Commonwealth Numbered Regulations - Explanatory Statements

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MUTUAL ASSISTANCE IN CRIMINAL MATTERS ACT 1987 (REGULATIONS) REPEAL 1997 NO.1

Statutory Rules 1997 No. 1

Issued by the Authority of the Attorney-General and Minister for Justice

Mutual Assistance in Criminal Matters Act 1987

Mutual Assistance in Criminal Matters Act 1987 (Regulations) Repeal

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. The effect of section 4 of the Acts Interpretation Act 1901 is that the power expressed in an Act to make regulations may be exercised before the Act comes into operation as if it had come into operation and that any regulations so made take effect from the time when the Act concerned comes into operation.

The proposed regulations are consequential upon the proposed proclamation of the Schedules 1, 2 and 3 of the Mutual Assistance in Criminal Matters Legislation Amendment Act 1996 (MA Amendment Act) on 1 March 1997.

Separate Executive Council Minutes will be submitted in relation to the proclamation and to other instruments which are consequential upon the proclamation. Those relate to;

*       Commencement of Schedules 1, 2 and 3 of the MA Amendment Act

*       Mutual Assistance in Criminal Matters (United Kingdom) Regulations

*       Mutual Assistance in Criminal Matters Regulations (Amendment)

*        Magistrate Arrangements between the Commonwealth and Norfolk Island

The purpose of the proposed regulations is to repeal all existing regulations applying the Act to a country on a unilateral basis without the existence of a treaty.

The reason for repeal of the "non-treaty" application of the Act regulations is because Schedule 1 of the MA Amendment Act repeals the prior requirement for application of the Act by regulation to a foreign country before mutual assistance could be granted or requested (this amendment will enable Australia to more expeditiously request and provide mutual assistance). Upon proclamation of Schedule 1 of the MA Amendment Act the Act will apply to all foreign countries. Australia's existing international obligations under bilateral and multilateral mutual assistance treaties which are already in force are met by "savings" provisions in Schedule 1 of the MA Amendment Act which continue such treaties in force. There is no "savings" provision in relation to provisions which enabled regulations to apply the Act to a foreign country on a unilateral basis without the existence of a treaty.

Schedule 1 of the MA Amendment Act also enables new regulations to be made to give effect to new mutual assistance treaties which are entered into in the future. It is intended that new bilateral mutual assistance treaties will only be entered into with other countries where the domestic legal requirements of the other country for it to be able to provide mutual assistance to Australia include that there be a treaty in existence.

The purpose of these regulations is to repeal all existing regulations applying the Act to a country on a unilateral basis without the existence of a treaty.

The 8 sets of regulations to be repealed by the regulations are listed in the Schedule to the regulations. They consist of 3 sets of regulations applying the whole of the MA Act to countries on a "non-treaty" basis (the Federal Republic of Germany, New Zealand and the Republic of Vanuatu), 4 sets of regulations applying some Parts of the MA Act to countries on a "non-treaty" basis (Japan, Republic of Singapore, Papua New Guinea and the United States of America [Statutory Rules 1989 No. 114 and Statutory Rules 1994 No. 442]) and one set of "special purpose" regulations (United States of America - Statutory Rules 1996 No. 175 - applying Part VIA of the MA Act to the USA to enable provision of information under the Financial Transaction Reports Act 1988 to the USA).

The final set of regulations which are repealed by the regulations apply the MA Act to a comprehensive list of countries for the limited purpose of enabling service of foreign criminal process in Australia (Mutual Assistance in Criminal Matters (Service of Documents) Regulations)). Item 93 of Schedule 1 of the MA Amendment Act repeals Part VII of the MA Act which contained a service of foreign criminal process provision (section 38). Service of foreign criminal process was possible prior to the commencement of the MA Act on 1 August 1988 and remained possible outside of the MA Act after its commencement. The former section 38 is repealed by item 93 since it is unnecessary and undesirable for it to remain in the MA Act. Consequential upon its repeal the Mutual Assistance in Criminal Matters (Service of Documents) Regulations are repealed by the regulations.

Details of the Regulations are as follows:

Regulation 1 provides that the Regulations commence on the day on which the items in Schedules 1, 2 and 3 of the MA Amendment Act commence.

Regulation 2 provides that the Statutory Rules listed in the Schedule to the regulations are repealed.

The Schedule to the regulations lists the various regulations which are repealed by the regulations.