EXPLANATORY STATEMENT

 

 

Select Legislative Instrument 2005 No. 188

 

Issued by the authority of the Minister for Justice and Customs

 

Mutual Assistance in Criminal Matters Act 1987

 

Mutual Assistance (Transnational Organised Crime) Amendment Regulations 2005 (No. 1)

Section 44 of the Mutual Assistance in Criminal Matters Act 1987 (the Act) provides, in part, that the Governor-General may make regulations, not inconsistent with the Act, 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 Act allows for international assistance in criminal matters to be provided and obtained by Australia.  While the Act allows Australia to make requests to and receive requests from all countries, mutual assistance requests are facilitated by treaty arrangements. 

The purpose of the Regulations is to facilitate Australia’s ability to make and receive mutual assistance requests to and from States Parties to the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (the Trafficking Protocol), for the offences in the Trafficking Protocol.

Section 7 of the Act provides that the Act applies to all foreign countries (subsection 7(1)), but that the regulations may provide that the Act applies to a foreign country subject to any multilateral mutual assistance treaty (being a treaty to which that country is a party) that is referred to in the regulations (paragraph 7(2)(b)).  Paragraph 7(3)(b) provides that if the regulations provide that the Act applies to a foreign country subject to a treaty which relates in part to the provision of assistance in criminal matters, then the Act applies subject to the limitations, conditions, exceptions or qualifications that are necessary to give effect, in relation to that country, to that part of the treaty that relates to the provision of assistance in criminal matters.

On 27 May 2004, following approval by the Executive Council that same day, Australia ratified the United Nations Convention Against Transnational Organised Crime (the Convention) and the Protocol against the Smuggling of Migrants by Land, Air and Sea (the Smuggling Protocol).

Australia is now progressing ratification of the Trafficking Protocol.

Article 18 of the Convention contains obligations for mutual assistance in criminal matters.  These obligations also apply to the Trafficking Protocol.  Article 2 of the Trafficking Protocol provides that the Convention’s provisions apply mutatis mutandis to the Trafficking Protocol, that is, that the provisions of the Convention apply to the Trafficking Protocol with any necessary adjustment.  This means that the obligation to extend mutual assistance contained in Article 18 of the Convention includes an obligation to extend mutual assistance in connection with the Trafficking Protocol.  These obligations apply only to other States Parties to the Convention and the Trafficking Protocol. 

The Mutual Assistance (Transnational Organised Crime) Regulations 2004 (the Principal Regulations) apply the Act to States Parties to both the Convention and the Smuggling Protocol, in order to meet the mutual assistance obligations in the Convention and the Smuggling Protocol.

A State Party to a Protocol to the Convention must also be a State Party to the Convention.  The Principal Regulations therefore apply the Act to States Parties to the Convention subject to the Convention, and to States Parties to the Convention and the Smuggling Protocol subject to both the Convention and the Smuggling Protocol. 

The purpose of the Regulations is to amend the Principal Regulations to apply the Act to States Parties to both the Convention and the Trafficking Protocol, in order to meet the mutual assistance obligations in the Convention and the Trafficking Protocol.

The Regulations apply the Act to a foreign country that is a State Party to the Convention and the Trafficking Protocol, subject to the Convention and the Trafficking Protocol.  The Regulations insert the text of the Trafficking Protocol in new Schedule 3 to the Principal Regulations.

The Regulations facilitate Australia’s ability to make and receive requests to and from a State Party to the Trafficking Protocol for mutual assistance for an offence specified in the Trafficking Protocol.

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

The Government expects that the Trafficking Protocol will enter into force for Australia on 16 October 2005.  To ensure Australia’s compliance with the mutual assistance obligations in the Convention and the Trafficking Protocol on that date, the Regulations commence on 14 October 2005. 

Consultation was unnecessary for this legislative instrument as this instrument is of a minor or machinery nature and does not substantially alter existing arrangements.  It has no direct, or substantial indirect effect on business. 

Details of the Regulations are as follows:

Regulation 1 – Name of Regulations

This regulation provides that the title of the Regulations is the Mutual Assistance (Transnational Organised Crime) Amendment Regulations 2005 (No. 1).

Regulation 2 – Commencement

This regulation provides for the Regulations to commence on 14 October 2005.

Regulation 3 – Amendment of Mutual Assistance (Transnational Organised Crime) Regulations 2004

This regulation provides that the Mutual Assistance (Transnational Organised Crime) Regulations 2004 (the Principal Regulations) are amended as set out in the Schedule 1.

Schedule 1 – Amendments

Item [1] – Regulation 3

Regulation 3 sets out the defined terms used in the Principal Regulations.  This item inserts the defined term ‘Trafficking Protocol’.

Item [2] – Subregulation 4(2), notes 1 and 2

Notes 1 and 2 to subregulation 4(2) explain how foreign countries become a State Party to the Convention and the Smuggling Protocol.  This item deletes Notes 1 and 2.

Item [3] – New subregulation 4(3) and notes 1 to 4

Regulation 4 sets out the application of the Act.  This item inserts subregulation 4(3) to apply the Act to a foreign country that is a State Party to the Convention and the Trafficking Protocol, subject to the Convention and the Trafficking Protocol. 

This item also inserts Notes 1 to 4 after subregulation 4(3) to explain how foreign countries become a State Party to the Convention, the Smuggling Protocol and the Trafficking Protocol, as well as details of how to obtain a current list of States Parties to the Convention, the Smuggling Protocol and the Trafficking Protocol.

Item [4] – New Schedule 3

This item inserts new Schedule 3 to include the text of the Trafficking Protocol in the Principal Regulations.