Commonwealth Numbered Regulations

1992 No. 167 MUTUAL ASSISTANCE IN CRIMINAL MATTERS (UNITED MEXICAN STATES) REGULATIONS - SCHEDULE 1

                           SCHEDULE               Regulation 3

TREATY BETWEEN AUSTRALIA
AND THE UNITED MEXICAN STATES
ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS AUSTRALIA AND THE UNITED
MEXICAN STATES, DESIRING to extend to each other the widest possible measure
of co-operation to combat crime, HAVE AGREED as follows:
ARTICLE 1
Scope of the Treaty 1. The Parties shall co-operate with each other by taking
all appropriate measures that they have legal authority to take in order to
provide mutual assistance in criminal matters, in accordance with the terms of
this Treaty and subject to the limitations of their respective domestic legal
provisions. Such assistance shall deal with the prevention, investigation and
prosecution of offences or any other criminal proceedings arising from acts
which are within the competence or jurisdiction of the Requesting Party at the
time the assistance is requested. 2. Criminal matters include matters
connected with offences against a law relating to taxation, customs duties,
foreign exchange control and other revenue matters. 3. This Treaty does not
empower one Party's authorities to undertake, in the territorial jurisdiction
of the other, the exercise and performance of the functions or authority
exclusively entrusted to the authorities of that other Party by its national
laws or regulations. 4. Subject to the provisions of paragraph 1 of this
Article, requests for assistance under this Treaty will be executed, except
that the Requested Party may deny a request to the extent that:

   (a)  the execution of the request would require the Requested Party to
        exceed its legal authority or would otherwise be prohibited by the
        legal provisions in force in the Requested State, in which case the
        Central Authorities referred to in Article 3 of this Treaty shall
        consult with each other to identify alternative lawful means for
        securing assistance;

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

   (c)  the Requested Party regards the request as concerning an offence which
        is political or of a political character;

   (d)  the request relates to military offences, except those which
        constitute offences under ordinary criminal law;

   (e)  the request does not comply with the provisions of this Treaty; or

   (f)  its laws otherwise permit such denial. 5. In conformity with this
        Article and in accordance with the other provisions of this Treaty,
        such assistance will include:

   (a)  the taking of testimony or statements of persons;

   (b)  the provision of documents, records and evidence;

   (c)  search and seizure;

   (d)  the legal execution of requests for the taking of measures to locate,
        restrain, or forfeit assets as ordered by the competent authorities of
        the Requested Party in accordance with its constitutional and other
        legal provisions;

   (e)  making detained persons and others available to give evidence or
        assist investigations;

   (f)  serving documents;

   (g)  locating or identifying persons;

   (h)  exchanging information; and

   (i)  other forms of assistance mutually agreed by the Parties, in
        conformity with the object and purpose of this Treaty.
ARTICLE 2
Other Assistance This Treaty shall not derogate from obligations subsisting
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 or otherwise.
ARTICLE 3
Central Authorities 1. With the purpose of ensuring due co-operation between
the Parties in providing to each other mutual assistance which falls within
the scope of this Treaty, Australia designates as its Central Authority the
Attorney-General's Department, Canberra and the United Mexican States
designates as its Central Authority its Procuraduria General de la Republica.
The Central Authority of the Requested Party shall promptly comply with
requests or, when appropriate, shall transmit them to other competent
authorities to do so. The competent authorities of the Requested Party shall
take all necessary measures to promptly execute the requests in accordance
with Article 1. 2. The Central Authorities shall consult regularly with each
other in order to secure the most effective implementation of this Treaty and
to anticipate and resolve problems that may arise in its application.
ARTICLE 4
Limitations on Assistance 1. Before refusing the execution of any request
pursuant to this Treaty, the Central Authority of the Requested Party shall
determine whether there are conditions whose satisfaction would make possible
the rendering of assistance. If the Requesting Party accepts the assistance
subject to those conditions, it shall comply with them. 2. The Central
Authority of the Requested Party shall promptly inform that of the Requesting
Party of the reason for denying the execution of the request.
ARTICLE 5
Contents of Requests 1. Requests for assistance shall include:

   (a)  the purpose of the request and a description of the assistance sought;

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

   (c)  a description of the nature of the criminal matter including a
        statement of the relevant laws;

   (d)  except in cases of a request for service of documents or exchange of
        information, a description of the acts or omissions or matters alleged
        to constitute the offence;

   (e)  the court order, if any, sought to be enforced and a statement to the
        effect that it is a final order;

   (f)  details of any particular procedure or requirement that the Requesting
        Party wishes to be followed, including a statement as to whether sworn
        or affirmed evidence or statements are required;

   (g)  the requirements, if any, of confidentiality and the reasons therefor;
        and

   (h)  specification of any time limit within which compliance with the
        request is desired. 2. Requests for assistance, to the extent
        necessary and insofar as possible, shall also include:

   (a)  the identity, nationality and location of the person or persons who
        are the subject of, or who may have information relevant to, the
        investigation or proceeding;

   (b)  a description of the information, statement or evidence sought;

   (c)  a description of the 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

   (d)  information as to the allowances and expenses to which a person
        appearing in the Requesting State will be entitled. 3. Requests,
        supporting documents and other communications made pursuant to this
        Treaty shall be in the language of the Requesting State and
        accompanied by a translation into the language of the Requested State.
        4. If the Requested Party considers that the information contained in
        the request is not sufficient in accordance with this Treaty to enable
        the request to be dealt with, it may request additional information.
ARTICLE 6
Execution of Requests 1. Requests for assistance shall be carried out in
accordance with the law of the Requested Party and, insofar as it is not
incompatible with that law, in the manner requested by the Requesting Party.
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 the Requested State. The Requested Party shall, upon request, provide
certified copies of documents. 3. The Requested Party shall promptly inform
the Requesting Party of circumstances, when they become known to the Requested
Party, which are likely to cause a significant delay in responding to the
request.
ARTICLE 7
Return of Material to Requested Party Where required by the Requested Party,
the Requesting Party shall return the material provided under this Treaty when
no longer needed for the relevant investigation or proceedings.
ARTICLE 8
Protecting Confidentiality and Restricting Use of
Evidence and Information 1. The Requested Party shall keep the application for
assistance, the contents of a request and its supporting documents, and the
fact of granting such assistance, confidential. If the request cannot be
executed without breaching confidentiality, the Requested Party shall so
inform the Requesting Party which shall then determine whether the request
should nevertheless be executed. 2. The Requesting Party shall keep
confidential information and evidence provided by the Requested Party, except
to the extent that the evidence and information is needed for the
investigation and proceedings described in the request. 3. The Requesting
Party shall not use information or evidence obtained, nor anything derived
from either, for purposes other than those stated in the request without the
prior consent of the Requested Party.
ARTICLE 9
Service of Documents 1. The Requested Party shall effect service of documents
which are transmitted to it for this purpose by the Requesting Party. 2. A
request to effect service of a document requiring the appearance of a person
shall be made to the Requested Party not less than 45 days before the date on
which the appearance is required. In urgent cases, the Requested Party may
waive this requirement. 3. The Requested Party may effect service of any
document by mail or, if the Requesting Party so requests, in any other manner
required by the law of the Requesting Party which is not inconsistent with the
law of the Requested Party. 4. The Requested Party shall forward to the
Requesting Party proof of service of the documents. If service cannot be
effected, the Requesting Party shall be so informed and advised of the
reasons.
ARTICLE 10
Taking of Evidence 1. When a request is made for the purpose of a proceeding
in relation to a criminal matter in the Requesting State, the Requested Party
shall take the evidence of witnesses for transmission to the Requesting Party.
2. For the purposes of this Treaty, the giving or taking of evidence shall
include the production of documents, records or other material. 3. For the
purposes of requests under this Article the Requesting Party shall specify the
subject matter about which persons are to be examined, including any questions
to be put. 4. The Parties to the relevant proceedings in the Requesting State,
their legal representatives and representatives of the Requesting Party may,
subject to the laws of the Requested Party, attend the proceedings. 5. A
person who is required to give evidence in the Requested State under this
Article may decline to give evidence where the law of the Requested Party
permits that witness to decline to give evidence in similar circumstances in
proceedings originating in the Requested State. 6. Any claim of immunity,
incapacity or privilege under the laws of the Requesting Party shall be
decided by the competent authorities of the Requesting Party.
ARTICLE 11
Obtaining of Statements of Persons 1. The Requested Party shall, upon request,
endeavour to obtain statements of persons for the purposes of an investigation
or proceeding in relation to a criminal matter in the Requesting State. 2. For
the purposes of requests under this Article the Requesting Party shall specify
the subject matter about which it seeks statements from persons including any
questions which it seeks to be put to the person.
ARTICLE 12
Availability of Persons in Custody to Give Evidence
or to Assist Investigations 1. A person in custody in the Requested State may,
at the request of the Requesting Party, be temporarily transferred to the
Requesting State to assist investigations or to give evidence. 2. The
Requested Party shall not transfer a person in custody to the Requesting State
unless the person consents to that transfer. 3. While the person transferred
is required to be held in custody under the law of the Requested Party, the
Requesting Party shall hold that person in custody and shall return that
person in custody to the Requested State at the conclusion of the matter in
relation to which transfer is sought under paragraph 1 of this Article or at
such earlier time as the person's presence is no longer required. 4. When the
Requested Party advises the Requesting Party that the transferred person is no
longer required to be held in custody, that person shall be set at liberty and
be treated as a person referred to in Article 13.
ARTICLE 13
Availability of Other Persons to Give Evidence or
Assist Investigations 1. The Requesting Party may request the assistance of
the Requested Party in seeking a person's consent to:

   (a)  appear as a witness in proceedings in relation to a criminal matter in
        the Requesting State unless that person is the person charged; or

   (b)  assist investigations in relation to a criminal matter in the
        Requesting State. 2. The Requested Party shall, if satisfied that
        satisfactory arrangements for that person's security will be made by
        the Requesting Party, request the person to consent to appear as a
        witness in proceedings or to assist in investigations.
ARTICLE 14
Safe Conduct 1. Subject to paragraph 2, where a person is in the Requesting
State pursuant to a request made under Articles 12 or 13:

   (a)  that person shall not be detained, prosecuted or punished in the
        Requesting State, for any offence, nor be subject to any civil suit,
        being
a civil suit to which the person could not be subjected if the person were not
in the Requesting State, in respect of any act or omission which preceded the
person's departure from the Requested State; and

   (b)  that person shall not, without that person's consent, be required to
        give evidence in any proceedings or to assist any investigation other
        than the proceedings or investigation to which the request relates. 2.
        Paragraph 1 of this Article shall cease to apply if that person, being
        free to leave, has not left the Requesting State within a period of 30
        days after that person has been officially notified that that person's
        presence is no longer required or, having left, has returned. 3. A
        person appearing in the Requesting State pursuant to a request made
        under Articles 12 or 13 shall be subject to the law of that State
        relating to contempt, perjury and the making of false declarations. 4.
        A person who does not consent to a request pursuant to Articles 12 or
        13 shall not, by reason thereof, be liable to any penalty or be
        subjected to any coercive measure notwithstanding any contrary
        statement in the request or in any document accompanying the request.
ARTICLE 15
Provision of Publicly Available and Official Documents 1. The Requested Party
shall provide copies of documents and records that are open to public access
as part of a public register or otherwise, or that are available for purchase
by the public. 2. If the legal provisions of the Requested Party do not
prohibit it, the Requested Party may provide any record or information in the
possession of a government office or agency, but not publicly available, to
the same extent and under the same conditions as it would be available to its
own law enforcement or judicial authorities.
ARTICLE 16
Certification and Authentication 1. Documents or materials supporting a
request for assistance involving the use of compulsory measures or the
forfeiture of proceeds or instrumentalities of crime shall be authenticated in
accordance with paragraphs 2 or 3 of this Article. Documents or materials
furnished in response to a request shall be similarly authenticated if
requested. 2. Documents and materials to be used in Australia are
authenticated for the purposes of this Treaty if:

   (a)  they purport to be certified by a competent authority under United
        Mexican States law; and

   (b)  they purport to be sealed with an official seal of the United Mexican
        States. 3. Documents and material to be used in the United Mexican
        States are authenticated for the purposes of this Treaty if:

   (a)  they are certified by a competent authority under Australian law; and

   (b)  they are legalised by the Australian Department of Foreign Affairs and
        Trade and by the Mexican diplomatic or consular representative duly
        accredited to Australia.
ARTICLE 17
Search and Seizure 1. The Requested Party shall, insofar as its law permits,
carry out requests for search and seizure and delivery of material to the
Requesting Party provided the information supplied, including additional
information requested pursuant to paragraph 4 of Article 5, if any, would
justify such action under the law of the Requested Party. 2. The Requested
Party shall provide such information as may be required by the Requesting
Party concerning the result of any search, the place of seizure, the
circumstances of seizure and the subsequent custody of the material seized. 3.
The Requesting Party shall observe any conditions imposed by the Requested
Party in relation to any seized material which is delivered to the Requesting
Party.
ARTICLE 18
Proceeds of Crime 1. The Requested Party shall, upon request, endeavour to
ascertain whether any proceeds or instrumentalities of a crime are located
within its jurisdiction and shall notify the Requesting Party of the results
of its inquiries. In making the request, the Requesting Party shall notify the
Requested Party of the reasons for its belief that such proceeds or
instrumentalities may be located in its jurisdiction. 2. Where pursuant to
paragraph 1 suspected proceeds or instrumentalities of crime are found, the
Requested Party shall take such measures as are permitted by its law to
prevent any dealing in, transfer or disposal of those suspected proceeds or
instrumentalities of crime pending a final determination in respect of those
proceeds or instrumentalities by a court of the Requesting Party. 3. The
Requested Party shall, to the extent permitted by its law, give effect to a
final order forfeiting or confiscating the proceeds or instrumentalities of
crime made by a court of the Requesting Party. 4. In the application of this
Article, the rights of bona fide third parties shall be respected under the
law of the Requested Party. 5. The Requested Party shall retain the property
referred to in paragraph 3. 6. In this Article "proceeds of crime" means any
property suspected, or found by a court, to be property derived or realised,
directly or indirectly, as a result of the commission of an offence or to
represent the value of property and other benefits derived from the commission
of an offence.
ARTICLE 19
Subsidiary Arrangements The Central Authority of each Party may enter into
subsidiary arrangements consistent with the object and purpose of this Treaty
and with the laws of both Parties.
ARTICLE 20
Representation and Expenses 1. Unless otherwise provided in this Treaty, the
Requested Party shall make all necessary arrangements for the representation
of the Requesting Party in any proceedings arising out of a request for
assistance and shall otherwise represent the interests of the Requesting
Party. 2. The Requested Party shall meet the cost of fulfilling the request
for assistance except that the Requesting Party shall bear:

   (a)  the expenses associated with conveying any person to or from the
        territory of the Requested State and any fees, allowances or expenses
        payable to that person whilst in the Requesting State pursuant to a
        request under Articles 12 or 13;

   (b)  the expenses associated with conveying custodial or escorting
        officers; and

   (c)  where required by the Requested Party, exceptional expenses in
        fulfilling the request.
ARTICLE 21
Consultation The Parties shall consult promptly, at the request of either,
concerning the interpretation or the application of this Treaty either
generally or in relation to a particular case.
ARTICLE 22
Entry into Force and Termination 1. This Treaty shall enter into force on the
date on which the Parties have notified each other in writing through the
diplomatic channel that their respective domestic requirements for the entry
into force of this Treaty have been complied with. 2. This Treaty shall apply
to requests whether or not the relevant acts or omissions occurred prior to
this Treaty entering into force. 3. Either Party may terminate this Treaty by
notice in writing through the diplomatic channel at any time and it shall
cease to be in force on the one hundred and eightieth day after the day on
which notice is given. In witness whereof the undersigned, being duly
authorised thereto by their respective Governments, have signed this Treaty.
Done at GUADALAJARA on the SIXTH day of MAY One thousand nine hundred and
ninety-one in English and Spanish, both texts being equally authentic.
FOR AUSTRALIA                 FOR THE UNITED MEXICAN STATES

NEAL BLEWETT                  FERNANDO SOLANA