Commonwealth Numbered Regulations - Explanatory Statements

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MUTUAL ASSISTANCE IN CRIMINAL MATTERS (UNITED KINGDOM) REGULATIONS 1995 NO. 189

Statutory Rules 1995 No. 189

Issued by the Authority of the Attorney-General

Mutual Assistance in Criminal Matters Act 1987

Mutual Assistance in Criminal Matters (United Kingdom) Regulations

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(2) of the Act provides that regulations may apply the Act to a foreign country subject to such limitations, conditions, exceptions, or qualifications referred to in the regulations in accordance with subsection 7(2AA). Subsection 7(2AA) provides that the regulations may be applied to a foreign country as set out in paragraphs 7(2AA)(a), (b) and (c). Paragraph 7(2AA)(a) provides that the regulations may give effect to a bilateral mutual assistance treaty between Australia and that country, being a treaty a copy of which is set out in the regulations. Paragraph 7(2AA)(c) provides that the regulations may give effect to any non-treaty mutual assistance relationship with a foreign country that is set out or identified in the regulations.

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, holding in custody of prisoner witnesses in transit to third countries, 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.

Under the regulations repealed by the 1995 regulations, the Act had been applied in a limited way to the United Kingdom by the Mutual Assistance in Criminal Matters (United Kingdom) Regulations (Statutory Rules Nos. 254 of 1990 and 111 of 1993).

The 1990 regulations gave domestic effect to the mutual assistance in criminal matters treaty between Australia and the United Kingdom signed on 3 August 1988. The Treaty, which entered into force on 12 September 1990, binds the two countries under international law to assist each other in the investigation and prosecution of drug-related matters.

Statutory Rules No. 111 of 1993 applied Parts I, II, III, and VIII of the Act to the United Kingdom in relation to non-drug matters. The Regulations were made to allow requests to be made to the United Kingdom for 'search and seizure' assistance.

The 1995 regulations extends the application of the Act to the United Kingdom in non-drug matters pursuant to an understanding reached at officials' level between Australia and the United Kingdom. This will increase the assistance that may be sought from, or provided to, the United Kingdom in relation to non-drug matters to enable persons, including prisoners, to give evidence or assist investigations in the other country, holding in custody of prisoner witnesses in transit to third countries, service of documents and the restraint, forfeiture and confiscation of proceeds of crime. The 1995 regulations continue to give effect to the drugs-limited treaty. For reasons of drafting clarity the 1990 and 1993 regulations were repealed.

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 Kingdom because there is no agreement between Australia and the United Kingdom for the exchange of such information.

The 1995 Regulations commenced on Gazettal.

Details of the 1995 Regulations are as follows:

Regulation 1 is a citation provision.

Regulation 2 is an interpretative provision, which amongst other things, provides that a copy of the drugs-limited mutual assistance treaty is set out in the Schedule to the 1995 regulations.

Subregulation 3(1) applies the Act to United Kingdom subject to the Treaty so far as drug-related matters are concerned. Subregulation 3(2) provides that the Act, other than Part VIA, applies to the United Kingdom for all other matters not covered by the Treaty.

Regulation 4 repealed the earlier Statutory Rules which applied the Act to the United Kingdom.