MUTUAL ASSISTANCE IN CRIMINAL MATTERS ACT 1987 - SECT 3 Interpretation
MUTUAL ASSISTANCE IN CRIMINAL MATTERS ACT 1987 - SECT 3
Interpretation(1) In this Act, unless the contrary intention appears:
"account" has the same meaning as in the Proceeds of Crime Act.
"agent" has the same meaning as in the Proceeds of Crime Act.
"ancillary offence" , in relation to an offence (in this definition called the main offence ), means:
(a) an offence of conspiring to commit the main offence; or
(b) an offence of aiding, abetting, inciting, counselling or procuring, or being in any way knowingly concerned in, the commission of the main offence; or
(c) an offence of receiving or assisting another person in order to enable the person to escape punishment for, or to dispose of the proceeds of, the main offence; or
(d) an offence of attempting to commit the main offence.
"approved form" means a form approved by the Attorney - General in writing for the purposes of the provision in which the expression occurs.
"Australia" , when used in a geographical sense, includes the external Territories.
"Australian forfeiture order" means:
(a) a forfeiture order within the meaning of a proceeds of crime law; or
(aa) a declaration made under section 95 of the Proceeds of Crime Act; or
(ab) a declaration made under subsection 30(8A) of the Proceeds of Crime Act 1987 ; or
(b) an interstate forfeiture order within the meaning of the Proceeds of Crime Act; or
(c) an order or declaration, made under Australian law, that:
(i) orders the forfeiture of property in respect of an offence against Australian law or declares that property has been forfeited in respect of an offence against Australian law; and
(ii) is, in accordance with the regulations, to be taken to be an Australian forfeiture order for the purposes of this Act.
"Australian law" means the laws of the Commonwealth, the States and the Territories.
"Australian literary proceeds order" means:
(a) a literary proceeds order within the meaning of the Proceeds of Crime Act; or
(b) an order, made under Australian law, that:
(i) imposes a pecuniary penalty on a person in respect of an offence against Australian law; and
(ii) is, in accordance with the regulations, to be taken to be an Australian literary proceeds order for the purposes of this Act.
"Australian pecuniary penalty order" means:
(a) a pecuniary penalty order within the meaning of a proceeds of crime law; or
(b) an interstate pecuniary penalty order within the meaning of the Proceeds of Crime Act; or
(c) an order, made under Australian law, that:
(i) imposes a pecuniary penalty on a person in respect of an offence against Australian law; and
(ii) is, in accordance with the regulations, to be taken to be an Australian pecuniary penalty order for the purposes of this Act.
"Australian restraining order" means:
(a) a restraining order within the meaning of a proceeds of crime law (other than a restraining order made by virtue of section 59 of the Proceeds of Crime Act 1987 or section 34K of this Act); or
(b) an interstate restraining order within the meaning of the Proceeds of Crime Act; or
(c) an order, made under Australian law, that:
(i) restrains a particular person, or all persons, from dealing with property; and
(ii) is, in accordance with the regulations, to be taken to be an Australian restraining order for the purposes of this Act.
"authorised officer" has the same meaning as in the Proceeds of Crime Act.
"benefit" has the same meaning as in the Proceeds of Crime Act.
"carrier" has the same meaning as in the Telecommunications (Interception and Access) Act 1979 (other than Part 5 - 4 or 5 - 4A of that Act).
"cartel offence" means an offence by a corporation involving cartel conduct.
"child" has the same meaning as in Part ID of the Crimes Act 1914 .
"committal proceeding" , in relation to a foreign offence, includes:
(a) any proceeding to determine whether a person should be tried for the offence (whether or not a particular person is specified at the commencement of that proceeding as the person in relation to whom the determination is to be made); and
(b) a proceeding that is, in accordance with the regulations, to be taken to be a committal proceeding for the purposes of this Act.
"communication" has the same meaning as in the Telecommunications (Interception and Access) Act 1979 .
"Confiscated Assets Account" means the account established under section 295 of the Proceeds of Crime Act.
"criminal investigation" means an investigation into an offence (whether the offence is believed to have been committed, to be being committed or to be likely to be committed).
(a) a criminal matter relating to revenue (including taxation and customs duties);
(b) a criminal matter relating to foreign exchange control;
(c) a matter relating to the forfeiture or confiscation of property in respect of an offence;
(d) a matter relating to the imposition or recovery of a pecuniary penalty in respect of an offence; and
(e) a matter relating to the restraining of dealings in property, or the freezing of assets, that may be forfeited or confiscated, or that may be needed to satisfy a pecuniary penalty imposed, in respect of an offence;
whether arising under Australian law or a law of a foreign country.
"criminal proceeding" , in relation to an offence, means a trial of a person for the offence or a committal proceeding in respect of the offence.
"eligible Judge" means a Judge of the Federal Circuit and Family Court of Australia (Division 2) in relation to whom a consent under subsection 38ZC(1) and a nomination under subsection 38ZC(2) are in force.
"enforcement agency" has the same meaning as in the Proceeds of Crime Act.
(a) in Subdivision F of Division 2 of Part VI--evidence relating to:
(i) property in relation to which a foreign forfeiture order or foreign restraining order has been or could be made; or
(ii) property of a person in relation to whom a foreign pecuniary penalty order has been or could be made; or
(iv) benefits derived from the commission of a foreign serious offence; or
(b) otherwise--a thing relevant to a proceeding or investigation, including such a thing in electronic form.
"executing officer" , in relation to a warrant, means:
(a) the police officer named in the warrant, by the Magistrate or eligible Judge who issued the warrant, as being responsible for executing the warrant; or
(b) if that police officer does not intend to be present at the execution of the warrant--another police officer whose name has been written in the warrant by the police officer so named; or
(c) another police officer whose name has been written in the warrant by the police officer last named in the warrant.
"federal prisoner" means a person who is being held in custody pending trial for or sentence for, or is under a sentence of imprisonment for, an offence against a law of the Commonwealth or of a Territory, but does not include a person who is at large after having escaped from lawful custody.
"financial institution" has the same meaning as in the Proceeds of Crime Act.
"foreign confiscation proceedings" means proceedings in a foreign country in respect of the making of a foreign forfeiture order or a foreign pecuniary penalty order.
"foreign forfeiture order" means:
(a) an order, made under the law of a foreign country by a court or other judicial authority, for the forfeiture of property in respect of an offence against the law of that country; or
(b) a declaration, direction, notice, decree or other decision (however described), made under the law of a foreign country by a court or other judicial authority, evidencing forfeiture of property under the law of that country.
"foreign law immunity certificate" means a certificate given, or a declaration made, by a foreign country or under a law of a foreign country, certifying or declaring that, under the law of the foreign country, persons generally or a specified person could or could not, either generally or in specified proceedings and either generally or in specified circumstances, be required:
(a) to answer a specified question; or
(b) to produce a specified document.
"foreign offence" means an offence against a law of a foreign country.
(a) a foreign forfeiture order; or
(b) a foreign pecuniary penalty order; or
(c) a foreign restraining order.
"foreign pecuniary penalty order" means an order, made under the law of a foreign country by a court or other judicial authority, imposing a pecuniary penalty in respect of an offence against the law of that country, but does not include an order for the payment of a sum of money by way of compensation, restitution or damages to an injured person.
"foreign prisoner" means a person who is being held in custody pending trial for or sentence for, or is under a sentence of imprisonment for, an offence against a law of a foreign country, but does not include a person who is at large after having escaped from lawful custody.
"foreign restraining order" means an order:
(a) made under the law of a foreign country (whether or not by a court) in respect of an offence against the law of that country; and
(b) which is, or purports to be, made for the purpose of preserving property (whether or not the order also purports to do other things) including an order:
(i) restraining a particular person or persons from dealing with the property; or
(ii) freezing the property; or
(iii) directing the seizure of the property; or
(iv) directing that the property be taken into official custody or control.
"foreign serious offence" means a serious offence against a law of a foreign country.
"forensic evidence" has the same meaning as in Part ID of the Crimes Act 1914 .
"forensic material" has the same meaning as in Part ID of the Crimes Act 1914 .
"forensic procedure" has the same meaning as in Part ID of the Crimes Act 1914 .
(a) a search of a person conducted by quickly running the hands over the person's outer clothes; and
(b) an examination of anything worn or carried by the person that is conveniently and voluntarily removed by the person.
(a) in relation to the Australian Capital Territory--the Chief Minister of the Territory; or
(b) in relation to the Northern Territory--the Administrator of the Territory.
"incapable person" has the same meaning as in Part ID of the Crimes Act 1914 .
"instrument" , in relation to an offence, has the same meaning as in the Proceeds of Crime Act.
"interception warrant information" has the same meaning as in the Telecommunications (Interception and Access) Act 1979 .
"interest" , in relation to property, has the same meaning as in the Proceeds of Crime Act.
"international production order" has the same meaning as in Schedule 1 to the Telecommunications (Interception and Access) Act 1979 .
"investigative proceeding" means a proceeding covered by paragraph (a) or (b) of the definition of proceeding .
"lawfully accessed information" has the same meaning as in the Telecommunications (Interception and Access) Act 1979 .
"lawfully intercepted information" has the same meaning as in the Telecommunications (Interception and Access) Act 1979 .
(a) a Magistrate of a State (other than the Northern Territory) in respect of whom an arrangement under section 39 is in force; or
(aa) a Judge, or an acting Judge, of the Local Court of the Northern Territory in respect of whom an arrangement under section 39 is in force; or
(c) a Magistrate of an external Territory.
"Money-Laundering Convention" means the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime, done at Strasbourg on 8 November 1990.
"money laundering offence" , in relation to the proceeds of a serious offence, means an offence that is committed by a person:
(a) engaging, directly or indirectly, in a transaction that involves money, or other property, that is proceeds of the offence; or
(b) receiving, possessing, concealing, disposing of or bringing into a country money, or other property, that is proceeds of the offence;
when the person knows that, or is reckless of whether or not, the money or other property is proceeds of a serious offence.
"mutual assistance treaty" means a treaty relating in whole or in part to the provision of assistance in criminal matters.
"narcotic substance" has the same meaning as in the Proceeds of Crime Act.
"offence" includes an offence against a law relating to taxation, customs duties or other revenue matters or relating to foreign exchange control.
"offence under the ordinary criminal law of Australia" means an offence against Australian law other than an offence under the military law of Australia.
"officer" , in relation to a financial institution, has the same meaning as in the Proceeds of Crime Act.
"officer assisting" , in relation to a warrant, means:
(a) a person who is a police officer and who is assisting in executing the warrant; or
(b) a person who is not a police officer and who has been authorised by the relevant executing officer to assist in executing the warrant.
"Official Trustee" means the Official Trustee in Bankruptcy.
"ordinary search" means a search of a person or of articles in the possession of a person that may include:
(a) requiring the person to remove his or her overcoat, coat or jacket and any gloves, shoes and headgear; and
(b) an examination of those items.
"parent" has the same meaning as in the Crimes Act 1914 .
"person assisting" has the same meaning as in the Proceeds of Crime Act.
"POCA search warrant" means a search warrant issued under Part 3 - 5 of the Proceeds of Crime Act in relation to a foreign serious offence.
"police officer" means a member or special member of the Australian Federal Police or a member of the police force of a State or Territory.
"political offence" has the same meaning as in the Extradition Act 1988 , but does not include an offence constituted by conduct that, by a mutual assistance treaty (not being a bilateral treaty) in relation to the relevant country or any country, may be the subject of a request for mutual assistance, being an offence declared by regulations for the purposes of this paragraph not to be a political offence in relation to the country or all countries.
(a) a structure, building or vehicle; and
(b) a place (whether enclosed or built upon or not); and
(c) a part of premises (including premises of a kind referred to in paragraph (a) or (b)).
"prison" includes a gaol, lock - up or other place of detention.
"proceeding" , in relation to a criminal matter, includes a proceeding before a judicial officer or a jury for the purpose of:
(a) gathering evidential material that may lead to the laying of a criminal charge; or
(b) assessing evidential material in support of the laying of a criminal charge.
"proceeds" , in relation to an offence, has the same meaning as in the Proceeds of Crime Act.
"proceeds jurisdiction" has the same meaning as in the Proceeds of Crime Act.
" Proceeds of Crime Act" means the Proceeds of Crime Act 2002 .
"proceeds of crime authority" has the same meaning as in the Proceeds of Crime Act.
Note: Under that Act, the proceeds of crime authority is either the Commissioner of the Australian Federal Police or the Director of Public Prosecutions (see the definition of proceeds of crime authority in section 338 of that Act).
"proceeds of crime law" means:
(a) the Proceeds of Crime Act 2002 ; or
(b) the Proceeds of Crime Act 1987 .
"property" has the same meaning as in the Proceeds of Crime Act.
"protected IPO intercept information" means information that:
(a) is protected information (within the meaning of Schedule 1 to the Telecommunications (Interception and Access) Act 1979 ); and
(i) was obtained in accordance with an international production order issued under clause 30 or 60 of that Schedule; or
(ii) relates to such an international production order.
"protected IPO stored communications information" means information that:
(a) is protected information (within the meaning of Schedule 1 to the Telecommunications (Interception and Access) Act 1979 ); and
(i) was obtained in accordance with an international production order issued under clause 39 or 69 of that Schedule; or
(ii) relates to such an international production order.
"protected IPO telecommunications data information" means information that:
(a) is protected information (within the meaning of Schedule 1 to the Telecommunications (Interception and Access) Act 1979 ); and
(i) is telecommunications data obtained in accordance with an international production order; or
(ii) relates to an international production order that required the disclosure of telecommunications data.
"protected SD information" means information that is protected information within the meaning of paragraph 44(1)(a), (aa), (b) or (c) of the Surveillance Devices Act 2004 .
"public authority of a foreign country" means any authority or body constituted by or under a law of a foreign country.
"recently used vehicle" , in relation to a search of a person, means a vehicle that the person has operated or occupied at any time within 24 hours before the search commenced.
"related foreign serious offence" : a foreign serious offence is a related foreign serious offence in relation to another foreign serious offence if the physical elements of the 2 offences are:
(a) substantially the same acts or omissions; or
(b) acts or omissions in a single series.
"relevant investigation" , in relation to a search warrant issued under Division 2 of Part VIIA, means the investigation to which the evidential material authorised to be searched and seized under the warrant relates.
"relevant proceeding" , in relation to a search warrant issued under Division 2 of Part VIIA, means the proceeding to which the evidential material authorised to be searched and seized under the warrant relates.
"responsible enforcement agency head" means the head of the enforcement agency whose authorised officer is responsible for executing a POCA search warrant.
"search warrant" means a warrant issued under section 38C.
"seizable item" means anything that would present a danger to a person or that could be used to assist a person to escape from lawful custody.
"serious offence" means an offence the maximum penalty for which is:
(b) imprisonment for a period exceeding 12 months; or
(c) a fine exceeding 300 penalty units.
Note 1: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
Note 2: Paragraph (c)--see also subsection (1A) of this section.
(a) the Australian Capital Territory; and
(a) in relation to a State other than the Australian Capital Territory or the Northern Territory--a Minister of the Crown of that State; or
(b) in relation to the Australian Capital Territory or the Northern Territory--a Minister of that Territory.
"State prisoner" means a person who is being held in custody pending trial for or sentence for, or under a sentence of imprisonment for, an offence against a law of a State, but does not include a person who is at large after having escaped from lawful custody.
"stored communication" has the same meaning as in the Telecommunications (Interception and Access) Act 1979 .
"stored communications warrant information" has the same meaning as in the Telecommunications (Interception and Access) Act 1979 .
"strip search" means a search of a person or of articles in the possession of a person that may include:
(a) requiring the person to remove all of his or her clothes; and
(b) an examination of the person's body (but not of the person's body cavities) and of those clothes.
(a) proceeds of a foreign serious offence; or
(b) an instrument of a foreign serious offence.
"tape recording" means audio recording, video recording or recording by other electronic means.
"telecommunications data" (except when used in Part IIIB) has the same meaning as in Schedule 1 to the Telecommunications (Interception and Access) Act 1979 .
"telecommunications system" has the same meaning as in the Telecommunications (Interception and Access) Act 1979 .
(a) the Australian Capital Territory; or
"treaty" includes a convention, protocol or agreement.
"trial" , in relation to a foreign offence, includes any proceeding to determine whether a person should be convicted of the offence.
"vehicle" includes any means of transport.
"video link" means a video and sound system that enables persons assembled in a place in a country to see, hear and talk to persons assembled in a place in another country.
(1AA) A reference to an order in the definitions of foreign forfeiture order , foreign pecuniary penalty order and foreign restraining order in subsection (1) includes a reference to a declaration, direction, notice, decree or other decision (however described).
(1A) In determining, for the purpose of a request by a foreign country, the Australian dollar equivalent of a fine (whether expressed as an amount or by way of penalty units) or pecuniary penalty (however described) that may be imposed on a person for an offence to which the request relates, the fine or penalty is to be translated to Australian currency:
(a) in relation to a country for which the Australian Tax Office publishes exchange rates--at the daily exchange rate listed on the Australian Tax Office website that applies on the day on which the request is received; and
(b) in relation to any other country--at the exchange rate that applies at the time when the request is received.
(2) For the purposes of this Act:
(a) a colony, territory or protectorate of a foreign country;
(b) a territory for the international relations of which a foreign country is responsible; and
(c) a ship or aircraft of, or registered in, a foreign country;
shall, unless the contrary intention appears, be deemed to be part of that foreign country.
(3) Subsection (2) does not apply to a colony, territory or protectorate that is itself a foreign country to which this Act applies.
(4) A reference in this Act to a law of a foreign country includes a reference to a law of a part of, or a law in force in a part of, the foreign country.
(5) A reference in this Act to an Australian criminal offence is a reference to an offence against a law of the Commonwealth or of a Territory.
(6) Without prejudice to its effect by virtue of subsection
(5), this Act has effect as if a reference in this Act to an Australian
criminal offence included a reference to an offence against a law of a State.