EXPLANATORY STATEMENT

 

 

Select Legislative Instrument 2005 No. 281

 

Issued by the Authority of the Minister for Justice and Customs

 

Mutual Assistance in Criminal Matters Act 1987

 

Mutual Assistance in Criminal Matters (Convention against Corruption) Regulations 2005

 

The Mutual Assistance in Criminal Matters Act 1987 (the Act) allows for international assistance in criminal matters to be provided and obtained by Australia. 

 

Section 44 of the Act provides, in part, that the Governor-General may make regulations, not inconsistent with the Act, 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.

 

The purpose of the Mutual Assistance in Criminal Matters (Convention against Corruption) Regulations 2005 (the Regulations) is to facilitate Australia’s ability to make and receive mutual assistance requests to and from States Parties to the United Nations Convention against Corruption (the Convention) in respect of the offences covered by the Convention.

 

Schedule 1 to the Regulations sets out the text of the Convention, and article 46 of the Convention sets out the obligations for mutual assistance in criminal matters applying to States Parties to the Convention.

 

While the Act allows Australia to make requests to and receive requests from all countries, mutual assistance requests are facilitated by treaty arrangements.

 

Section 7 of the Act provides that the Act applies to all foreign countries (subsection 7(1)), but that the regulations may provide that the Act applies to a foreign country subject to any multilateral mutual assistance treaty (paragraph 7(2)(b)).  Paragraph 7(3)(b) provides that if the regulations provide that the Act applies to a foreign country subject to a treaty and this treaty relates in part to the provision of assistance in criminal matters, then the Act applies subject to the limitations, conditions, exceptions or qualifications that are necessary to give effect, in relation to that country, to that part of the treaty that relates to the provision of assistance in criminal matters.

 

The Regulations apply the Act to a foreign country that is a State Party to the Convention, subject to the Convention.  The effect of the Regulations is to facilitate Australia’s ability to make and receive requests to and from a State Party to the Convention for mutual assistance with an offence specified in the Convention.

 

Details of the Regulations are set out in the Attachment.

 

The Regulations commence on the day after they were registered on the Federal Register of Legislative Instruments.  The Convention enters into force for Australia on the same day. 

 

The Act specifies no conditions which need to be met before the power to make the Regulations may be exercised.

 

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

The Australian Government consulted with the States and Territories on the ratification of the Convention through the Standing Committee on Treaties, relevant ministerial committees, and a series of dedicated information sessions.  The Joint Standing Committee on Treaties conducted a hearing into the ratification of the Convention on 7 March 2005.

 

This legislative instrument is of a minor or machinery nature and does not substantially alter existing arrangements.  It has no direct, or substantial indirect effect on business. 

 

 

ATTACHMENT

 

Details of the proposed Mutual Assistance in Criminal Matters (Convention against Corruption) Regulations 2005

 

Regulation 1 – Name of Regulations

 

This regulation provides that the title of the Regulations is the Mutual Assistance in Criminal Matters (Convention against Corruption) Regulations 2005.

 

Regulation 2 - Commencement

 

This regulation provides for the Regulations to commence on the day after they are registered on the Federal Register of Legislative Instruments.

 

Regulation 3 - Definitions

 

This regulation provides that the term ‘Act’ is defined to mean the Mutual Assistance in Criminal Matters Act 1987 and that the term ‘Convention’ is defined to mean the United Nations Convention against Corruption.

 

Regulation 4 – Application of Act

 

This regulation provides that the Act applies to a foreign country that is a State Party to the Convention, subject to the Convention.

 

This item also inserts a note to explain how foreign countries become a State Party to the Convention, as well as details of how to obtain a current list of States Parties to the Convention.

 

Schedule 1 – United Nations Convention against Corruption

 

Schedule 1 sets out the English text of the Convention.