Commonwealth Numbered Regulations - Explanatory Statements

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MUTUAL ASSISTANCE IN CRIMINAL MATTERS (UNITED STATES OF AMERICA) REGULATIONS(AMENDMENT) 1996 NO. 175

Statutory Rules 1996 No. 175

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 States of America) Regulations (Amendment)

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.

Subsection 7(1) of the Act provides that the regulations may provide that the Act applies to a foreign country specified in the regulations.

Subsection 7 (2A) of the Act provides that the regulations may make provision to the effect that the Act applies to a specified foreign country in respect of obtaining access, for the purpose of international assistance in criminal matters, to Financial Transaction Reports (FTR) information. Part VIA of the Act (Section 37A) provides that where a foreign country, being a country to which the Act applies because of regulations made under subsection 7 (2A), asks the Attorney-General to give information to it, the Attorney-General may direct the Director of the Australian Transaction Reports Analysis Centre (AUSTRAC) to give the Attorney-General access to FTR information, for the purposes of enabling the Attorney-General to deal with the request.

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, provision of FTR information, service of documents and the restraint, forfeiture and confiscation of proceeds of crime. For Australia to grant or request assistance under the Act, with the exception of the taking of evidence, the Act must apply to the country concerned under the regulations.

Prior to the commencement of the Mutual Assistance in Criminal Matters (United States of America) Regulations (Amendment) (the amending Regulations), the Act applied in its entirety to the United States of America (USA), with the exception of Part VIA of the Act (see the Mutual Assistance in Criminal Matters (United States of America) Regulations, Statutory Rules 1989, No. 114, as amended by Mutual Assistance in Criminal Matters (United States of America) Regulations (Amendment), Statutory Rules 1994, No. 442). The amending Regulations apply

Part VIA (section 37A) of the Act to the USA so that the Act applies to the USA in its entirety.

The Regulations provide a basis on which AUSTRAC may provide FTR information to its USA counterpart, Financial Crimes Enforcement Network (FinCEN) in accordance with the Memorandum of Understanding Concerning Cooperation in the Exchange of Financial Intelligence signed in January 1996.

Details of the amending Regulations are as follows:

Regulation 1 provides that the Principal Regulations, as amended by Statutory Rules 1994 No. 442, are amended as set out in the proposed Regulations.

Regulation 2 provides for the omission of the existing regulation 3 and the substitution of subregulations 3 (1) and (2). New Subregulation 3 (1) states that the Act applies to the USA (without qualification). The subregulation is made under subsection 7 (1) of the Act.

New subregulation 3 (2) provides that for the purposes of subsection 7 (2A) of the Act, the Act applies to the USA in respect of obtaining access, for the purpose of international assistance in criminal matters, to FTR information. That subregulation was prepared, in addition to subregulation 3 (1), to satisfy section 37A (Part VIA) of the Act (which states, in effect, that the Attorney-General may direct the Director of AUSTRAC to give the Attorney-General access to FTR information requested by a foreign country where that country is a country to which the Act applies because of regulations made under subsection 7 (2A)).