Commonwealth Numbered Regulations - Explanatory Statements

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MUTUAL ASSISTANCE (TRANSNATIONAL ORGANISED CRIME) REGULATIONS 2004 2004 NO. 90

EXPLANATORY STATEMENT

Statutory Rules 2004 No. 90

Issued by the authority of the Minister for Justice and Customs

Mutual Assistance in Criminal Matters Act 1987

Mutual Assistance (Transnational Organised Crime) Regulations 2004

Section 44 of the Mutual Assistance in Criminal Matters Act 1987 (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.

Australia is advancing to ratification of the United Nations Convention Against Transnational Organised Crime (the Convention) and the Protocol against the Smuggling of Migrants by Land, Air and Sea (the Protocol).

The Convention contains obligations for mutual assistance in criminal matters in Article 18. These obligations also apply to Protocol. This is because Article l of the Protocol provides that the Convention's provisions apply mutatis mutandis to the Protocol, that is, that the provisions of the Convention apply to the Protocol with any necessary adjustment. This means that the obligation to extend mutual assistance contained in article 18 of the Convention includes an obligation to extend mutual assistance in connection with the Protocol. All these obligations apply only to other States Parties to the Convention and the Protocol respectively.

The Act allows for international assistance in criminal matters to be provided and obtained by Australia. While the Act allows Australia to make requests to and receive requests from all countries, mutual assistance requests are facilitated by treaty arrangements. In order to meet the mutual assistance obligations in the Convention and the Protocol, the Regulations apply the Act to States Parties to the Convention only and to States Parties to both the Convention and the Protocol.

Section 7 of the Act provides that the Act applies to all foreign countries (subsection 7(1)), but that the regulations may provide that the Act applies to a foreign country subject to any multilateral mutual assistance treaty (being a treaty to which that country is a party) that is referred to in the regulations (paragraph 7(2)(b)). Paragraph 7(3)(b) provides that if the regulations provide that the Act applies to a foreign country subject to a treaty which 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 Regulations apply the Act to a foreign country that is a current State Party to the Convention, subject to the Convention. The Regulations also apply the Act to a foreign country that is a State Party to the Convention and the Protocol, subject to the Convention and the Protocol. The text of the Convention and the Protocol are included in Schedules 1 and 2 respectively to the Regulations.

A State Party to the Protocol must also be a State Party to the Convention, which is why the Regulations are drafted to apply the Act to States Parties to the Convention only subject to the Convention, and to States Parties to the Convention and the Protocol subject to both the Convention and the Protocol.

This facilitates Australia to make and receive requests to and from a State Party to the Convention for mutual assistance with an offence in the Convention. It also facilitates Australia to make and receive requests to and from a State Party to the Protocol for mutual assistance with an offence in the Protocol.

The Government expects that the Convention and the Protocol will enter into force for Australia on 26 June 2004. To ensure Australia's compliance with the mutual assistance obligations in the Convention and the Protocol on that date, the Regulations commence on 25 June 2004. The Act specifies no conditions which need to be met before the power to make the proposed Regulations may be exercised.

Details of the Regulations are as follows:

Regulation 1 names the Regulations.

Regulation 2 provides that the Regulations commence on 25 June 2004.

Regulation 3 defines the term 'Act' to mean the Mutual Assistance in Criminal Matters Act 1987, and also defines the terms 'Convention' and 'Smuggling Protocol'.

Schedule 1 sets out the text of the Convention.

Schedule 2 sets out the text of the Protocol.


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