Commonwealth Numbered Regulations
[Index]
[Table]
[Search]
[Search this Regulation]
[Notes]
[Noteup]
[Previous]
[Download]
[Help]
MUTUAL ASSISTANCE IN CRIMINAL MATTERS (UNITED KINGDOM) REGULATIONS 1999 1999 NO. 310 - SCHEDULE 1
Mutual assistance agreement
(regulation 3)
AGREEMENT BETWEEN
THE GOVERNMENT OF AUSTRALIA
AND
THE
GOVERNMENT OF THE UNITED KINGDOM
OF GREAT BRITAIN AND NORTHERN IRELAND
CONCERNING THE INVESTIGATION,
RESTRAINT AND CONFISCATION OF THE PROCEEDS
AND
INSTRUMENTS OF CRIME
THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF THE
UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND;
DESIRING to provide the
widest measure of mutual assistance in the investigation, restraint and
confiscation of the proceeds and instruments of crime;
HAVE AGREED as
follows:
Article 1
Scope of application
1. The Parties shall, in accordance
with this Agreement, grant to each other assistance in the investigation,
restraint and confiscation of the proceeds and instruments of crime.
2. This
Agreement shall be without prejudice to other obligations between the Parties
pursuant to other treaties and shall not prevent the Parties or their law
enforcement agencies from providing assistance to each other pursuant to other
treaties or arrangements.
Article 2
Definitions
For the purposes of this
Agreement: - (a)
- "confiscation" means any measure resulting in the final
deprivation of property;
- (b)
- "instruments of crime" means any property which is or is intended to be
used in connection with the commission of an offence;
- (c)
- "proceeds of crime" means any property derived or realised, directly or
indirectly, by any person as a result of criminal activity, or the value of
any such property;
- (d)
- "property" includes money and all kinds of moveable or immoveable and
tangible or intangible property, and includes any interest in such property;
- (e)
- "the restraint of property" means any measure for the prevention of
dealing in or transfer or disposal of property.
Article 3
Central authorities
1. Requests for assistance under this
Agreement shall be made through the central authorities of the Parties.
2. In
the United Kingdom the central authority is the Home Office. In Australia the
central authority is the Attorney-General's Department.
Article 4
Contents
of requests
1. Requests shall be made in writing. In urgent circumstances and
where permitted by the Requested Party, requests may be made orally but shall
be confirmed in writing thereafter.
2. 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 relates;
- (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)
- any time limit within which compliance with the request is desired; and
- (f)
- the identity, nationality and location of the person or persons who are
the subject of the investigation or proceedings.
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. A request shall be executed as permitted by and in accordance
with the domestic law of the Requested Party and, to the extent not
incompatible with such law, in accordance with any requirements specified in
the request.
2. The Requested Party shall inform the Requesting Party
promptly of any circumstances which are likely to cause a significant delay in
responding to the request.
3. The Requested Party shall inform the Requesting
Party promptly 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.
4.
The Requesting Party shall inform the Requested Party promptly 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 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 interest;
- (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;
- (c)
- the request concerns restraint or confiscation of proceeds or instruments
of a criminal activity which, had it occurred within the jurisdiction of the
Requested Party, would not have been an activity in respect of which a
confiscation order could have been made;
- (d)
- the request relates to an offence in respect of which the person has been
finally acquitted, pardoned, or made the subject of an amnesty; or
- (e)
- the request relates to a confiscation order which has been satisfied.
2. 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
conditions, it shall comply with them.
Article 7
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 except
to the extent that disclosure is necessary to execute the request. 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 proceedings 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 8
Information and evidence
1. The
Parties may make requests for information and evidence for the purpose of
identifying proceeds or instruments of crime which may become liable to
restraint or confiscation. Any documents or other material supporting a
request which involves the exercise of compulsory powers by the Requested
Party shall, to the extent required by the Requested Party, be authenticated
in accordance with Article 12.
2. Assistance which may be given under this
Article includes but is not limited to: - (a)
- providing information and
documents or copies thereof;
- (b)
- taking evidence or statements of witnesses or other persons and producing
documents, records, or other material for transmission to the Requesting
Party;
- (c)
- searching for, seizing and delivering to the Requesting Party any relevant
material, and providing 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. 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.
4. Where required by the Requested Party, the Requesting
Party shall return material provided under this Article when no longer needed
for the purpose for which it was supplied.
Article 9
Restraint
1. In
accordance with the provisions of this Article, a Party may request the
restraint of property in the territory of the Requested Party in order to
ensure that it is available for the purpose of enforcement of a confiscation
order which has been or may be made.
2. A request made under this Article
shall include:
(a) (i) in the case of a request from the United Kingdom, a
certificate stating that an information has been laid before a justice of the
peace, or a person has been charged with an offence, or a bill of indictment
has been preferred, or a petition warrant has been granted, or that one of
these measures is to be taken and, if so, when;
(ii) in the case of a request
from Australia, a certificate stating that an information or a complaint has
been laid before a justice of the peace or a magistrate, or a person has been
charged with an offence, or an indictment or a presentment has been preferred,
or that one of these measures is to be taken and, if so, when;
(b) either:
(i) a summary of the facts of the case including a description of the offence,
the time and place of its commission, a reference to the relevant legal
provisions, the grounds on which the suspicion is based and an authenticated
copy of any relevant restraint order; or
(ii) where a confiscation order has
been made, an authenticated copy of that order;
(c) to the extent possible, a
description of the property in respect of which restraint is sought or which
is believed to be available for restraint, and its connection with the person
against whom the proceedings have been or are to be instituted;
(d) where
appropriate, a statement of the amount which it is desired to restrain and the
grounds on which this amount is estimated; and
(e) where applicable, an
estimate of the time expected to elapse before a final judgement may be given.
3. The Requesting Party shall advise the Requested Party of any alteration in
an estimate of time referred to in paragraph 2(e) above and in doing so shall
also give information about the stage of proceedings reached. Each Party shall
advise the other promptly of any appeal or variation made in respect of
restraint action requested or taken.
Article 10
Enforcement of confiscation
orders
1. This Article applies to an order, made by a court of the Requesting
Party, intended to recover the proceeds or instruments of crime.
2. A request
for assistance in enforcing such an order shall be accompanied by an
authenticated copy of the order, and shall contain information indicating:
- (a)
- that neither the order nor any conviction to which it relates is subject
to appeal;
- (b)
- that the order is enforceable in the territory of the Requesting Party;
- (c)
- where appropriate, property available for enforcement or the property in
respect of which assistance is sought, stating the relationship between that
property and the person against whom the order has been made;
- (d)
- where appropriate, and where known, the interests in the property of any
person other than the person against whom the order has been made; and
- (e)
- where appropriate, the amount which it is desired to realise as a result
of such assistance.
3. Where the law of the Requested Party does not permit effect to be given to
a request in full, the Requested Party shall give effect to it insofar as it
is able to do so.
4. If a request under this Article relates to an amount of
money, that amount shall be converted into the currency of the Requested Party
in accordance with its domestic law and procedures.
5. Property obtained by
the Requested Party in the enforcement of an order to which this Article
applies shall remain with that Party, unless otherwise mutually decided by the
Parties.
Article 11
Costs
The Requested Party shall bear any costs arising
within its territory as a result of action taken upon request of the
Requesting Party. Extraordinary costs may be subject to a special arrangement
between the Parties.
Article 12
Authentication
1. A document is
authenticated for the purposes of this Agreement 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 State of the Party sending the
document or of a minister of state or department or officer of that Party.
2. Any documents or other material supplied in response to a request for
assistance shall, to the extent requested by the Requesting Party, be
authenticated in accordance with paragraph 1.
Article 13
Consultation
The
Parties shall consult promptly, at the request of either, concerning the
interpretation and the application of this Agreement either generally or in
relation to a particular case.
Article 14
Territorial application in
relation to the United Kingdom
This Agreement shall apply, in relation to the
United Kingdom: - (a)
- to England and Wales, Scotland and Northern Ireland; and
- (b)
- to any territory for the international relations of which the United
Kingdom is responsible and to which this Agreement shall have been extended,
subject to any modifications agreed, by agreement between the Parties. Such
extension may be terminated by either Party by giving 180 days' written notice
to the other through the diplomatic channel.
Article 15
Treaty of 1988
The Treaty between the Government of the United
Kingdom of Great Britain and Northern Ireland and the Government of Australia
concerning the Investigation of Drug Trafficking and Confiscation of the
Proceeds of Drug Trafficking done at Canberra on the third day of August 1988
("the Treaty") shall terminate upon the entry into force of this Agreement
except in respect of requests under the Treaty which have been made prior to
the entry into force of this Agreement.
Article 16
Final provisions
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
Agreement have been completed. The Agreement shall enter into force 30 days
after the later of these notifications.
2. This Agreement shall apply to a
request made pursuant to it whether or not the criminal activity to which the
request relates occurred prior to the Agreement entering into force.
3.
Either Party may terminate this Agreement 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 Agreement.
DONE in duplicate at Canberra this
sixth day of February, 1997.
FOR THE GOVERNMENT OF AUSTRALIA:
Daryl
Williams
| FOR THE GOVERNMENT OF THE UNITED KINGDOM OF GREAT BRITAIN AND
NORTHERN IRELAND:
Roger J. Carrick
|
1. Made by the Governor-General on 8 December 1999, and notified in the
Commonwealth of Australia Gazette on 15 December 1999.