MUTUAL ASSISTANCE IN CRIMINAL MATTERS (UNITED STATES OF AMERICA) REGULATIONS (AMENDMENT) 1994 NO. 442

MUTUAL ASSISTANCE IN CRIMINAL MATTERS (UNITED STATES OF AMERICA) REGULATIONS (AMENDMENT) 1994 NO. 442

Statutory Rules 1994 No. 442

Issued by the Authority of the Attorney-General

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 Govern or-Genera 1 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(2) of the Act provides that regulations may apply the Act to a specified foreign country subject to such limitations, conditions, exceptions, or qualifications as may be set out in the regulations. This allows for regulations to be made applying the Act to a specified foreign country by way of a bilateral mutual assistance in criminal matters treaty or on a nontreaty basis.

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, 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 by regulations to the country concerned. The regulations may give effect to a treaty or otherwise.

Prior to the commencement of the Mutual Assistance in Criminal Matters (United States of America) Regulations (Amendment) (the amending Regulations), the Act had been applied in a limited way to the United States of America by the Mutual Assistance in Criminal Matters (United States of America) Regulations (the Principal Regulations). Effectively only Parts I, II, IV, VII and VIII of the Act were applied to the United States of America. The earlier Regulations allowed arrangements to be made enabling persons to travel between Australia and the United States of America to give evidence or assist investigations. Those Regulations were made to facilitate the transfer of a person from the United States to Australia, in custody. to give evidence here.

Australia and the United States of America are close to agreement on the text of a 9 mutual assistance in criminal matters treaty. However, it is expected that the treaty will not be in force for some time. Pending the bringing into force of the treaty it is proposed that the Act apply to the United States of America because the United States has laws enabling it to provide mutual assistance in response to Australian requests and hence can provide substantial reciprocity to Australia.

The whole Act has now been applied to the United States of America, with the exception of Part VIA, pending the entry into force of the treaty with the United States of America, so as to enable Australia and the United States to co-operate in mutual assistance in criminal matters to a greater extent than was the case. The amending Regulations effectively apply Parts III, V, and VI to the United States, in addition to those pails that had previously been applied. This will increase the assistance that may be sought from, or provided to, the United States of America to include search and seizure, the holding in custody of prisoner witnesses in transit to third countries, and allowing for the restraint, forfeiture and confiscation of proceeds of crime. At this stage it is not appropriate to apply Part VIA of the Act, which deals with the provision of Financial Transaction Reports information to the United States of America because there is no agreement between Australia and the United States on the exchange of such information.

Details of the amending Regulations are as follows:

Regulation 1 provides that the Principal Regulations are amended as set out in the amending Regulations.

Subregulation 2.1 makes a minor grammatical change in the Principal Regulations consequential on the amendment in Subregulation 2.2 of the amending Regulations.

Subregulation 2.2 omits and substitutes a new Subregulation 3(2) in the Principal Regulations which has the effect of applying the whole Act, other than Part VIA, to United States of America.