This Digest is prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments.
This Digest was available from 12 September 1996.
Mutual Assistance in Criminal Matters Legislation
Amendment Bill 1996
Date Introduced: 26 June 1996
House: House of Representatives
Commencement: Upon Royal Assent with the exception
of the Schedule items which commence on a day or days to be fixed
by Proclamation or, if this has not occurred within 6 months of the
Royal Assent, then on the first day after the six month period.
To amend the Mutual Assistance in Criminal Matters Act
1987 so as to facilitate the requesting by Australia of the
assistance of other countries (and the providing of reciprocal
assistance) in relation to the investigation and prosecution of
The Mutual Assistance in Criminal Matters Act 1987 (the
Principal Act) is the legislation that enables Australia to grant
assistance to or request assistance from foreign countries in
relation to criminal matters. This includes the investigation of
crime and the legal proceedings connected with the prosecution of
crime, such as the taking of witness statements etc.
The Principal Act was reviewed in 1994-95 and many of the
changes implemented by the Bill stem from recommendations arising
out of that review process.
Australia has signed a number of bilateral treaties agreeing to
cooperate with various countries in relation to criminal matters.
In the Second Reading Speech, the Attorney-General Mr Daryl
Williams stated that since 1 August 1988 (the date the Principal
Act came into force):
17 treaties which have been negotiated pursuant to the act have
come into force. Another three treaties have been signed and are
awaiting entry into force.
- Treaty on Mutual Assistance in Criminal Matters with Argentina
(entered into force on 3 January 1993).
- Treaty on Mutual Assistance in Criminal Matters with Austria
(entered into force on 1 December 1990).
- Treaty on Mutual Assistance in Criminal Matters with Canada
(entered into force on 14 March 1990).
Among the list of countries that have concluded such treaties
with Australia are: Ecuador; Finland; France; Israel; Italy;
Republic of Korea; Luxembourg; Mexico; the Netherlands; the
Philippines; Portugal and Switzerland.
The co-operation of countries in relation to the investigation
and prosecution of crime is especially important for the control of
international crimes such as drug trafficking.
Items 1-2 repeal the existing section 5 of the
Principal Act and introduce a new section 5. The first section (the
proposed section 5(a) ) covers the situations where a foreign
country has requested Australia's assistance in taking evidence,
issuing a search warrant, confiscating property, enforcing fines
for certain overseas offences and the restraining of dealings in
property that may be required to satisfy certain fines.
The second section (the proposed section 5(b)) deals with
requests where the person is currently in Australia but would have
to travel to the requesting country (eg to give evidence).
Item 2 amends section 6 to make it absolutely
clear that forms of international assistance in criminal matters
other than those specified in the legislation, may still
Item 3 replaces section 7 with a new provision
that provides that regulations may be made applying to foreign
countries so long as they are consistent with any relevant treaty.
The proposed section provides that the Act applies subject to
limitations found in any relevant treaty.
Part 2 -Requests for assistance
Item 11 repeals the existing section 10 and
substitutes another paragraph that makes it clear that whilst only
the Attorney-General may make a request for international
assistance in a criminal matter, the Attorney-General is not
prevented from making requests other than those specified in the
Principal Act, for international assistance in criminal
Item 12 sets out the formal requirements for a
request. These will be simplified under the Bill with the dropping
of many details that were previously required. For example, the
existing provision requires details of the requesting country's
wishes concerning the confidentiality of the request. Such
provisions will be dispensed with.
Item 13 inserts a requirement that all requests
for assistance received by an Australian Court from a foreign
country be passed on to the Attorney-General.
Item 14 extends the existing provisions
regarding Australia making requests for international assistance in
criminal matters. The new provision makes it clear that the foreign
country may take any evidence permitted under its law whether or
not it would have been permitted under Australian law.
Proposed subsection 12 (3) allows Australia to
request that a person give evidence from the foreign country via
Item 21 inserts a provision in the existing
subsection 13 (4) that will allow legal representatives to examine
or cross-examine witnesses via video link. This is likely to be
extremely useful for relatively routine evidence such as obtaining
formal proofs of tendered documents etc. The use of video link is
already used in Australia for various matters. Examples of current
use include children's evidence in some jurisdictions and for some
offences (such as in sexual assault involving a minor) and
applications for leave to appeal to the High Court.
Item 27 replaces subsections 14(2) and (3) with
provisions that will allow Australia to request the appropriate
authority of the foreign country to authorise a search warrant,
conduct a search, seize evidence and send the seized items to
Proposed subsection 14(3) makes it clear that if the foreign
authority obtains evidence by methods that are lawful within that
country (although not necessarily requested by Australia or
included in the search warrant) then the evidence is not
inadmissible in subsequent Australian proceedings just because it
was obtained by such a method and may also be used for the purposes
Item 32 repeals the existing subsections 15(2)
-(15). These deal with the issuing and execution of a search
warrant at the request of a foreign country. The replacing sections
will be located in the new Part VIIA (please see item 59).
Item 37 proposes a new section. Section 39A
will allow a defendant, in proceedings relating to criminal
matters, to apply to the Supreme Court in the relevant State or
Territory for the Attorney-General to make a request for the
assistance of a foreign country so as to obtain evidence in one
form or another. This is a significant change to the Principal Act
as it allows the defendant to initiate a request for assistance
(since if the Supreme Court decides to grant the request, they may
issue a certificate which the Attorney-General is then obliged to
Proposed section 39B provides that if the foreign country
refuses a request, the Attorney-General must give a certificate of
writing to that effect and the certificate is prima facie evidence
of the facts contained within it.
Items 38 to 43 inclusive, deal with the refusal
of assistance. The existing section 8 provides a list of factors
which might lead to the refusing of a request from a foreign
country for assistance. The proposed addition includes the ground
where the death penalty may be imposed by the foreign country. So
the Attorney-General may refuse to assist if he or she believes
that such assistance may result in the death penalty being imposed
upon somebody and is of the opinion that 'in the circumstances of
the case' the request should be refused.
Item 44 inserts new section 43B which provides
that information obtained pursuant to a request under the Principal
Act may not be used intentionally for any other purpose, without
the Attorney-General's permission. Such other information is
inadmissible in evidence (without the approval of the
Attorney-General) and there is a penalty of 2 years imprisonment
for anyone convicted of misusing the information.
Item 44 also inserts new section 43C which makes it an offence
to disclose information regarding requests under the Principal Act.
The penalty for such unauthorised disclosure is a maximum of 2
Items 45-58 amend the definitions section of
the Principal Act.
Item 59 inserts the new Part VIIA which deals
with the powers of search, seizure and arrest. The Explanatory
Memorandum (at p12) notes that the new Part VIIA brings the
Principal Act into line with the search and seizure provisions in
the Crimes Act 1914. Indeed the language of much of the
proposed Part VIIA is identical to provisions in the Crimes Act
1914. For example, section 3S of the Crimes Act 1914
places restrictions on personal searches:
3S. A warrant can not authorise a strip search or a search of a
person's body cavities.
Similarly, proposed section 38G provides:
38G A warrant may not authorise a strip search or a search of a
person's body cavities.
The proposed section 38W specifies that an ordinary search or a
frisk search of a person must be conducted by a person of the same
sex as the sex of the person being searched.
Most other proposed provisions in Part VIIA are as similar in
wording to the Crimes Act 1914 as the above example. The
methods of obtaining and executing a search warrant are almost
identical and, for example, the proposed Part VIIA mirrors the
rights and obligations of the occupier of the premises being
searched with those that are contained in the Crimes Act
1914. The areas covered include: applications for search
warrants including applications over the telephone; what
information is to be included in a search warrant; how the
execution of a warrant is to be carried out; what force may be used
in executing a search warrant and the powers of arrest.
Proposed Part 6 inserts more definitions with
Item 73 repeals existing section 24, which
makes it an offence attracting 2 year's imprisonment to escape from
custody that is pursuant to the Principal Act. The Explanatory
Memorandum (at p31) points out that this created an Australian
offence, punishable by imprisonment within Australia, whereas it
made more sense to try to return the person to custody so that they
could be sent back to the relevant foreign country.
Item 75 adds an offence in proposed section 25A
of aiding a person to escape from lawful custody under the
Item 93 repeals Part VII of the Principal Act,
which deals with the service of documents. The Explanatory
Memorandum (at p37) states that criminal process may be served in
Australia on behalf of a foreign country irrespective of the
Principal Act and so Part VII is unnecessary.
Item 96 amends section 40 of the Principal Act
so as to enable the Attorney-General to delegate any or all of his
or her powers, except the power of delegation itself.
Schedule 2 amends the Financial Transaction
Reports Act 1988 (which gives certain authorities access to
information collected in the administration and enforcement of the
taxation laws) in a technical way that does not affect the
Attorney-General's right to access financial transaction reports in
relation to matters under the Principal Act.
Schedule 3 amends the Proceeds of Crime Act
1987 (which aims to deprive people of the benefits of crime by
forfeiting property to the Commonwealth and allows the authorities
to trace certain financial dealings) so that the Director of Public
Prosecutions can apply for a restraining order against the property
of a person charged or about to be charged with an offence that is
a serious offence in a foreign country.
Susan Downing Ph. 06 277 2784
9 September 1996
Bills Digest Service
Parliamentary Research Service
This Digest does not have any official legal status. Other
sources should be consulted to determine whether the Bill has been
enacted and, if so, whether the subsequent Act reflects further
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© Commonwealth of Australia 1996
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Last updated: 6 September 1996
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