Commonwealth Numbered Regulations - Explanatory Statements

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MUTUAL ASSISTANCE IN CRIMINAL MATTERS (MONEY-LAUNDERING CONVENTION)REGULATIONS 1997 NO. 248

STATUTORY RULES 1997 No. 248

Issued by the Authority of the Attorney-General and Minister for Justice

Mutual Assistance in Criminal Matters Act 1987

Mutual Assistance in Criminal Matters (Money-Laundering Convention) Regulations

Section 44 of the Mutual Assistance in Criminal Matters Act 1987 ("the Act") provides that the GovernorGeneral 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 Paragraph 7 (2) (b) of the Act provides that regulations may provide that the Act applies to a foreign country subject to any multilateral mutual assistance treaty (being a treaty to which that country is a party) that is referred to 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 and the restraint, forfeiture and confiscation of proceeds of crime.

The Regulations will give effect in Australian domestic law to the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime, done at Strasbourg on 8 November 1990 ("the Convention") in so far as it relates to mutual assistance in criminal matters. The Parties to the Convention are bound in international law to adopt laws in relation to money-laundering offences and the confiscation of proceeds from crime and instrumentalities used to commit crime. The measures required include making bank and other financial and commercial records available for purposes of identifying and tracing proceeds from crime. These matters are dealt with by existing Australian statutes, principally the Proceeds of Crime Act 1987. To achieve broad international co-operation in search, seizure and confiscation the Convention requires Parties to give effect to other Parties' confiscation orders and to assist in identifying and tracing property and freezing or seizing property to prevent its disposal. It is to this latter category of obligations that the Regulations relate.

The text of the Convention was tabled in both Houses of Parliament on 5 November 1992 and, in accordance with the Government's policy of greater parliamentary involvement in Australia's treatymaking processes, a National Interest Analysis on the Convention was tabled on 15 October 1996. The period of fifteen sitting days following tabling elapsed on 6 December 1996. In its Fourth Report (November 1996) the Joint Standing Committee on Treaties expressed its support for ratification of the Convention.

Australia's instrument of ratification for the Convention was deposited with. the Secretary General of the Council of Europe on 31 July 1997. In accordance with Article 36, paragraph 4, of the Convention, the Convention will enter into force for Australia on 1 November 1997. Accordingly, 1 November 1997 is also the commencement date of the Regulations.

The Convention provides, in Article 9, that assistance shall be carried out as permitted by and in accordance with the domestic law of the requested Party. Accordingly, requests under the Convention will be subject to the grounds for refusal set out in section 8 of the Act. For example, Australia will not provide assistance under the Convention where a request is made for the purpose of prosecuting or punishing a person on account of his or her race, sex, religion, nationality or political opinions or where a request relates to a political or military law offence. In addition, assistance will, except in special circumstances, be refused where a request relates to the prosecution or punishment of a person charged with an offence in respect of which the death penalty may be imposed and may be refused in any other case where the provision of assistance may result in the death penalty being imposed on a person.

Details of the Regulations are in the Attachment

ATTACHMENT

MUTUAL ASSISTANCE IN CRIMINAL MATTERS (MONEY-LAUNDERING CONVENTION) REGULATIONS

DETAILS OF PROVISIONS

Regulation 1 is a citation provision.

Regulation 2 provides that the Regulations commence on 1 November 1997, which is the date on which the Convention will enter into force for Australia.

Regulation 3 is a definition provision.

Subregulation 4 (1) provides that, where a country is a Party to the Convention, the Mutual Assistance in Criminal Matters Act 1987 applies to the country subject to the Convention. This provision does not affect the application of the Act to such a country under subsection 7 (1) of the Act in relation to matters not within the scope of the Convention. The subregulation further provides that a copy of the Convention is set out in Schedule 1.

Subregulation 4 (2) provides that a copy of Australia's instrument of ratification of the Convention is set out in Schedule 2.

Regulation 5 provides that the Parties to the Convention are specified in Schedule 3 for the purposes of subsection 43A (1) of the Act. Subsection 43A (1) provides that, in a proceeding arising from a request by a foreign country for international assistance in a criminal matter, a document is admissible in evidence if the Attorney-General provides a certificate stating that the document was provided by a specified Party to the Convention in connection with a request for assistance of the type covered by the Convention. This gives effect to Australia's obligation under Article 26 of the Convention to exempt documents transmitted in application of the mutual assistance provisions of the Convention from legalisation formalities. Subsection 43A (2) provides that the regulations may specify the Parties to the Convention for the purposes of subsection 43A (1).

Schedule 1 to the Regulations sets out the text of the Convention.

Schedule 2 to the Regulations sets out Australia's instrument of ratification of the Convention. The instrument includes the reservations subject to which Australia has ratified the Convention, most importantly Australia's requirement that information or evidence provided by it under the mutual assistance in criminal matters provisions of the Convention may not, without the prior consent of the competent Australian authorities, be used or transmitted by the authorities of the requesting Party in investigations or proceedings other than those specified in the request.

Schedule 3 to the Regulations specifies the Parties to the Convention for the purposes of subsection 43A (1) of the Act, as provided by regulation 5.