Commonwealth Numbered Regulations - Explanatory Statements

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MUTUAL ASSISTANCE IN CRIMINAL MATTERS (UNITED KINGDOM) REGULATIONS 1999 1999 NO. 310

STATUTORY RULES 1999 No. 310

Issued by the Authority of the Minister for Justice and Customs

Mutual Assistance in Criminal Matters Act 1987

Mutual Assistance in Criminal Matters (United Kingdom) Regulations 1999

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. 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.

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 location, restraint and forfeiture of proceeds of crime.

The Regulations will give effect in Australian domestic law to the Agreement between the Government of Australia and the Government of the United Kingdom of Great Britain and Northern Ireland concerning the Investigation, Restraint and Confiscation of the Proceeds and Instruments of Crime, signed at Canberra on 6 February 1997 ("the Agreement"). The Agreement, once in force, will bind Australia and the United Kingdom in international law to provide each other with the kinds of assistance listed above, and in addition to provide information and documents and other similar lawful assistance, for the purpose of identifying, restraining and confiscating the proceeds or instruments of crime.

In accordance with the Government's policy of greater parliamentary involvement in Australia's treatymaking processes, the Agreement was tabled in Parliament, together with a National Interest Analysis (NIA), on 13 May 1997. The period of fifteen sitting days following tabling elapsed on 27 June 1997. In its Eighth Report (June 1997) the Joint Standing Committee on Treaties supported implementation of the Agreement.

By a diplomatic note dated 2 November 1999 the United Kingdom notified Australia, in accordance with Article 16 of the Agreement, that its domestic requirements for the Agreement's entry into force had been completed. Australia's requirement for the Agreement's entry into force is the making of the Regulations. The Agreement enters into force 30 days after the date on which the Parties have notified each other that they have completed their respective requirements for the entry into force of the Agreement. The United Kingdom will be notified on 10 April 2000 (following expiry of the 15 sitting day disallowance period) that Australia's requirements for the Agreement's entry into force have been completed. Thirty days after that date, that is on 10 May 2000, the Agreement will enter into force. Accordingly, 10 May 2000 is also the commencement date of the Regulations.

As in all of Australia's mutual assistance in criminal matters treaties, the obligation to provide assistance is qualified by certain internationally accepted safeguards. For, example, assistance may be refused if the granting of a request would seriously impair the sovereignty, security, national interest or other essential interests of the requested Party, if provision of the assistance could prejudice an investigation in the requested Party or the safety of a person, on grounds of excessive cost to the requested Party or because confiscation is not available in the requested Party in relation to the offence in question.

Details of the Regulations are as follows:

Regulation 1 specifies the name of the Regulations.

Regulation 2 provides for the Regulations to commence on 10 May 2000, which is the date on which it is planned the Agreement will enter into force.

Regulation 3 provides that the Mutual Assistance in Criminal Matters Act 1987 applies to the United Kingdom subject to the Agreement.

Regulation 4 repeals the previous Mutual Assistance in Criminal Matters (United Kingdom) Regulations, which implement the Treaty between the Government of Australia and the Government of the United Kingdom of Great Britain and Northern Ireland concerning the Investigation of Drug Trafficking and Confiscation of the Proceeds of Drug Trafficking, done at Canberra on 3 August 1988 ("the 1988 Treaty"). The 1988 Treaty is superseded by the Agreement.

The Schedule to the Regulations contains the text of the Agreement.