Mutual Assistance in Criminal Matters (United Kingdom) Regulations 1995 No. 189
EXPLANATORY STATEMENT
Statutory Rules 1995 No. 189
Issued by the Authority of the Attorney-General
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. Subsection 7(2) of the Act provides that regulations may apply the Act to a foreign country subject to such limitations, conditions, exceptions, or qualifications referred to in the regulations in accordance with subsection 7(2AA). Subsection 7(2AA) provides that the regulations may be applied to a foreign country as set out in paragraphs 7(2AA)(a), (b) and (c). Paragraph 7(2AA)(a) provides that the regulations may give effect to a bilateral mutual assistance treaty between Australia and that country, being a treaty a copy of which is set out in the regulations. Paragraph 7(2AA)(c) provides that the regulations may give effect to any non-treaty mutual assistance relationship with a foreign country that is set out or identified 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, holding in custody of prisoner witnesses in transit to third countries, service of documents and the restraint, forfeiture and confiscation of proceeds of crime. For Australia to grant or request assistance under the Act, with the exception of the taking of evidence, the Act must apply by regulations to the country concerned.
Under the regulations repealed by the 1995 regulations, the Act had been applied in a limited way to the United Kingdom by the Mutual Assistance in Criminal Matters (United Kingdom) Regulations (Statutory Rules Nos. 254 of 1990 and 111 of 1993).
The 1990 regulations gave domestic effect to the mutual assistance in criminal matters treaty between Australia and the United Kingdom signed on 3 August 1988. The Treaty, which entered into force on 12 September 1990, binds the two countries under international law to assist each other in the investigation and prosecution of drug- related matters.
Statutory Rules No. 111 of 1993 applied Parts I, II, III, and VIII of the Act to the United Kingdom in relation to non-drug matters. The Regulations were made to allow requests to be made to the United Kingdom for 'search and seizure' assistance.
The 1995 regulations extends the application of the Act to the United Kingdom in non-drug matters pursuant to an understanding reached at officials' level between Australia and the United Kingdom. This will increase the assistance that may be sought from, or provided to, the United Kingdom in relation to non-drug matters to enable persons, including prisoners, to give evidence or assist investigations in the other country, holding in custody of prisoner witnesses in transit to third countries, service of documents and the restraint, forfeiture and confiscation of proceeds of crime. The 1995 regulations continue to give effect to the drugs-limited treaty. For reasons of drafting clarity the 1990 and 1993 regulations were repealed.
At this stage it is not appropriate to apply Part VIA of the Act, which deals with the provision of Financial Transaction Reports information to the United Kingdom because there is no agreement between Australia and the United Kingdom for the exchange of such information.
The 1995 Regulations commenced on Gazettal. Details of the 1995 Regulations are as follows:
Regulation 1 is a citation provision.
Regulation 2 is an interpretative provision, which amongst other things, provides that a copy of the drugs-limited mutual assistance treaty is set out in the Schedule to the 1995 regulations.
Subregulation 3(1) applies the Act to United Kingdom subject to the Treaty so far as drug-related matters are concerned. Subregulation 3(2) provides that the Act, other than Part VIA, applies to the United Kingdom for all other matters not covered by the Treaty.
Regulation 4 repealed the earlier Statutory Rules which applied the Act to the United Kingdom.
Overview
The Mutual Assistance in Criminal Matters (United Kingdom) Regulations 1995, enacted under the Mutual Assistance in Criminal Matters Act 1987, were introduced to facilitate a broader scope of international cooperation in criminal matters between Australia and the United Kingdom. The Act was passed by the Australian Parliament and aims to provide a legal framework for the mutual assistance in criminal investigations and proceedings between Australia and other countries, including the United Kingdom. The 1995 Regulations expand the application of the Act to the United Kingdom for non-drug related matters, allowing for a wider range of mutual assistance, such as evidence taking, search and seizure, witness assistance, prisoner custody, document service, and asset restraint or confiscation. This legislative measure was designed to enhance cooperation and streamline the process of seeking and providing assistance in criminal matters, ensuring that the Act's provisions are effectively implemented in dealings with the United Kingdom.
Scope and Application
The Mutual Assistance in Criminal Matters (United Kingdom) Regulations 1995 (C2004L05423) extends the application of the Mutual Assistance in Criminal Matters Act 1987 to the United Kingdom for purposes beyond the drug-related matters covered by a specific treaty, thus enhancing the scope of mutual legal assistance between the two nations. The regulations apply the Act to the United Kingdom, enabling requests for various forms of assistance such as taking of evidence, search and seizure, witness assistance, holding prisoner witnesses in custody during transit to third countries, service of documents, and the restraint, forfeiture, and confiscation of proceeds of crime, except for non-drug related matters which are subject to the broader treaty terms. The application of the Act is governed by the provisions of the 1995 regulations, which repeal earlier rules from 1990 and 1993, and is contingent upon the existence of either a bilateral treaty or a non-treaty mutual assistance relationship as outlined in the regulations. Notably, the Act does not currently extend to the exchange of Financial Transaction Reports information due to the absence of a relevant agreement between Australia and the United Kingdom. The regulations clarify and consolidate the application of the Act to the United Kingdom, ensuring that the necessary legal framework is in place to facilitate comprehensive mutual assistance in criminal matters.
Key Provisions
The Mutual Assistance in Criminal Matters (United Kingdom) Regulations 1995 (No. 189) are instrumental in applying the Mutual Assistance in Criminal Matters Act 1987 (the Act) to the United Kingdom. These regulations, pursuant to section 44 of the Act, prescribe the matters necessary to facilitate international cooperation in criminal matters between Australia and the United Kingdom. Specifically, Regulation 3(1) applies the Act to the United Kingdom concerning drug-related matters, as stipulated by a bilateral treaty (section 3(1)), while Regulation 3(2) extends the application of the Act to all other matters not covered by the Treaty (section 3(2)). This extension allows for broader cooperation beyond drug-related issues, encompassing areas such as search and seizure, witness arrangements, prisoner custody, service of documents, and the restraint, forfeiture, and confiscation of criminal proceeds.
The obligations imposed by these regulations on parties or entities include adherence to the stipulations outlined in the Act and the bilateral treaty. This involves ensuring that requests for assistance are made in accordance with the legal frameworks established by the Act and the Treaty. Furthermore, entities such as law enforcement agencies and judicial authorities must facilitate the execution of these requests, ensuring that they are processed efficiently and within the legal boundaries set by the regulations. The regulations also require the maintenance of records and the provision of necessary documentation to support the mutual assistance process.
Failure to comply with the obligations set out in these regulations can result in serious legal consequences. While the explanatory statement does not explicitly list offences or penalties, breaches of the Act or the Treaty could potentially lead to legal actions under the domestic law of either country, including criminal charges for non-compliance with mutual assistance requests or mishandling of evidence. The penalties for such breaches would depend on the specific nature of the offence and the jurisdiction in which it is prosecuted. However, the seriousness of the potential consequences underscores the importance of strict adherence to the regulations by all parties involved.