EXPLANATORY STATEMENT

 

Select Legislative Instrument 2007 No. 7

 

Issued by the Authority of the Minister for Justice and Customs

 

Mutual Assistance in Criminal Matters Act 1987

 

Mutual Assistance in Criminal Matters (The People’s Republic of China) Regulations 2007

 

 

The Mutual Assistance in Criminal Matters Act 1987 (the Act) allows for international assistance in criminal matters to be provided and obtained by Australia.

 

Section 44 of the Act provides, in part, that the Governor‑General may make regulations, not inconsistent with the Act, prescribing all 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 states 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.

 

The Mutual Assistance in Criminal Matters (The People’s Republic of China) Regulations 2007 (the Regulations) gives effect in Australian domestic law to the Treaty between Australia and The People’s Republic of China on Mutual Legal Assistance in Criminal Matters, signed at Canberra on 3 April 2006 (the Treaty). The Treaty, once in force, will bind Australia and The People’s Republic of China in international law to provide each other with mutual assistance in criminal matters including: search and seizure, service of documents, taking of evidence, arranging for witnesses to give evidence or to assist in investigations and the location, restraint and forfeiture of instruments and proceeds of crime.

The Joint Standing Committee on Treaties recommended binding treaty action be taken in relation to the Treaty in Report 80, tabled on 19 October 2006.

As in all of Australia’s mutual assistance in criminal matters treaties, the Treaty contains internationally accepted safeguards, including that assistance shall not be granted for political or military offences or 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. Assistance shall also be refused where the grant of a request would, in the opinion of the country receiving the request, prejudice its sovereignty or security.

 

The Treaty provides for discretionary grounds of refusal of a request for mutual legal assistance. Assistance may be refused if the request relates to acts or omissions which would not constitute an offence under the laws of the requested country, or if provision of the assistance could prejudice an investigation, prosecution or proceeding in that country. The country receiving the request also has a discretion to refuse assistance if it believes that granting the request would prejudice its national or other essential interests. Assistance may also be refused where the request relates to the investigation, prosecution or punishment of a person for an offence in respect of which a penalty may be imposed which may be in conflict with the essential interests of the requested country. In the Agreed Minutes to the Treaty, Australia notes that the imposition of the death penalty may be in conflict with the essential interests of Australia, and China acknowledges Australia’s position. The Agreed Minutes, which do not form part of the Treaty, are mentioned in the Regulations by way of a note to regulation 4.

The Regulations commence on the day the Treaty comes into force for Australia. Under the terms of the Treaty, the Parties are to inform each other by diplomatic note when all necessary steps have been taken under their respective laws for entry into force of the Treaty. The Treaty enters into force thirty days after the date of the later diplomatic note.

The Office of Regulation Review (Productivity Commission) has been consulted and has advised that a Regulation Impact Statement is not required.

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

Regulation 1 specifies the name of the Regulations.

Regulation 2 provides that the Regulations commence on the day that the Treaty comes into force.

Regulation 3 defines Act to mean the Mutual Assistance in Criminal Matters Act 1987.

Regulation 4 provides that the Mutual Assistance in Criminal Matters Act 1987 applies to The People’s Republic of China subject to the Treaty.

Schedule 1 contains the text of the Treaty.