Commonwealth Numbered Regulations

1990 No. 311 MUTUAL ASSISTANCE IN CRIMINAL MATTERS (REPUBLIC OF AUSTRIA) REGULATIONS - SCHEDULE

SCHEDULE
Regulation 4
TREATY BETWEEN AUSTRALIA AND THE REPUBLIC OF AUSTRIA
ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS
Australia and the Republic of Austria, DESIRING to extend to each other the
widest measure of co-operation to combat crime, HAVE AGREED as follows:
ARTICLE 1
SCOPE OF APPLICATION 1. The Contracting States undertake to afford each other,
in accordance with the provisions of this Treaty, the widest measure of mutual
assistance in investigations and proceedings in respect of offences the
punishment of which at the time of the request for assistance falls within the
jurisdiction of the judicial authorities of the Requesting State. 2. Mutual
assistance shall include the:

   (a)  obtaining of evidence of accused persons, witnesses or experts;

   (b)  production, search and seizure of property, records and documents ;

   (c)  location, freezing and confiscation of proceeds and profits of of
        fences;

   (d)  making persons available to assist in investigations or to give
        evidence;

   (e)  service of documents; and

   (f)  other assistance consistent with the objects of this Treaty mutua lly
        acceptable to the Contracting States. 3. Unless provided otherwise by
        its law and except for the service of documents, the Requested State
        shall not afford assistance in respect of an offence which would not
        be punishable by its judicial authorities if the offence had been
        committed in that State.
ARTICLE 2
FISCAL OFFENCES 1. Mutual assistance in fiscal offences shall not be refused
on the ground that the law of the Requested State does not impose the same
kind of tax or duty or does not contain tax, duty, customs or exchange
regulations of the same kind as the law of the Requesting State. 2.
Information received by way of mutual assistance in fiscal offences shall be
used only in the criminal proceedings for which mutual assistance was
requested and directly related proceedings in respect of offences connected
with tax, duty customs or exchange regulations. Any further use shall require
the consent of the Requested State.
ARTICLE 3
GROUNDS FOR REFUSAL 1. Assistance may be refused if:

   (a)  the request concerns an offence which the Requested State considers a
        political offence or an offence only under military law;

   (b)  the request relates to an offence in respect of which the offender has
been finally acquitted or pardoned or has served th sentence imposed;   (c)

the Requested State considers that execution of the request is        to
prejudice its sovereignty, security, public order or other essential
interests;

   (d)  there are substantial grounds for believing that the request for
        assistance has been made to facilitate the prosecution of a person on
account of the person's race, sex, religion, nationality, association wit
person's race, sex, religion, nationality, association with a particular
ethnic group or political opinions or that that person's position may be
prejudiced for any of those reasons; or

   (e)  the assistance requested relates to an offence which is committed
        outside the territory of the Requesting State and the law of the
Requested State would not provide for the punishment of an offence
committed outside its territory in similar circumstances. 2. For the purposes
of sub-paragraph (c) of paragraph 1 the Requested State may include in its
consideration of essential interests whether the provision of assistance could
prejudice an investigation or proceeding in that State, prejudice the safety
of any person or impose an excessive burden on the resources of that State.
ARTICLE 4
MAKING AND TRANSMISSION OF REQUESTS 1. Authorities authorized to make requests
for assistance are, in the case of Australia, courts, prosecutors and
authorities responsible for investigations and prosecutions related to
criminal matters; in the case of the Republic of Austria courts and
prosecutors. 2. Requests for assistance shall be transmitted through the
Federal Attorney-General's Department in Australia and the Federal Ministry of
Ministry of Justice in Austria and shall be returned through the same channel.
3. In cases of urgency, requests for assistance may be transmitted through the
International Criminal Police Organisation (INTERPOL).
ARTICLE 5
CONTENTS OF REQUESTS 1. A request for assistance shall include:

   (a)  the authority making the request;

   (b)  the object of and the reason for the request;

   (c)  where possible, the identity and the nationality of the person
        concerned;

   (d)  where necessary, the name and address of the person to be served;

   (e)  the nature of the offence and a summary of the facts;

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

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

   (h)  such other information as is necessary for the proper carrying out of
        the request. 2. The request as well as any supporting documents shall
        be accompained by a translation into the language of the Requested
        State. 3. If the Requested State considers that the information
        contained in the request is not sufficient in accordance with this
        Treaty to enable the request to be dealt with, that State may request
        that additional information be furnished.
ARTICLE 6
CARRYING OUT OF REQUESTS 1. The Requested State shall apply its law in
carrying out requests for assistance. As far as its law permits, the Requested
State shall carry out the request in the manner specified therein.
2. The Requested State may delay the handing over of any property,      ds or
records or documents if it requires the said property, records or documents
for pending criminal or civil proceedings. In such a case the Requested State
shall, upon request, provide certified copies. 3. Any property, original
records or documents furnished in execution of the request shall be turned by
the Requesting State to the Requested State as soon as possible unless the
Requested State waives the return thereof. as possible unless the Requested
State waives the return 4. Reasons shall be given promptly for refusal of, or
delay in, assistance. 5. If necessary, the Requested State may make the
granting of assistance dependent on conditions. The Requesting State shall
comply with such conditions. 6. On the request of the Requesting State, the
Requested State shall advise the date and place of execution of the request
for assistance. Officials Officials and interested persons may be present if
the Requested State consents.,
ARTICLE 7
CERTIFICATION
Documents or records transmitted pursuant to this Treaty shall not require any
form of certification unless so requested by the Requesting State. In such
cases, and subject to the law of the Requested State, the certification shall
be in the form requested by the Requesting State.
ARTICLE 8
APPEARANCE OF PERSONS IN CUSTODY 1. A person in custody may, with his or her
consent, be temporarily transferred from the Requested State to the Requesting
State to give evidence or to assist in investigations. 2. Compliance with the
request may be delayed if the continued presence of the person in custody in
the Requested State is necessary for the purpose of an investigation or
proceeding in that State. 3. The person temporarily transferred shall be held
in custody and returned as soon as the person's presence is no longer
required. 4. Where the custody of a person expires during the period of
transfer the transferred person shall be released and entitled to such
expenses, including return travel costs, as a person referred to in Article 9.
ARTICLE 9
APPEARANCE OF OTHER PERSONS 1. Any person in the Requested State may be
summoned to be heard in criminal proceedings in the Requesting State or
requested to assist in investigations in that State. 2. The Requested State
shall invite the person named in the summons or request to comply with it and
shall inform the Requesting State of the person's answer. 3. A person named in
a summons or request may require the Requesting State to advance money to
cover travelling and related expenses.
ARTICLE 10
SAFE CONDUCT 1. A person made available to give evidence in proceedings or to
assist in investigations in the Requesting State shall not be detained,
prosecuted or punished in the Requesting State, or 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 that person's departure from the Requested State. That person
shall not be required to give evidence in any legal proceeding other than the
proceeding to which the request relates. 2. Paragraph 1 of this Article shall
cease to apply if that person, not being detained as a prisoner transferred
under Article 8, has not left the Requesting State within the period of thirty
days after the person has either given evidence or has been officially
notified that his or her appearance is no longer required. 3. The evidence
given by a person made available to give evidence in proceedings in the
Requesting State shall be inadmissible or otherwise disqualified from use in
the prosecution of that person for an offence against a law of the Requesting
State other than the offence of perjury in relation to the giving of that
evidence. 4. A person who does not answer a summons to appear as a witness or
expert shall not by reason thereof be liable to any penalty or be subjected to
any coercive measures notwithstanding any contrary statement in the summons.
ARTICLE 11
EARCH AND SEIZURE AND PROCEEDS OF CRIME
The Requested State shall, subject to its law, carry out requests for search
and seizure of property, records or documents relating to an offence as well
as requests for the location, freezing or confiscation of the proceeds or
profits of offences.
ARTICLE 12
EXPENSES
The Requested State shall meet the cost of fulfilling the request for
assistance except that the Requesting State shall bear:

   (a)  the fees, allowances and expenses relating to the travel of persons
        pursuant to Article 9, and expenses relating to the conveying and
        custody prisoners pursuant to Article 8;

   (b)  the allowances and expenses incurred in conveying custodial or
        escorting officers;

   (c)  the expenses associated with experts; and

   (d)  where required by the Requested State, exceptional expenses in
        fulfilling the request for which the authorities of that State are
        liable to third p ARTICLE 13
ENTRY INTO FORCE AND TERMINATION 1. This Treaty shall enter into force on the
first day of the third month following the month in which the Contracting
States have notified each other in writing through the diplomatic channel that
their respective requirements for entry into force have been fulfilled. 2.
This Treaty shall apply to requests whether or not the relevant offences
occurred prior to the entry into force of this Treaty. 3. Either Contracting
State may terminate this Treaty by notice in writing at any time and it shall
cease to be in force on the first day of the third month following the month
in which notice is given. IN WITNESS WHEREOF the undersigned, being duly
authorised thereto by the thereto by their respective Governments, have signed
this Treaty. DONE in duplicate at Vienna on the 20th day of October One
thousand nine hundred and eighty-eight in the English and German languages,
both texts both texts being equally authentic.
For Australia:                        For the Republic of Austria:

Lionel Bowen                          Egmont Foregger