Commonwealth Numbered Regulations - Explanatory Statements

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MUTUAL ASSISTANCE IN CRIMINAL MATTERS (UNITED KINGDOM) REGULATIONS 1997 NO.2

Statutory Rules 1997 No. 2

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 Kingdom) Regulations

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. Paragraph 7(2)(a) of the Act (as amended by item 3 of Schedule 1 of the Mutual Assistance in Criminal Matters Legislation Amendment Act 1996 (MA Amendment Act)) provides that regulations may apply the Act to a foreign country subject to any mutual assistance treaty between Australia and another country. The effect of section 4 of the Acts Interpretation Act 1901 is that the power expressed in an Act to make regulations may be exercised before the Act comes into operation as if it had come into operation and that any regulations so made take effect from the time when the Act concerned comes into operation.

The regulations are consequential upon the proclamation of Schedule 1 of the MA Amendment Act on 1 March 1997. Separate Executive Council Minutes will be submitted in relation to the proclamation and to other instruments which are also consequential upon the proclamation. Those relate to;

*       Commencement of Schedules 1, 2 and 3 of the MA Amendment Act

*       Mutual Assistance in Criminal Matters Act 1987 Regulations (Repeal)

*       Mutual Assistance in Criminal Matters Regulations (Amendment)

*       Magistrate Arrangements between the Commonwealth and Norfolk Island

The purpose of these regulations is to continue in force the "Drug Trafficking Treaty" with the United Kingdom (UK) (the treaty provides for mutual assistance in investigation of drug trafficking and for confiscation of proceeds of drug trafficking) and to also repeal the current "nontreaty" application of the Act to the UK in all other matters (namely the unilateral application of the Act by regulation to the UK without the existence of a treaty).

The reason for the repeal of the "non-treaty" application of the Act is because the MA Amendment Act repeals the prior requirement for application of the Act by regulation to a foreign country before mutual assistance could be granted or requested (this amendment will enable Australia to more expeditiously request and provide mutual assistance). Upon proclamation of Schedule 1 of the MA Amendment Act the Act will apply to all foreign countries. Australia's existing international obligations under bilateral and multilateral mutual assistance treaties which are already in force are met by "savings" provisions in Schedule 1 of the MA Amendment Act which continue such treaties in force.

Schedule 1 of the MA Amendment Act enables new regulations to be made to give effect to new mutual assistance treaties which are entered into in the future. It is intended that new bilateral mutual assistance treaties will only be entered into with other countries where the domestic legal requirements of the other country for it to be

able to provide mutual assistance to Australia include that there be a treaty in existence with Australia.

The current UK regulations contain both a treaty application of the Act to the UK and a "non-treaty" application of the Act to the UK (UK law requires that the UK have a treaty in place for it to be able to provide mutual assistance in drug trafficking matters but does not require it to have a treaty in place for it to be able to provide mutual assistance in any other areas). It is not considered appropriate to rely on the "savings" provisions in Schedule 1 of the MA Amendment Act in relation to that part of the existing UK regulations which give effect to the "Drug Trafficking Treaty" and to only repeal the application of the Act in relation to other matters. It is considered more appropriate to repeal the whole of the existing UK regulations and to remake the treaty application part of those regulations.

All other existing regulations under the Act applying the Act to a country on a "non-treaty" basis are repealed by the Mutual Assistance in Criminal Matters Act 1987 Regulations (Repeal) (see separate Executive Council Minute).

Details of the Regulations are as follows:

Regulation 1 is a citation provision.

Regulation 2 is a commencement provision.

Regulation 3 is a definition provision.

Regulation 4 applies the Act to the United Kingdom subject to the "Drug Trafficking Treaty" between the Government of Australia and the Government of the United Kingdom and Northern Ireland.

Regulation 5 repeals the earlier UK regulations (Statutory Rules 1995 No. 187).

The Schedule to the proposed Regulations contains the text of the "Drug Trafficking Treaty".