Mutual Assistance in Criminal Matters (United States of America) Regulations
(Amendment) 1996 No. 175
EXPLANATORY STATEMENT
Statutory Rules 1996 No. 175
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 States of America) 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.
Subsection 7(1) of the Act provides that the regulations may provide that the Act applies to a foreign country specified in the regulations.
Subsection 7 (2A) of the Act provides that the regulations may make provision to the effect that the Act applies to a specified foreign country in respect of obtaining access, for the purpose of international assistance in criminal matters, to Financial Transaction Reports (FTR) information. Part VIA of the Act (Section 37A) provides that where a foreign country, being a country to which the Act applies because of regulations made under subsection 7 (2A), asks the Attorney-General to give information to it, the Attorney-General may direct the Director of the Australian Transaction Reports Analysis Centre (AUSTRAC) to give the Attorney-General access to FTR information, for the purposes of enabling the Attorney-General to deal with the request.
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, provision of FTR information, 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 to the country concerned under the regulations.
Prior to the commencement of the Mutual Assistance in Criminal Matters (United States of America) Regulations (Amendment) (the amending Regulations), the Act applied in its entirety to the United States of America (USA), with the exception of Part VIA of the Act (see the Mutual Assistance in Criminal Matters (United States of America) Regulations, Statutory Rules 1989, No. 114, as amended by Mutual Assistance in Criminal Matters (United States of America) Regulations (Amendment), Statutory Rules 1994, No. 442). The amending Regulations apply
Part VIA (section 37A) of the Act to the USA so that the Act applies to the USA in its entirety.
The Regulations provide a basis on which AUSTRAC may provide FTR information to its USA counterpart, Financial Crimes Enforcement Network (FinCEN) in accordance with the Memorandum of Understanding Concerning Cooperation in the Exchange of Financial Intelligence signed in January 1996.
Details of the amending Regulations are as follows:
Regulation 1 provides that the Principal Regulations, as amended by Statutory Rules 1994 No. 442, are amended as set out in the proposed Regulations.
Regulation 2 provides for the omission of the existing regulation 3 and the substitution of subregulations 3 (1) and (2). New Subregulation 3 (1) states that the Act applies to the USA (without qualification). The subregulation is made under subsection 7 (1) of the Act.
New subregulation 3 (2) provides that for the purposes of subsection 7 (2A) of the Act, the Act applies to the USA in respect of obtaining access, for the purpose of international assistance in criminal matters, to FTR information. That subregulation was prepared, in addition to subregulation 3 (1), to satisfy section 37A (Part VIA) of the Act (which states, in effect, that the Attorney-General may direct the Director of AUSTRAC to give the Attorney-General access to FTR information requested by a foreign country where that country is a country to which the Act applies because of regulations made under subsection 7 (2A)).
Overview
The Mutual Assistance in Criminal Matters (United States of America) Regulations (Amendment) 1996 No. 175 were enacted to address the gap in the Mutual Assistance in Criminal Matters Act 1987 (the Act), which previously did not apply Part VIA of the Act to the United States of America (USA) in its entirety. This legislation, issued by the authority of the Attorney-General and Minister for Justice, amends the existing regulations to ensure that the Act applies to the USA comprehensively, including in respect of obtaining access to Financial Transaction Reports (FTR) information for international assistance in criminal matters. The primary policy objective is to facilitate the exchange of financial intelligence between AUSTRAC and the USA's Financial Crimes Enforcement Network (FinCEN), in accordance with the Memorandum of Understanding Concerning Cooperation in the Exchange of Financial Intelligence signed in January 1996.
Scope and Application
The Mutual Assistance in Criminal Matters (United States of America) Regulations (Amendment) 1996 are an amendment to existing regulations made under the Mutual Assistance in Criminal Matters Act 1987. They extend the application of the Act to the United States of America, ensuring that the Act now applies in its entirety to the USA. This includes the ability to request and provide various forms of international mutual assistance in criminal matters, such as the provision of Financial Transaction Reports (FTR) information, as directed by the Attorney-General through the Director of the Australian Transaction Reports Analysis Centre (AUSTRAC). The amendment allows for AUSTRAC to provide FTR information to its USA counterpart, the Financial Crimes Enforcement Network (FinCEN), facilitating enhanced cooperation in the exchange of financial intelligence as per the Memorandum of Understanding signed in January 1996. These regulations were made under the authority of the Attorney-General and Minister for Justice, ensuring they comply with the provisions set out in the Mutual Assistance in Criminal Matters Act 1987.
Key Provisions
The Mutual Assistance in Criminal Matters (United States of America) Regulations (Amendment) 1996 No. 175 primarily amend the existing regulations to ensure the Mutual Assistance in Criminal Matters Act 1987 (the Act) applies in its entirety to the United States of America (USA). Specifically, section 37A (Part VIA) of the Act, which allows for the Attorney-General to direct the Director of the Australian Transaction Reports Analysis Centre (AUSTRAC) to provide Financial Transaction Reports (FTR) information to a foreign country, is now applicable to the USA (Regulation 2). This amendment allows AUSTRAC to provide FTR information to the Financial Crimes Enforcement Network (FinCEN) in accordance with the Memorandum of Understanding Concerning Cooperation in the Exchange of Financial Intelligence, signed in January 1996.
These Regulations impose obligations on the Attorney-General and AUSTRAC. The Attorney-General now has the authority to direct AUSTRAC to provide FTR information to the USA in response to a request from the USA, in line with the Act (Part VIA). AUSTRAC must comply with any such direction from the Attorney-General, facilitating the flow of financial intelligence necessary for criminal investigations in the USA. The Act’s application to the USA in its entirety ensures that all forms of mutual assistance, including the provision of FTR information, are legally permissible under Australian law.
Failure to comply with the requirements of the Act or the Regulations may result in civil or criminal consequences. Although specific penalties are not outlined in the amending Regulations, breaches of the Act could lead to legal action under the general provisions of Australian law. This may include fines or imprisonment, depending on the nature and severity of the breach. Furthermore, non-compliance could potentially harm diplomatic relations between Australia and the USA, given the importance of mutual legal assistance in criminal matters.
The Regulations also establish a legal framework for AUSTRAC to share FTR information with FinCEN. This is crucial for both countries in combating financial crimes and ensuring that criminal activities do not go unpunished. The streamlined process for sharing FTR information strengthens the bilateral cooperation in criminal matters, facilitating more effective law enforcement on both sides of the Pacific.