Commonwealth Numbered Regulations - Explanatory Statements

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MUTUAL ASSISTANCE IN CRIMINAL MATTERS (REPUBLIC OF HUNGARY) REGULATIONS 1997NO. 59

Statutory Rules 1997 No. 59

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

Mutual Assistance in Criminal Matters Act 1987

Mutual Assistance in Criminal Matters (Republic of Hungary) Regulations

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 restraint, forfeiture and confiscation of proceeds of crime.

The Mutual Assistance in Criminal Matters (Republic of Hungary) Regulations ("the Regulations") give effect in Australian domestic law to the Treaty between Australia and the Republic of Hungary oil Mutual Assistance in Criminal Matters, signed at Budapest on 25 October 1995 ("the Treaty"). The Treaty, once in force, will bind the two countries in international law to provide each other with the kinds of assistance listed above, and in addition to provide documents and other records, locate and identify persons, serve documents and provide other similar assistance not inconsistent with the law of the requested state.

In accordance with the Government's policy of greater parliamentary involvement in Australia's treaty-making processes, the Treaty was tabled in Parliament, together with a National Interest Analysis (NIA), on 21 May 1996.

On 2 December 1996 the Republic of Hungary notified Australia, in accordance with Article 22 of the Treaty, that its domestic constitutional requirements for the Treaty's entry into force had been complied with. Australia's requirement for the Treaty's entry into force is the making of the Regulations. The Treaty enters into force 30 days after the date on which the Contracting States have notified each other that they have complied with their respective requirements for the entry into force of the Treaty. The Republic of Hungary will be notified oil 26 March 1997 that Australia's requirements for the Treaty's entry into force have been complied with. Thirty days after that date, that is on 25 April 1997, the Treaty will enter into force. Accordingly, 25 April 1997 is also the commencement date of the Regulations.

As with all of Australia's mutual assistance in criminal matters treaties, the Treaty contains a range of human rights safeguards similar to those which are internationally accepted as applicable to extradition. Under the Treaty, assistance will not be provided 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 may be refused where a request relates to an offence in respect of which the death penalty may be imposed or executed.

Details of the Regulations are as follows:

Regulation 1 is a citation provision.

Regulation 2 provides for the Regulations to commence on 25 April 1997, which is the date on which it is planned the Treaty will come into force.

Regulation 3 is an definition provision.

Regulation 4 provides that the Mutual Assistance in Criminal Matters Act 1987 applies to the Republic of Hungary subject to the Treaty between Australia and the Republic of Hungary on Mutual Assistance in Criminal Matters.

The Schedule to the proposed Regulations contains the text of the Treaty between Australia and the Republic of Hungary on Mutual Assistance in Criminal Matters, done at Budapest on 25 October 1995.