Commonwealth Numbered Regulations - Explanatory Statements

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MUTUAL ASSISTANCE IN CRIMINAL MATTERS (REPUBLIC OF ECUADOR) REGULATIONS 1997NO. 304

Statutory Rules 1997 No. 304

Issued by the Authority of the Minister for Justice

Mutual Assistance in Criminal Matters Act 1987

Mutual Assistance in Criminal Matters (Republic of Ecuador) 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. Paragraph 7 (2) (a) of the Act provides that regulations may provide that the Act applies to a specified foreign country subject to any mutual assistance treaty between that country and Australia that is referred to in the regulations. Paragraph 7 (3) (a) of the Act provides that, if regulations provide, in accordance with subsection 7 (2), that the Act applies to a foreign country subject to a mutual assistance treaty then the Act applies subject to the limitations, conditions, exceptions or qualifications that are necessary to give effect to the treaty in relation to that country.

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 and the restraint, forfeiture and confiscation of proceeds of crime.

The Regulations will give effect in Australian domestic law to the Treaty between the Government of Australia and the Government of the Republic of Ecuador on Mutual Assistance in Criminal Matters, signed at Quito on 16 December 1993 ("the Treaty"). The Treaty was tabled in the House of Representatives on 29 June 1994 and in the Senate on 23 August 1994. The Treaty, once in force, binds the two countries under international law to provide each other with the kinds of assistance referred to above, and in addition to provide official documents and records, assist in location and identification of persons, serve documents and provide other similar assistance not inconsistent with the law of the requested State.

In accordance with the Government's policy on greater parliamentary involvement in Australia's treaty-making processes, the National Interest Analysis for the Treaty was tabled in Parliament on 21 May 1996. The period of fifteen sitting days following tabling elapsed on 27 June 1996.

Under Article 22 of the Treaty, the Treaty enters into force thirty days after the date on which the Contracting Parties have notified each other that their respective requirements for the entry into force of the Treaty have been complied with. Ecuador notified Australia on 24 August 1995 that its requirements for the Treaty's entry into force had been complied with. Australia's requirement for the Treaty's entry into force is the making of the Regulations. The drafting of the Regulations was delayed pending Ecuador's agreement to a number of rectifications of the English language text of the Treaty as signed. The Republic of Ecuador will be notified on 28 November 1997 that Australia's requirements for the Treaty's entry into force have been complied with. Thirty days after that date, that is on 28 December 1997, the Treaty will enter into force. Accordingly, 28 December 1997 is also the commencement date of the Regulations.

As with all of Australia's mutual assistance in criminal matters treaties, the Treaty contains a range of human rights safeguards similar to those which are internationally accepted as applicable to extradition. Under the Treaty, assistance will not be provided where a request is made for the purpose of prosecuting or punishing a person on account of his or her race, sex, religion, nationality or political opinions or where a request relates to a political or military law offence. The Treaty does not expressly provide for refusal of assistance where a request relates to an offence in respect of which the death penalty may be imposed or executed, but Ecuador abolished the death penalty in 1906 and is a party to the Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty.

Details of the Regulations are as follows:

Regulation 1 is a citation provision.

Regulation 2 provides that the Regulations commence on 28 December 1997, which is the date on which it is planned the Treaty will come into force.

Regulation 3 is a definition provision.

Subregulation 4 (1) provides that the Mutual Assistance in Criminal Matters Act 1987 applies to the Republic of Ecuador subject to the Treaty between the Government of Australia and the Government of the Republic of Ecuador on Mutual Assistance in Criminal Matters.

Subregulation 4 (2) provides that a copy of the Treaty is set out in the Schedule.

The Schedule to the Regulations contains the text of the Treaty between the Government of Australia and the Government of the Republic of Ecuador on Mutual Assistance in Criminal Matters, done at Quito on 16 December 1993.