Bills Digest 29 1996-97 Mutual Assistance in Criminal Matters Legislation Amendment Bill 1996


Numerical Index | Alphabetical Index

WARNING:
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.

CONTENTS

Passage History

Mutual Assistance in Criminal Matters Legislation Amendment Bill 1996

Date Introduced: 26 June 1996
House: House of Representatives
Portfolio: Attorney-General
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.

Purpose

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 criminal matters.

Background

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.

Examples include:

  • 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.

Main Provisions

Schedule 1

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 proceed.

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 matters.

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 video-link.

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 Australia.

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 of investigation.

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 act upon).

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 years imprisonment.

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 items 60-70

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 Principal Act.

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.

Contact Officer and Copyright Details

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 amendments.

PRS staff are available to discuss the paper's contents with Senators and Members and their staff but not with members of the public.

ISSN 1323-9032
© Commonwealth of Australia 1996

Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, without the prior written consent of the Parliamentary Library, other than by Members of the Australian Parliament in the course of their official duties.

Published by the Department of the Parliamentary Library, 1996.

This page was prepared by the Parliamentary Library, Commonwealth of Australia
Last updated: 6 September 1996

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