Commonwealth Numbered Regulations - Explanatory Statements

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MUTUAL ASSISTANCE IN CRIMINAL MATTERS (FEDERAL REPUBLIC OF GERMANY) REGULATIONS 1993 NO. 147

Statutory Rules 1993 No. 147

Issued by the Authority of the Attorney-General

Mutual Assistance in Criminal Matters Act 1987

Mutual Assistance in Criminal Matters (Federal Republic of Germany) 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. Section 7 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 mutual assistance in criminal matters treaty or otherwise.

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 the 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 making of the Regulations the Act had not been applied to the Federal Republic of Germany thereby limiting the assistance that could be sought or provided pursuant to the Act so far as Germany was concerned. Although Australia and Germany are close to agreement on the text of a mutual assistance in criminal matters treaty, it is not expected that the treaty will be in force for some time. Pending the bringing into force of the treaty, the Act has been applied to Germany because Germany has laws enabling it to provide mutual assistance in response to Australian requests and hence can provide reciprocity to Australia.

In addition to the above, the need has arisen for Australia to make a request to Germany for 'search and seizure' assistance pursuant to the Act. Such assistance may be requested only if the Act applies to Germany. Although the Act could have been applied in a limited way to Germany to allow this request to proceed, the Act has been applied to Germany in toto, pending the entry into force of the treaty with Germany for the reasons set out above.

The Regulations apply the Act to the Federal Republic of Germany in its entirety.

Details of the Regulations are as follows:

Regulation 1 is a citation provision.

Regulation 2 applies the Act in its entirety to the Federal Republic of Germany.