Commonwealth Numbered Regulations

MUTUAL ASSISTANCE IN CRIMINAL MATTERS (REPUBLIC OF INDONESIA) REGULATIONS 1999 1999 No. 50 - SCHEDULE

Schedule 1 Mutual Assistance Treaty (regulation 3) Treaty BETWEEN AUSTRALIA
AND THE REPUBLIC OF INDONESIA ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS

AUSTRALIA AND THE REPUBLIC OF INDONESIA,

DESIRING to extend to each other the widest measure of cooperation to combat
crime,

HAVE AGREED as follows:

Article 1
Scope of application

1. The Contracting Parties shall, in accordance with this Treaty, grant to
each other assistance in investigations or proceedings in respect of criminal
matters.

2. Criminal matters include matters connected with offences which are listed
in the Annex to this Treaty.

3. Assistance may also be granted at the discretion of the Requested State for
any other act or omission constituting an offence if the offence, according to
the laws of both Contracting States, is one for which mutual assistance can be
granted.

4. Such assistance shall consist of:

   (a)  taking of evidence and obtaining of statements of persons including
        the execution of letters rogatory;

   (b)  provision of documents and other records;

   (c)  location and identification of persons;

   (d)  execution of requests for search and seizure;

   (e)  measures to locate, restrain and forfeit the proceeds of crime;

   (f)  seeking the consent of persons to be available to give evidence or to
        assist in investigations in the Requesting State, and where such
        persons are in custody arranging for their temporary transfer to that
        State;

   (g)  service of documents; and

   (h)  other assistance consistent with the objects of this Treaty which is
        not inconsistent with the law of the Requested State.

5. Assistance shall not include:

   (a)  the extradition of any person;

   (b)  the execution in the Requested State of criminal judgements imposed in
        the Requesting State except to the extent permitted by the law of the
        Requested State and this Treaty; and

   (c)  the transfer of persons in custody to serve sentences.

Article 2
Other assistance

This Treaty shall not derogate from obligations subsisting between the
Contracting Parties whether pursuant to other Treaties or arrangements or
otherwise nor prevent the Contracting Parties providing assistance to each
other pursuant to other Treaties or arrangements or otherwise.

Article 3
Central Office

1. The Contracting Parties shall each appoint a Central Office to transmit and
receive requests for the purpose of this Treaty. The Central Office of
Australia shall be the Attorney-General's Department, Canberra and the Central
Office of the Republic of Indonesia shall be the Ministry of Justice of the
Republic of Indonesia, Jakarta. Either State shall notify the other of any
change of its Central Office.

2. Requests for assistance shall be made through the Central Offices which
shall arrange for the prompt carrying out of such requests.

Article 4
Refusal of assistance

1. Assistance shall be refused if:

   (a)  the request relates to the prosecution or punishment of a person for
        an offence that is regarded by the Requested State as:

   (i)  an offence of a political character except the murder, or attempted
        murder, of the Head of State or members of his or her family; or

   (ii) an offence under military law of the Requested State which is not also
        an offence under the ordinary criminal law of the Requested State;

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

   (c)  The request relates to the prosecution or punishment of a person for
        an offence which, had it been committed in the Requested State, could
        no longer be prosecuted by reason of lapse of time, the death of the
        alleged offender, double jeopardy or could no longer be prosecuted for
        any other reason;

   (d)  there are substantial grounds for believing that the request for
        assistance has been made merely for the purpose of prosecuting or
        punishing that person on account of that person's race, sex, religion,
        nationality or political opinions or that that person's position may
        be prejudiced for any of these reasons; or

   (e)  the Requested State is of the opinion that the request, if granted,
        would prejudice its sovereignty, security, national interest or other
        essential interests.

2. Assistance may be refused if:

   (a)  the request relates to the prosecution or punishment of a person for
        an offence where the acts or omissions alleged to constitute that
        offence would not, if they had taken place within the jurisdiction of
        the Requested State, have constituted an offence;

   (b)  the request relates to the prosecution or punishment of a person for
        an offence which is committed outside the territory of the Requesting
        State and the law of the Requested State does not provide for the
        punishment of an offence committed outside its territory in similar
        circumstances;

   (c)  provision of the assistance sought could prejudice an investigation or
        proceeding in the Requested State, prejudice the safety of any person
        or impose an excessive burden on the resources of that State; or

   (d)  the request relates to the prosecution or punishment of a person for
        an offence in respect of which the death penalty may be imposed or
        carried out.

3. Before refusing to grant a request for assistance the Requested State shall
consider whether assistance may be granted subject to such conditions as it
deems necessary. If the Requesting State accepts assistance subject to
conditions it shall comply with those conditions.

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
        proceeding 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 requests for service of documents, 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
        State 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 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, 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 State and, insofar as it is not incompatible with that law, in
the manner requested by the Requesting State.

2. The Requested State may postpone the delivery of material requested if such
material is required for proceedings in respect of criminal or civil matters
in that State. The Requested State shall, upon request, provide certified
copies of documents.

3. The Requested State shall promptly inform the Requesting State of
circumstances, when they become known to the Requested State, which are likely
to cause a significant delay in responding to the request.

4. The Requested State shall promptly inform the Requesting State of a
decision of the Requested State not to comply in whole or in part with a
request for assistance and the reason for that decision.

Article 7
Return of material to Requested State

Where required by the Requested State, the Requesting State shall return the
material provided under this Treaty when no longer needed for the relevant
investigation or proceeding.

Article 8
Protecting confidentiality and restricting use of
evidence and information

1. The Requested State, if so requested, shall keep the application for
assistance, the contents of a request and its supporting documents, and the
fact of granting of such assistance, confidential. If the request cannot be
executed without breaching confidentiality, the Requested State shall so
inform the Requesting State which shall then determine whether the request
should nevertheless be executed.

2. The Requesting State, if so requested, shall keep confidential information
and evidence provided by the Requested State, except to the extent that the
evidence and information is needed for the investigation and proceeding
described in the request.

3. The Requesting State shall not use information or evidence obtained, nor
anything derived from either, for purposes other than those stated in a
request without the prior consent of the Requested State.
Article 9
Service of documents

1. The Requested State shall effect service of documents which are transmitted
to it for this purpose by the Requesting State.

2. A request to effect service of a document requiring the appearance of a
person shall be made to the Requested State not less than forty five days
before the date on which the appearance is required. In urgent cases, the
Requested State may waive this requirement.

3. The Requested State may effect service of any document by mail or, if the
Requesting State so requests, in any other manner required by the law of the
Requesting State which is not inconsistent with the law of the Requested
State.

4. The Requested State shall forward to the Requesting State proof of service
of the document. If service cannot be effected, the Requesting State shall be
so informed and advised of the reasons.

Article 10
Taking of evidence

1. Where a request is made for the purpose of a proceeding in relation to a
criminal matter in the Requesting State the Requested State shall, upon
request, take the evidence of witnesses for transmission to the Requesting
State.

2. For the purposes of this Treaty, the giving or taking of evidence shall
include the production of documents, records or other materials.

3. For the purposes of requests under this Article the Requesting State 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 State may, subject
to the law of the Requested State, appear and question the person being
examined.

5. A person who is required to give evidence in the Requested State under this
Article may decline to give evidence where either:

   (a)  the law of the Requested State permits that witness to decline to give
        evidence in similar circumstances in proceedings originating in the
        Requested State; or

   (b)  where the law of the Requesting State permits that witness to decline
        to give evidence in such proceedings in the Requesting State.

6. If any person claims that there is a right to decline to give evidence
under the law of the Requesting State, the Central Office of that State shall,
upon request, provide a certificate to the Central Office of the Requested
State as to the existence of that right. In the absence of evidence to the
contrary, the certificate shall provide sufficient evidence as to the
existence of that right.

Article 11
Obtaining of statements of persons

1. The Requested State shall, upon request, endeavour to obtain statements of
persons for the purpose 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 State 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 State, be temporarily transferred to the Requesting State to assist
investigations or to give evidence.

2. The Requested State 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 State, the Requesting State 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 was sought under
paragraph 1 of this Article or at such earlier time as the person's presence
is no longer required.

4. The Requesting State may request the extension of the period stated in
paragraph 3 of this Article if it still needs the presence of the person, if
the person so consents.

5. Where the Requested State advises the Requesting State 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 State may request the assistance of the Requested State in
obtaining 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 State shall, if satisfied that satisfactory arrangements for
that person's security will be made by the Requesting State, request the
person to consent to appear as a witness in proceedings or to assist in the
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;   (b) that person shall not, without that person's consent, be 
required to give evidence in any proceeding or to assist in any investigation
other than the proceeding or investigation to which the request relates; and

   (c)  where that person is a citizen of a third State, the Requesting State
        shall inform the Representative Office of that State about the matter
        through the diplomatic channel.

2. Paragraph 1 of this Article shall cease to apply where that person, being
free to leave, has not left the Requesting State within a period of thirty
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 of a court or tribunal, 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. If requested, the Requested State shall provide copies of documents and
records which are publicly available.

2. If requested, the Requested State may provide copies of documents and
records that are part of a public register or otherwise which are not publicly
available.

3. If requested, the Requested State may provide copies of any official
document or record in the same manner and under the same conditions as such
document or record may be provided to its own law enforcement and 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 of crime shall be
authenticated in accordance with paragraph 2. Documents or materials furnished
in response to a request shall be similarly authenticated, if requested.

2. Documents and materials are authenticated for the purposes of this Treaty
if:

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

   (b)  they purport to be sealed with an official seal of the State sending
        the document or of a Minister of State, or of a Department or officer
        of the Government, of that State.

Article 17
Search and seizure

1. The Requested State shall, insofar as its law permits, carry out requests
for search and seizure and delivery of material to the Requesting State
provided the information supplied, including additional information requested
pursuant to paragraph 4 of Article 5, if any, would justify such actions under
the law of the Requested State.

2. The Requested State shall provide such information as may be required by
the Requesting State 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 State shall observe any conditions imposed by the Requested
State in relation to any seized material which is delivered to the Requesting
State.

Article 18
Proceeds of crime

1. The Requested State shall, upon request, endeavour to ascertain whether any
proceeds of a crime are located within its jurisdiction and shall notify the
Requesting State of the results of its inquiries. In making the request, the
Requesting State shall notify the Requested State of the basis of its belief
that such proceeds may be located in its jurisdiction. 2. Where, pursuant to
paragraph 1 suspected proceeds of crime are found the Requested State shall
take such measures as are permitted by its law to prevent any dealing in,
transfer or disposal of, those suspected proceeds of crime, pending a final
determination in respect of those proceeds by a court of the Requesting State.

3. The Requested State shall, to the extent permitted by its law, give effect
to a final order forfeiting or confiscating the proceeds of crime made by a
court of the Requesting State.

4. In the application of this Article, the rights of bona fide third parties
shall be respected under the law of the Requested State. Where there is a
claim from a third party, the Requested State shall retain the property until
a final determination of the authoritative court.

5. The Requested State shall return the property referred to in paragraph 3 of
this Article, or the value of that property, to the Requesting State.

6. In this Article "proceeds of crime" means any property suspected, or found
by a court, to be property derived or realized, 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 Office of each Contracting Party may enter into subsidiary
arrangements consistent with the purpose of this Treaty and with the laws of
both Contracting Parties.

Article 20
Representation and expenses

1. Unless otherwise provided in this Treaty the Requested State shall make all
necessary arrangements for the representation of the Requesting State in any
proceedings arising out of a request for assistance and shall otherwise
represent the interests of the Requesting State.

2. The Requested State shall meet the cost of fulfilling the request for
assistance except that the Requesting State 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 9, 12 or 13;

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

   (c)  where required by the Requested State, exceptional expenses in
        fulfilling the request.

Article 21
Consultation

The Contracting 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, through the
Central Offices.

Article 22
Entry into force and termination

1. This Treaty shall enter into force thirty days after the date on which the
Contracting Parties have notified each other in writing that their respective
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 Contracting Party may terminate this Treaty by notice in writing 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 Jakarta on the twenty seventh day of October, one thousand nine
hundred and ninety-five in both the English and Indonesian languages, both
texts being equally authentic.

FOR AUSTRALIA:                       FOR THE REPUBLIC OF INDONESIA:
MICHAEL LAVARCH                      OETOJO OESMAN


ANNEX List of Offences Referred To in Article 1, Paragraph 2

 1.          wilful murder, murder;
 2.          manslaughter;
 3.          an offence against the law relating to abortion;
 4.          aiding or abetting or counselling or procuring the 
commission of suicide;
 5.          maliciously or wilfully wounding or inflicting grievous 

bodily harm, assault occasioning actual bodily harm;
 6.          assaulting a Magistrate, a police officer or a public 

officer;
 7.          assault on board of ship or aircraft with intent to 

destroy life or cause grievous bodily harm;
 8.          rape or sexual assault;

 9.          indecent assault;

10.          procuring, or trafficking in, women or young persons for 

immoral purposes; living on the earnings of prostitution;
any other offence against the law relating to
prostitution;
11.          bigamy;

12.          kidnapping; abduction; false imprisonment; dealing in 

slaves;
13.          stealing, abandoning, exposing or unlawfully detaining a 

child;
14.          an offence against the law relating to bribery;

15.          perjury; subornation of perjury; obstructing or defeating 

the course of justice;
16.          arson;

17.          an offence relating to counterfeiting;

18.          an offence against the law relating to forgery or against 

the law relating to uttering what is forged;
19.          an offence against the law relating to taxation, custom 

duties, foreign exchange control or other revenue
matters;
20.          stealing; embezzlement; fraudulent conversion; fraudulent 

false accounting; obtaining property, money, valuable
securities or credit by false pretences or other form of
deception; receiving stolen property, any offence
involving fraud;
21.          burglary; housebreaking; any similar offences;

22.          robbery;

23.          blackmail or extortion by means of threats or by abuse of 

authority;
24.          an offence against the law relating to bankruptcy and 

insolvency;
25.          an offence against the law relating to companies;

26.          an offence against the immigration laws;

27.          an offence against the environmental laws;

28.          maliciously or wilfully damaging property;

29.          an act done with the intention of endangering the safety 

of persons travelling on a railway, vehicle, ship, or
aircraft or of endangering or damaging a railway,
vehicle, ship or aircraft;
30.          piracy;

31.          an unlawful act against the authority of the master of a 

ship or the commander of an aircraft;
32.          the unlawful seizure, or unlawful exercise of control, of 

a ship or aircraft, by force or threat of force or by any
other form of intimidation;
33.          an unlawful act of any of the kinds specified in 

paragraph 1 of Article 1 of the Convention for the
Suppression of Unlawful Acts against the Safety of Civil
Aviation;
34.          an offence against the law relating to dangerous drugs or 

narcotics; or
35.          aiding, abetting, counselling or procuring the commission 

of, being an accessory before or after the fact to, or
attempting or conspiring to commit, an offence described
in a preceding item.