Key Provisions
The Mutual Assistance in Criminal Matters (United Kingdom) Regulations 1999 primarily involve the implementation of the Agreement between Australia and the United Kingdom concerning the investigation, restraint, and confiscation of the proceeds and instruments of crime. Section 44 of the Mutual Assistance in Criminal Matters Act 1987 (the Act) empowers the Governor-General to make these regulations, which are necessary for the Act's effective operation. Regulation 3 specifies that the Act applies to the United Kingdom, subject to the Agreement. This means that Australia can now grant or request various forms of international mutual assistance to and from the United Kingdom, including the taking of evidence, search and seizure, witness arrangements, and forfeiture of crime proceeds.
These regulations impose specific obligations on parties involved in criminal investigations and proceedings between Australia and the United Kingdom. For instance, under Regulation 4, the previous Mutual Assistance in Criminal Matters (United Kingdom) Regulations, which implemented the 1988 Treaty, are repealed. This repeal is to ensure that the newer Agreement, which provides broader and more comprehensive provisions, takes precedence. Parties must now adhere to the terms of the Agreement, which includes obligations to provide information and documents, as well as other forms of lawful assistance, to facilitate the identification, restraint, and confiscation of crime proceeds and instruments.
In terms of enforcement, the Act provides for specific consequences in case of non-compliance with the regulations. While the explanatory statement does not detail specific offences or penalties within the text of the Regulations, it is understood that breaches of the Mutual Assistance in Criminal Matters Act 1987 could result in civil or criminal penalties. These could include fines or imprisonment, depending on the nature and severity of the breach. The precise penalties are generally outlined in the relevant sections of the primary Act itself, which may not be fully detailed in the explanatory statement but are part of the legislative framework that governs these mutual assistance regulations.