Mutual Assistance in Criminal Matters (United Kingdom) Regulations 1997 No. 2
EXPLANATORY STATEMENT
Statutory Rules 1997 No. 2
Issued by the Authority of the Attorney-General and Minister for Justice
Mutual Assistance in Criminal Matters Act 1987
Mutual Assistance in Criminal Matters (United Kingdom) Regulations
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)(a) of the Act (as amended by item 3 of Schedule 1 of the Mutual Assistance in Criminal Matters Legislation Amendment Act 1996 (MA Amendment Act)) provides that regulations may apply the Act to a foreign country subject to any mutual assistance treaty between Australia and another country. The effect of section 4 of the Acts Interpretation Act 1901 is that the power expressed in an Act to make regulations may be exercised before the Act comes into operation as if it had come into operation and that any regulations so made take effect from the time when the Act concerned comes into operation.
The regulations are consequential upon the proclamation of Schedule 1 of the MA Amendment Act on 1 March 1997. Separate Executive Council Minutes will be submitted in relation to the proclamation and to other instruments which are also consequential upon the proclamation. Those relate to;
* Commencement of Schedules 1, 2 and 3 of the MA Amendment Act
* Mutual Assistance in Criminal Matters Act 1987 Regulations (Repeal)
* Mutual Assistance in Criminal Matters Regulations (Amendment)
* Magistrate Arrangements between the Commonwealth and Norfolk Island
The purpose of these regulations is to continue in force the "Drug Trafficking Treaty" with the United Kingdom (UK) (the treaty provides for mutual assistance in investigation of drug trafficking and for confiscation of proceeds of drug trafficking) and to also repeal the current "nontreaty" application of the Act to the UK in all other matters (namely the unilateral application of the Act by regulation to the UK without the existence of a treaty).
The reason for the repeal of the "non-treaty" application of the Act is because the MA Amendment Act repeals the prior requirement for application of the Act by regulation to a foreign country before mutual assistance could be granted or requested (this amendment will enable Australia to more expeditiously request and provide mutual assistance). Upon proclamation of Schedule 1 of the MA Amendment Act the Act will apply to all foreign countries. Australia's existing international obligations under bilateral and multilateral mutual assistance treaties which are already in force are met by "savings" provisions in Schedule 1 of the MA Amendment Act which continue such treaties in force.
Schedule 1 of the MA Amendment Act enables new regulations to be made to give effect to new mutual assistance treaties which are entered into in the future. It is intended that new bilateral mutual assistance treaties will only be entered into with other countries where the domestic legal requirements of the other country for it to be
able to provide mutual assistance to Australia include that there be a treaty in existence with Australia.
The current UK regulations contain both a treaty application of the Act to the UK and a "non-treaty" application of the Act to the UK (UK law requires that the UK have a treaty in place for it to be able to provide mutual assistance in drug trafficking matters but does not require it to have a treaty in place for it to be able to provide mutual assistance in any other areas). It is not considered appropriate to rely on the "savings" provisions in Schedule 1 of the MA Amendment Act in relation to that part of the existing UK regulations which give effect to the "Drug Trafficking Treaty" and to only repeal the application of the Act in relation to other matters. It is considered more appropriate to repeal the whole of the existing UK regulations and to remake the treaty application part of those regulations.
All other existing regulations under the Act applying the Act to a country on a "non-treaty" basis are repealed by the Mutual Assistance in Criminal Matters Act 1987 Regulations (Repeal) (see separate Executive Council Minute).
Details of the Regulations are as follows:
Regulation 1 is a citation provision.
Regulation 2 is a commencement provision.
Regulation 3 is a definition provision.
Regulation 4 applies the Act to the United Kingdom subject to the "Drug Trafficking Treaty" between the Government of Australia and the Government of the United Kingdom and Northern Ireland.
Regulation 5 repeals the earlier UK regulations (Statutory Rules 1995 No. 187).
The Schedule to the proposed Regulations contains the text of the "Drug Trafficking Treaty".
Overview
The Mutual Assistance in Criminal Matters (United Kingdom) Regulations 1997 were enacted to address the need for a streamlined approach to applying the Mutual Assistance in Criminal Matters Act 1987 to the United Kingdom, particularly in the context of drug trafficking. This was achieved through the Mutual Assistance in Criminal Matters Legislation Amendment Act 1996, which amended the Act to allow for the application of the Act to foreign countries based on existing mutual assistance treaties rather than requiring separate regulatory action for each country. The regulations were issued by the authority of the Attorney-General and Minister for Justice, ensuring that the legislative changes were implemented in line with the policy objective of facilitating more expeditious mutual assistance requests and responses. The key purpose of these regulations was to continue the "Drug Trafficking Treaty" with the United Kingdom, while repealing the previous "non-treaty" application of the Act to the UK in other matters, reflecting Australia's updated international obligations and treaty-based approach to mutual assistance.
Scope and Application
The Mutual Assistance in Criminal Matters (United Kingdom) Regulations 1997 applies to the United Kingdom and is specifically tailored to facilitate mutual assistance in criminal matters under the "Drug Trafficking Treaty" between Australia and the UK. This Act applies to the conduct and transactions related to drug trafficking and the confiscation of proceeds derived from such activities, as outlined in the treaty. These regulations are made under the authority of the Mutual Assistance in Criminal Matters Act 1987, which empowers the Governor-General to enact regulations necessary for the Act's implementation. The scope of these regulations is confined to the provisions of the Drug Trafficking Treaty, effectively replacing previous non-treaty applications of the Act to the UK in other areas of mutual assistance. The regulations also repeal the former UK regulations to streamline and formalise the application of the Act under the treaty framework. These regulations extend to the Commonwealth of Australia and are applicable in accordance with the mutual assistance treaty provisions with the UK.
Key Provisions
The Mutual Assistance in Criminal Matters (United Kingdom) Regulations 1997 No. 2 (the Regulations) are made under the authority of Section 44 of the Mutual Assistance in Criminal Matters Act 1987 (the Act). These Regulations aim to continue the application of the "Drug Trafficking Treaty" between Australia and the United Kingdom, while repealing the previous "non-treaty" application of the Act to the UK in all other matters. The Regulations are designed to align with changes introduced by the Mutual Assistance in Criminal Matters Legislation Amendment Act 1996 (MA Amendment Act), which removes the prior requirement for the Act to be applied by regulation to a foreign country before mutual assistance can be granted or requested. Regulation 4 applies the Act to the United Kingdom based on the "Drug Trafficking Treaty" between the two governments, while Regulation 5 repeals the previous UK regulations (Statutory Rules 1995 No. 187). The Schedule to the Regulations contains the text of the "Drug Trafficking Treaty".
The Regulations impose obligations on the parties involved in the mutual assistance process between Australia and the United Kingdom. The Act and the Regulations outline the procedures and requirements for requesting and providing mutual assistance in criminal matters, particularly in the context of drug trafficking investigations and the confiscation of proceeds from drug trafficking activities. These obligations include the duty to provide assistance in a timely and efficient manner, as well as the protection of personal information and respect for the sovereignty and legal systems of both countries.
Breach of the obligations outlined in the Act and the Regulations may result in various civil, criminal, or administrative consequences. The Act and the Regulations provide for the imposition of penalties for non-compliance, including fines and imprisonment for individuals and corporations. The maximum penalties for offences under the Act depend on the specific offence and the jurisdiction in which it is committed. Additionally, failure to comply with the mutual assistance obligations may lead to diplomatic tensions between Australia and the United Kingdom, potentially impacting future cooperative efforts in criminal matters.
In conclusion, the Mutual Assistance in Criminal Matters (United Kingdom) Regulations 1997 No. 2 play a crucial role in facilitating the exchange of information and cooperation between Australia and the United Kingdom in criminal matters, particularly in the area of drug trafficking. The Regulations outline the obligations and requirements for both countries in providing mutual assistance and establish consequences for non-compliance with these obligations. The Regulations also reflect changes introduced by the MA Amendment Act, which streamline the application of the Act to foreign countries and facilitate more efficient mutual assistance processes.