Commonwealth Numbered Regulations

1990 No. 254 MUTUAL ASSISTANCE IN CRIMINAL MATTERS (UNITED KINGDOM) REGULATIONS - SCHEDULE

                                    SCHEDULE               Regulation 4
TREATY BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF THE UNITED
KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND CONCERNING THE INVESTIGATION OF
DRUG TRAFFICKING AND CONFISCATION OF THE PROCEEDS OF DRUG TRAFFICKING The
Government of Australia and the Government of the United Kingdom of Great
Britain and Northern Ireland; Desiring to provide mutual assistance, to the
extent possible within their respective laws, in the investigation of drug
trafficking and the confiscation of the proceeds of drug trafficking; Have
agreed as follows:
Article 1
Scope of Application 1. The Parties shall, in accordance with this Treaty,
grant to each other assistance in investigations and proceedings in respect of
drug trafficking, including the tracing, restraining and confiscation of the
proceeds of drug trafficking. 2. This Treaty shall not derogate from other
obligations between the Parties whether pursuant to other treaties or
arrangements or otherwise, nor prevent the Parties providing assistance to
each other pursuant to other treaties or arrangements.
Article 2
Definitions For the purposes of this Treaty:

   (a)  proceedings are:

        (i)    instituted when an information has been laid before a justice
               of the peace, when a person is charged with an offence after
               having been taken into custody without a warrant, or when a
               bill of indictment is preferred; and

        (ii)   concluded when no further action may be taken to obtain a
               restraining or confiscation order or to enforce such an order
               in those proceedings;

   (b)  "drug trafficking" means engaging or being concerned in the unlawful
        production, supply, possession for supply, transport, storage, import
        or export of a controlled drug or a narcotic substance, whether in the
        United Kingdom, Australia or elsewhere;

   (c)  "controlled drug" means a drug specified in Schedule 2 to the Misuse
        of Drugs Act 1971 for the United Kingdom or a narcotic substance as
        defined in the Proceeds of Crime Act 1987 for Australia;

   (d)  "drug trafficking offence" means an offence of drug trafficking or
        conspiring or attempting to commit such an offence or inciting,
        aiding, abetting, counselling, procuring or being an accessory after
        the commission of such an offence. An offence of assisting another to
        retain or to dispose of the proceeds of drug trafficking is also a
        drug trafficking offence;

   (e)  "proceeds" means any property that is derived or realised, directly or
        indirectly, by any person from drug trafficking, or the value of any
        such property;

   (f)  property includes money and all kinds of moveable or immoveable and
        tangible or intangible property, and includes any interest in such
        property.
Article 3
Central Authorities 1. The Parties shall each appoint a central authority to
transmit and receive requests for the purpose of this Treaty. Unless the
relevant Party designates another authority, the central authority for
Australia shall be the Attorney-General's Department, Canberra and the central
authority for the United Kingdom shall be the Home Office, London. 2. The
central authority of the Requested Party shall take whatever steps it
considers necessary to give effect to requests from the Requesting Party.
Article 4
Contents of Requests 1. Requests for assistance shall include a statement of:

   (a)  the name of the competent authority conducting the investigation or
        proceedings to which the request relates;

   (b)  the matters, including the relevant facts and laws, to which the
        investigation or proceedings relate;

   (c)  the purpose for which the request is made and the nature of the
        assistance sought;

   (d)  details of any particular procedure or requirement that the Requesting
        Party wishes to be followed;

   (e)  the need, if any, for confidentiality and the reasons therefore; and

   (f)  any time limit within which compliance with the request is desired. 2.
        Requests for assistance shall also include:

   (a)  if possible, where the request seeks assistance in relation to an
        investigation, the quantity of drugs involved in the investigation;

   (b)  the identity, nationality and location of the person or persons who
        are the subject of the investigation or proceeding;

   (c)  a statement as to what sworn or affirmed evidence or statements are
        required, if any;

   (d)  a description of any information, statements or evidence sought;

   (e)  a description of any documents, records or articles of evidence to be
        produced as well as a description of the appropriate person to be
        asked to produce them and, to the extent not otherwise provided for,
        the form in which they should be reproduced and authenticated. 3. If
        the Requested Party considers that the information contained in the
        request is not sufficient to enable the request to be dealt with, that
        Party may request that additional information be furnished.
Article 5
Execution of Requests 1. To the extent permitted by its laws, the Requested
Party shall provide assistance in accordance with the requirements specified
in the request and shall respond to the request as soon as practicable after
it has been received. 2. The Requested Party may postpone the delivery of
material requested if such material is required for proceedings in respect of
criminal or civil matters in its territory. The Requested Party shall, upon
request, provide certified copies of documents. 3. The Requested Party shall
promptly inform the Requesting Party of any circumstances which are likely to
cause a significant delay in responding to the request. 4. The Requested Party
shall promptly inform the Requesting Party of a decision of the Requested
Party not to comply in whole or in part with a request for assistance and the
reason for that decision. 5. The Requesting Party shall promptly inform the
Requested Party of any circumstances which may affect the request or its
execution or which may make it inappropriate to proceed with giving effect to
it.
Article 6
Refusal of Assistance 1. Assistance shall be refused if the request relates to
an offence in respect of which:

   (a)  the person has been finally acquitted or pardoned; or

   (b)  the person has served any sentence imposed and any order made as a
        result of the conviction has been satisfied. 2. Assistance may be
        refused if:

   (a)  the Requested Party is of the opinion that the request, if granted,
        would seriously impair its sovereignty, security, national interest or
        other essential interests; or

   (b)  provision of the assistance sought could prejudice an investigation or
        proceedings in the territory of the Requested Party, prejudice the
        safety of any person or impose an excessive burden on the resources of
        that Party. 3. Before refusing to grant a request for assistance the
        Requested Party shall consider whether assistance may be granted
        subject to such conditions as it deems necessary. If the Requesting
        Party accepts assistance subject to these conditions, it shall comply
        with the conditions.
Article 7
Information and Evidence 1. The Parties may make requests for information and
evidence pursuant to this Treaty for the purpose of an investigation or a
proceeding. 2. The Requested Party shall as appropriate and insofar as its
laws permit:

   (a)  provide information and documents or copies thereof for the purpose of
        an investigation or a proceeding in the territory of the Requesting
        Party;

   (b)  take the evidence of witnesses and require witnesses to produce
        documents, records or other material, for transmission to the
        Requesting Party;

   (c)  search for and seize and deliver to the Requesting Party any relevant
        material and provide such information as may be required by the
        Requesting Party concerning the place of seizure, the circumstances of
        seizure and the subsequent custody of the material seized prior to
        delivery. 3. Where required by the Requested Party, the Requesting
        Party shall return material provided under this Treaty when no longer
        needed for any investigation or proceeding.
Article 8
Restraint of Property Liable to Confiscation 1. Where proceedings in the
territory of a Party may result in the making of an order mentioned in
paragraph 1 of Article 9, or where such an order has been made, that Party may
request the restraint in the territory of the Requested Party of property for
the purpose of ensuring that it is available for confiscation. 2. A request
made under this Article shall include:

   (a)  a certificate to the effect that proceedings have been instituted on a
        specified date against a specified person and that those proceedings
        have not been concluded or that such proceedings are to be instituted
        within a specified time;

   (b)  a description of the property to be restrained and its connnection
        with the person specified under sub-paragraph (a) of this paragraph,
        and insofar as possible its whereabouts; and

   (c)  details of any relevant order made by a court of the Requesting Party.
        3. Where the restraint of property has been ordered pursuant to this
        Treaty but there is a representation in the territory of the Requested
        Party by a person affected by the order, that Party shall inform the
        Requesting Party as soon as possible and shall also inform it promptly
        of the outcome of that representation.
Article 9
Assistance in Enforcing the Confiscation of Proceeds 1. This Article applies
to an order made by a court of the Requesting Party as a result of a
conviction for a drug trafficking offence, for the purpose of the confiscation
of the proceeds of drug trafficking, including:

   (a)  in relation to the United Kingdom, a confiscation order made as a
        result of a conviction for a drug trafficking offence;

   (b)  in relation to Australia, any forfeiture order and any pecuniary
        penalty order made as a result of a conviction for a drug trafficking
        offence. 2. A Party may request the assistance of the other Party in
        enforcing an order to which this Article applies. 3. A request made
        under this Article shall be accompanied by the following documents:

   (a)  an authenticated copy of the order;

   (b)  an authenticated statement that neither the order nor any conviction
        to which it relates is subject to appeal;

   (c)  a description of the property in relation to which assistance is
        sought and its connection with the convicted person; and

   (d)  where appropriate, a statement of the amount which it is desired to
        realise as a result of the assistance. 4. Proceeds confiscated
        pursuant to this Treaty shall be retained by the Requested Party,
        unless otherwise mutually decided in a particular case. 5. Where the
        confiscation of proceeds has been ordered pursuant to this Treaty but
        there is a representation in the territory of the Requested Party by a
        person affected by the order, that Party shall inform the Requesting
        Party as soon as possible, and shall also inform it promptly of the
        outcome of that representation.
Article 10
Protecting Confidentiality and Restricting Use of Evidence and Information 1.
The Requested Party shall, to any extent requested, keep confidential a
request for assistance, its contents and any supporting documents, and the
fact of granting such assistance. If the request cannot be executed without
breaching confidentiality, the Requested Party shall so inform the Requesting
Party which shall then determine the extent to which it wishes the request to
be executed. 2. The Requesting Party shall, if so requested, keep confidential
any evidence and information provided by the Requested Party, except to the
extent that its disclosure is necessary for the investigation or proceeding
described in the request. 3. The Requesting Party shall not use for purposes
other than those stated in a request evidence or information obtained as a
result of it, without the prior consent of the Requested Party.
Article 11
Certification and Authentication 1. Any documents or other material supporting
a request for assistance which seeks the exercise of compulsory powers or the
restraint or confiscation of property shall, to the extent required by the
Requested Party, be authenticated in accordance with paragraph 3. 2. Any
documents or other material supplied in response to a request for assistance
shall, to the extent requested, be authenticated in accordance with paragraph
3. 3. A document is authenticated for the purposes of this Treaty if:

   (a)  it purports to be signed or certified by a judge, magistrate or other
        officer in or of the State of the Party sending the document; and

   (b)  it purports to be authenticated by the oath or affirmation of a
        witness, or to be sealed with an official seal of the Party sending
        the document or of a minister of state or department or officer of the
        Government of that Party.
Article 12
Costs The Requested Party shall bear any costs arising in its territory in
executing a request, unless otherwise mutually decided in a particular case.
Article 13
Consultation The Parties shall consult promptly, at the request of either,
concerning the interpretation, the application or the carrying out of this
Treaty either generally or in relation to a particular case.
Article 14
Application to Scotland This Treaty shall apply in respect of requests from
the Government of Australia to Scotland, but for the purposes of Article 2 (a)
proceedings shall be considered to be instituted in Scotland when a warrant of
apprehension to arrest and commit a suspect person has been granted; or when a
person has been charged with an offence after having been arrested without a
warrant; or when a restraint order has been made under Section 8 of the
Criminal Justice (Scotland) Act 1987.
Article 15
Territorial Application This Treaty shall apply:

   (a)  in respect of requests from the Government of Australia,

        (i)    to England and Wales and Scotland;

        (ii)   upon notification made through the diplomatic channel by the
               United Kingdom to Australia, to Northern Ireland, and the
               Channel Islands and the Isle of Man;

        (iii)  to any territory for the international relations of which the
               United Kingdom is responsible and to which this Treaty shall
               have been extended by agreement between the Parties; and

   (b)  in respect of requests from the United Kingdom, to Australia.
Article 16
Entry into Force and Termination 1. Each of the Parties shall notify the other
in writing through the diplomatic channel that their respective requirements
for the entry into force of the Treaty have been completed. The Treaty shall
enter into force 30 days after the later of these notifications. 2. This
Treaty shall apply to a request made pursuant to it whether or not the drug
trafficking to which the request relates occurred prior to the Treaty entering
into force. 3. Either Party may terminate this Treaty at any time giving 180
days' written notice to the other through the diplomatic channel. In witness
whereof the undersigned, being duly authorised thereto by their respective
governments, have signed this Treaty. DONE in duplicate at Canberra on the 3rd
day of August 1988.
For the Government of Australia:          For the Government of the United

Kingdom of Great Britain and Northern
Ireland:
BOB HAWKE                                 MARGARET THATCHER