Mutual Assistance in Criminal Matters (United Kingdom) Regulations (Amendment) 1993 No. 111
EXPLANATORY STATEMENT
Statutory Rules 1993 No. 111
Issued by the authority of the Attorney-General
Mutual Assistance in Criminal Matters Act 1987
Mutual Assistance in Criminal Matters (United Kingdom) 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 Section 7 of the Act provides that regulations may apply the Act to a specified foreign country subject to limitations, conditions, exceptions, or qualifications as are necessary to give effect to a bilateral mutual assistance treaty between Australia and that country. Section 7 also provides that regulations may apply the Act to a specified foreign country other than by way of a mutual assistance treaty.
Pursuant to the above provisions, the Mutual Assistance in Criminal Matters (United Kingdom) Regulations (the principal Regulations) were made in 1990. The principal Regulations provide that the Act applies to the United Kingdom (UK) subject to the Treaty between the Australian and UK Governments concerning the Investigation of Drug Trafficking and the Confiscation of the Proceeds of Drug Trafficking.
The principal Regulations create a mutual assistance in criminal matters relationship between Australia and the UK limited to drug trafficking and related matters.
Australia cannot request or provide mutual assistance requests outside the drugs area involving the UK where a prerequisite for such assistance is that the Act apply to the country concerned.
A major investigation into alleged breaches of Australian federal law has Progressed to the point where it is necessary to request 'search and seizure' assistance from the UK authorities. Australia cannot request or provide 'search and seizure' assistance if Part III of the Act does not apply to the country concerned. As the investigation in question relates to a non-drug matter, the principal Regulations do not allow for Australia to seek 'search and seizure' assistance in this matter. To enable the investigation in question to progress, Part III of the Act is made to apply to the UK for non-drug matters.
The Regulations amend the principal Regulations to apply Part III of the Act to the UK in respect of non-drug matters while preserving the treaty relationship in drug matters.
Details of the Regulations are as follows:
Regulation 1 provides that the principal Regulations are amended as set out in these Regulations.
Regulation 2 amends the interpretation regulation 3 in the principal Regulations to include a reference to the Treaty.
Regulation 3 omits regulation 4 in the principal Regulations which applies the Act to the UK subject to the Treaty and substitutes a new regulation 4 which has two effects. First, it applies the Act to the UK subject to the Treaty in matters within the scope of the Treaty. Second, it applies Part III of the Act to the UK in other matters and in doing so applies Parts I and VIII which are necessary for the effective operation of Part III. It also applies Part II. Part II applies in any event but is included in the Regulations to alleviate any doubts about its continued application.
Overview
The Mutual Assistance in Criminal Matters (United Kingdom) Regulations (Amendment) 1993 No. 111 was enacted to address a gap in the existing framework that prevented Australia from seeking'search and seizure' assistance from the United Kingdom in non-drug related matters. This amendment was necessary due to a significant investigation into alleged breaches of Australian federal law which had progressed to the point where such assistance was required. The problem arose from the fact that the original Mutual Assistance in Criminal Matters (United Kingdom) Regulations 1990 limited the scope of the Mutual Assistance in Criminal Matters Act 1987 to drug trafficking and related matters under a bilateral treaty. These Regulations were made under the authority of the Attorney-General and pursuant to section 44 of the Act, which allows for regulations to carry out or give effect to the Act, and section 7, which allows the Act to apply to specified foreign countries subject to treaty limitations or other conditions. The policy objective of the amendment was to enable the Act to apply to the UK in non-drug matters while maintaining the existing treaty relationship for drug-related issues.
Scope and Application
The Mutual Assistance in Criminal Matters (United Kingdom) Regulations (Amendment) 1993 No. 111 amends the existing regulations to expand the scope of application of the Mutual Assistance in Criminal Matters Act 1987 (the Act) to the United Kingdom. Previously, the Act applied to the UK only in matters concerning drug trafficking and the confiscation of the proceeds of drug trafficking, as per the Treaty between the Australian and UK Governments concerning the Investigation of Drug Trafficking and the Confiscation of the Proceeds of Drug Trafficking. This amendment broadens the application to include non-drug related criminal matters, specifically enabling requests for 'search and seizure' assistance in non-drug related investigations. The amendment preserves the existing treaty relationship for drug-related matters while extending the application of the Act to cover other criminal matters. The Regulations achieve this by amending the interpretation regulation and substituting the regulation that applies the Act to the UK, ensuring that Part III of the Act, along with necessary Parts I and VIII, applies to the UK in non-drug related matters.
Key Provisions
The Mutual Assistance in Criminal Matters (United Kingdom) Regulations (Amendment) 1993 No. 111 primarily amend the existing principal Regulations to broaden the scope of the Mutual Assistance in Criminal Matters Act 1987 (the Act) as it applies to the United Kingdom (UK). Regulation 1 amends the principal Regulations, while Regulation 2 modifies the interpretation of regulation 3 in the principal Regulations to include a reference to the Treaty between Australia and the UK concerning the Investigation of Drug Trafficking and the Confiscation of the Proceeds of Drug Trafficking. Regulation 3 is the most significant, as it replaces regulation 4 in the principal Regulations. The new regulation 4 applies the Act to the UK subject to the Treaty in matters within the scope of the Treaty, which includes drug trafficking and related matters. Additionally, it extends the application of Part III of the Act to the UK in other matters, which includes non-drug related criminal matters, while also applying Parts I and VIII of the Act, which are necessary for the effective operation of Part III. Regulation 3 also ensures that Part II of the Act continues to apply in any event.
These Regulations impose obligations on the Australian and UK authorities to cooperate in criminal matters as outlined in the Act and the Treaty. For instance, they require the Australian authorities to follow the prescribed procedures when making requests for mutual assistance and the UK authorities to respond to such requests within the stipulated timeframes. The Regulations also impose obligations on the parties to ensure the confidentiality of the information exchanged and to use it solely for the purposes for which it was requested. Furthermore, the Regulations impose obligations on both parties to respect each other's laws and judicial processes and to provide information and assistance in a manner that is consistent with their respective legal systems.
Failure to comply with the obligations imposed by these Regulations may result in civil or criminal consequences. For example, if an authority fails to respond to a request for mutual assistance within the stipulated timeframe, it may be held liable for damages in a civil action. Similarly, if an authority uses information exchanged under the Regulations for purposes other than those for which it was requested, it may be held liable for criminal penalties, including fines and imprisonment. The maximum penalties for such offences are not specified in the Regulations but are likely to be determined by the relevant domestic laws of Australia and the UK. It is important to note that the Regulations do not create new offences but rather provide a framework for the mutual assistance relationship between Australia and the UK in criminal matters.
These Regulations provide a mechanism for Australia and the UK to cooperate in criminal matters beyond drug trafficking and related matters. By extending the application of Part III of the Act to the UK in non-drug related criminal matters, the Regulations enable the two countries to work together to combat a wider range of criminal activities. This is particularly important in an era of globalisation where criminal activities often transcend national borders and require international cooperation to effectively investigate and prosecute. The Regulations also provide a framework for the exchange of information and assistance between the two countries, which is essential for the successful investigation and prosecution of criminal matters. Overall, these Regulations are an important tool for enhancing mutual assistance in criminal matters between Australia and the UK.