Commonwealth Numbered Regulations - Explanatory Statements

[Index] [Search] [Download] [Related Items] [Help]

MUTUAL ASSISTANCE IN CRIMINAL MATTERS (HONG KONG) REGULATIONS (REPEAL)1997 NO. 124

STATUTORY RULES 1997 No. 124

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

Mutual Assistance in Criminal Matters Act 1987

Mutual Assistance in Criminal Matters (Hong Kong) Regulations (Repeal)

Section 44 of the Mutual Assistance in Criminal Matters Act 1987 ("the Act") provides that the Governor-General may make regulations 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. Subsection 7 (1) provides that, subject to section 7, the Act applies to all foreign countries. Paragraph 7 (2) (a) of the Act provides 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. In accordance with subsection 3 (3) of the Act, a colony, territory or protectorate of a foreign country may be treated as if it were a separate foreign country for the purpose of applying the Act to it.

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 give effect in Australian domestic law to the termination of the Agreement between the Government of Australia and the Government of Hong Kong concerning the Investigation of Drug Trafficking and the Confiscation of the Proceeds of Drug Trafficking, signed at Hong Kong on 22 April 1991 ("the former Agreement"), which ceased to be in force after 3 June 1997. The former Agreement bound the Governments of Australia and Hong Kong in international law to provide each other with assistance in investigations and proceedings in respect of drug trafficking, including the tracing, restraining and confiscation of the proceeds of drug trafficking. It was given effect in Australian domestic law by the Mutual Assistance in Criminal Matters (Hong Kong) Regulations (Statutory Rules 1991 No. 95), which is repealed by the Regulations.

Article 13 of the former Agreement provided that it was to remain in force for an initial period of 3 years and thereafter might be continued in force for further successive periods of one year by agreement between the parties 180 days in advance. The former Agreement was extended in accordance with Article 13 on three occasions and, in accordance with the most recent exchange of Notes on the matter, remained in force until 3 June 1997.

Mutual assistance will continue for the time being on a discretionary basis, without the need for special legislative action, pending entry into force of a new agreement.

Background

A new agreement providing for the full range of mutual assistance in criminal matters, the Agreement between the Government of Australia and the Government of Hong Kong concerning Mutual Legal Assistance in Criminal Matters ("the new Agreement"), was signed in Sydney on 23 September 1996. The new Agreement was negotiated with the approval of the Government of China and was intended to continue in operation after Hong Kong reverts to Chinese sovereignty on 1 July 1997. In the expectation that the new Agreement would enter into force not later than 4 June 1997 it was decided before the 180-day deadline in December 1996 not to extend the life the former Agreement beyond 3 June 1997.

The new Agreement's entry into force is dependent on Hong Kong enacting general mutual assistance in criminal matters legislation so that it can give domestic legal effect to the new Agreement. Because enactment of this legislation has been delayed, it is not possible to bring the new Agreement into force on 4 June 1997. It has been arranged that mutual assistance will be made available by Hong Kong and Australia on a discretionary non-treaty basis pending the entry into force of the new Agreement. Since 1 March 1997, our Mutual Assistance Act has applied to all foreign countries on a discretionary basis in the absence of a treaty, so no legislative measures are required to give effect to this arrangement in Australia. Once Hong Kong's general mutual assistance in criminal matters legislation is in place, it is expected that further regulations (to give effect to the new Agreement) will be submitted to the Executive Council.

Details of the Regulations are as follows:

Regulation 1 provides that the Regulations commence on 4 June 1997, the first day after expiry of the current Agreement.

Regulation 2 repeals the Mutual Assistance in Criminal Matters (Hong Kong) Regulations (Statutory Rules 1991 No. 95).