Commonwealth Numbered Regulations - Explanatory Statements
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MUTUAL ASSISTANCE IN CRIMINAL MATTERS (CYBERCRIME) REGULATION 2013 (SLI NO 4 OF 2013)
EXPLANATORY STATEMENT
Select Legislative Instrument 2013 No. 4
Issued by the Authority of the Attorney-General
Mutual Assistance in Criminal Matters Act 1987
Mutual Assistance in Criminal Matters (Cybercrime) Regulation 2013
The Mutual Assistance in Criminal Matters Act 1987 (the Act) allows for international assistance in criminal matters to be provided and obtained by Australia. Section 44 of the Act provides, in part, that the Governor-General may make regulations, not inconsistent with the Act, 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.
Subsection 7(1) of the Act allows Australia to make requests to and receive requests from all foreign countries. Mutual assistance requests can also be facilitated by treaty arrangements. Paragraph 7(2)(b) provides that regulations made under the Act apply the Act to a foreign country subject to any multilateral mutual assistance treaty as referred to in the regulations. Paragraph 7(3)(b) provides that if regulations provide that the Act applies to a foreign country subject to a treaty and that treaty relates in part to the provision of assistance in criminal matters, then the Act applies subject to the limitations, conditions, exceptions or qualifications that are necessary to give effect, in relation to that country, to that part of the treaty that relates to the provision of assistance in criminal matters.
The purpose of the Mutual Assistance in Criminal Matters (Cybercrime) Regulation 2013 (the Regulation) is to facilitate Australia's ability to make and receive mutual assistance requests to and from States Parties to the Council of Europe Convention on Cybercrime (the Convention) in respect of the offences covered by the Convention. The text of the Convention was, in 2013, accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
The obligations for mutual assistance in criminal matters applying to States Parties to the Convention are set out in Articles 27 to 35 of the Convention. The obligations include assisting States Parties with mutual assistance to the widest extent possible for the purpose of investigations or proceedings concerning criminal offences related to computer systems and data, accepting in urgent circumstances requests for mutual assistance by expedited means of communication, expedited preservation and provision of stored computer data and the establishment of a 24/7 network to facilitate speedy assistance among States Parties.
On 20 September 2010, Australia was invited to accede to the Convention which opened for signature in Budapest on 23 November 2001. On 30 November 2012 Australia's instrument of accession was accepted by the Council of Europe and will come into force for Australia on 1 March 2013. The Convention provides a framework for international cooperation in the prevention and investigation of crimes committed via the Internet and other computer networks.
The Regulation applies the Act to any foreign country that is a State Party to the Convention, subject to the Convention. The effect of the Regulations is to facilitate Australia's ability to make and receive requests to and from a State Party to the Convention for mutual assistance in relation to an offence specified in the Convention.
Consultation outside the Australian Government was not undertaken for this legislative instrument as it relates to criminal justice and law enforcement matters. The legislative instrument does not have a direct, or substantial indirect, effect on business and does not restrict competition. Australia's accession to the Convention was the subject of a public hearing by the Joint Standing Committee on Treaties, which recommended binding treaty action be taken in Report 116, tabled on 11 May 2011.
Details of the Regulation are set out in the Attachment.
The Regulation commences on 1 March 2013, being the day on which the Convention enters into force for Australia.
The Act specifies no conditions which need to be met before the power to make the Regulations may be exercised.
The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
ATTACHMENT
Details of the Mutual Assistance in Criminal Matters (Cybercrime) Regulation 2013
Section 1 - Name of Regulation
This section provides that the title of the Regulation is the Mutual Assistance in Criminal Matters (Cybercrime) Regulation 2013.
This section provides for the Regulation to commence on 1 March 2013, being the day on which the Convention enters into force for Australia.
Section 3 - Authority
This section provides that the Regulation is made under the Mutual Assistance in Criminal Matters Act 1987.
Section 4 - Definitions
This section provides that the term 'Act' is defined to mean the Mutual Assistance in Criminal Matters Act 1987 and that the term 'Convention' is defined to mean the Council of Europe Convention on Cybercrime done at Budapest on 23 November 2001.
This section also provides that the text of the Convention could, in 2013, be found online through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
Section 5 - Application of Act
This section provides that the Act applies to a foreign country that is a State Party to the Convention, subject to the Convention.
Note 1 to section 4 provides that Articles 36 and 37 of the Convention sets out how a country becomes a party to the Convention. Note 2 to section 4 provides that, in 2013, a list of the parties to the Convention was on the Council of Europe website (http://hub.coe.int/).
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Mutual Assistance in Criminal Matters (Cybercrime) Regulation 2013
This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
The Mutual Assistance in Criminal Matters Act 1987 (Cth) (the 'MA Act') provides the legislative basis for mutual assistance in Australia. Mutual assistance is the process by which countries provide formal government to government assistance in the investigation and prosecution of criminal offences, and related proceedings. Mutual assistance is a key tool in international crime cooperation and is used where evidence or information relating to a criminal investigation, prosecution or related proceeding is located in a foreign country.
Under the MA Act, Australia is able to receive requests for assistance from any country. Australia is also able to make a request for assistance to any foreign country. However, the MA Act also allows regulations to be made to apply the MA Act to a foreign country, subject to the terms of a bilateral or multilateral treaty.
The Mutual Assistance (Cybercrime) Regulation
2013 (the Regulation) will give effect in Australian domestic law to
Australia's mutual assistance obligations under the Council of Europe Convention
on Cybercrime (the Convention). The Regulation will apply the MA Act to
States Parties to the Convention by ensuring that the MA Act will apply to any
request for assistance received by Australia under the Convention, subject to
the applicable limitations, conditions, exceptions or qualifications that are
necessary to give effect to that part of the Convention that relates to the
provision of assistance in criminal matters.
Human rights implications
This Legislative Instrument does not engage any of the applicable rights or freedoms.
Mutual assistance is a process that allows Australia to cooperate with foreign countries in the investigation and prosecution of criminal offences. Australia's mutual assistance regime contains a number of human rights safeguards that strike an appropriate balance between Australia's need to comply with our international obligations while ensuring that the rights of individuals are protected.
The offences contained in the Convention are of a serious nature and are of international concern. As a State Party to the Convention, Australia has an obligation to facilitate international crime cooperation and provide assistance to other States Parties in the investigation and prosecution of these serious offences.
The Regulation ensures that requests received by Australia under the Convention can be actioned, in compliance with both the MA Act and the relevant terms of the Convention. If the Regulation was not in force, Australia would still be able to make and receive requests for assistance to and from other State Parties.
The Regulation does not alter any of the human rights safeguards that are already contained in the Act.
Conclusion
While Australia's mutual assistance regime engages with some human rights, it does so in a reasonable and proportionate way and does not operate to limit or restrict those rights. As such, the Regulation is compatible with human rights.
Mark Dreyfus
Attorney-General
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