EXPLANATORY STATEMENT

 

Select Legislative Instrument 2010 No. 37

 

Issued by the authority of the Minister for Home Affairs

 

Mutual Assistance in Criminal Matters Act 1987

Mutual Assistance in Criminal Matters (United Arab Emirates) Regulations 2010

 

Section 44 of the Mutual Assistance in Criminal Matters Act 1987 (the Act) provides, in part, that the Governor-General may make regulations, not inconsistent with the Act, prescribing all 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 Regulations give effect in Australian domestic law to the Treaty between Australia and the State of the United Arab Emirates on Mutual Legal Assistance in Criminal Matters, signed at Hobart on 26 July 2007 (the Treaty). Paragraph 7(2)(a) of the Act states that Regulations may provide that the Act applies to a specified foreign country subject to any mutual assistance treaty between that country and Australia that is referred to in the regulations. The Regulations apply the Act to the State of the United Arab Emirates, subject to the Treaty.

Once in force, the Treaty will create an obligation under international law for Australia and the State of the United Arab Emirates to provide each other with mutual legal assistance in criminal matters including search and seizure, service of documents, taking of evidence, arranging for witnesses to give evidence or assist in investigations, and assistance with the location, restraint and forfeiture of instruments and proceeds of crime.

The Treaty provides the framework within which Australia and the State of the United Arab Emirates will provide assistance to each other, including which authorities will make and receive requests, the information which will be required to support a request for assistance, the grounds on which a request for assistance could be refused, how requests for particular types of assistance will be managed, costs and other matters relating to mutual assistance and the operation of the Treaty.

As in all of Australia’s mutual assistance in criminal matters treaties, the Treaty includes internationally accepted safeguards, including that assistance will not be granted where a request relates to a political offence or is made for the purpose of prosecuting or punishing a person on account of his or her race, sex, religion, nationality or political opinions.

The requested country will also have the discretion to refuse a request on the grounds specified in Article 3(2). For example, a request may be refused if it relates to a prosecution or punishment for an offence which does not constitute an offence under the laws of the requested country, or if the request relates to an offence punishable by the death penalty, unless the requested country considers that the assistance should be provided having regard to the interests of international crime cooperation, the special circumstances of the case and the law of the requested country.

Consultation outside the Australian Government was not undertaken for this legislative instrument as it relates to criminal justice and law enforcement matters. The legislative instrument does not have a direct, or substantial indirect, effect on business and does not restrict competition. The Treaty was the subject of a public hearing by the Joint Standing Committee on Treaties, which recommended binding treaty action be taken in Report 91, tabled on 12 March 2008.

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

The Regulations commence on the day the Treaty enters into force for Australia.
In accordance with Article 24 of the Treaty, the Treaty will enter into force on the thirtieth day after the date on which the Parties have exchanged instruments of ratification.

ATTACHMENT

Details of the Mutual Assistance in Criminal Matters (United Arab Emirates) Regulations 2010

Regulation 1 names the Regulations.

Regulation 2 provides that the Regulations commence on the day the Treaty enters into force.

Regulation 3 defines ‘Act’ to mean the Mutual Assistance in Criminal Matters Act 1987 and ‘United Arab Emirates’ to mean the State of the United Arab Emirates.

Regulation 4 provides that the Mutual Assistance in Criminal Matters Act 1987 applies to the United Arab Emirates subject to the Treaty and the Protocol.

Schedule 1 contains the text of the Treaty.