Commonwealth Numbered Regulations

1993 No. 305 MUTUAL ASSISTANCE IN CRIMINAL MATTERS (REPUBLIC OF KOREA) REGULATIONS - SCHEDULE

                         SCHEDULE            Regulations 3 and 4

TREATY BETWEEN AUSTRALIA AND THE REPUBLIC OF KOREA
ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS Australia and the Republic of Korea,
Desiring to improve the effectiveness of both countries in the prevention,
investigation, prosecution and suppression of crime through cooperation and
mutual assistance in criminal matters, 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 matter includes matters connected
with offences against a law relating to taxation, customs duties, foreign
exchange control and other revenue matters. 3. Such assistance shall consist
of:

   (a)  taking of evidence and obtaining of statements of persons;

   (b)  provision of documents and other records;

   (c)  delivery of material including lending of exhibits;

   (d)  location and identification of persons;

   (e)  execution of requests for search and seizure;

   (f)  measures to assist in relation to proceeds of crime;

   (g)  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;

   (h)  service of documents; and

   (i)  other assistance consistent with the objects of this Treaty which is
        not inconsistent with the law of the Requested State. 4. Assistance
        shall not include:

   (a)  the extradition of any person;

   (b)  the execution in the Requested State of criminal judgments 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 prisoners 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 authorities 1. The Contracting Parties shall each appoint a Central
Authority to transmit and receive requests for the purpose of this Treaty. The
Central Authority of Australia shall be the Attorney-General of the
Commonwealth or the Attorney-General's Department if so designated by the
Attorney-General and the Central Authority of the Republic of Korea shall be
the Minister of Justice or an official designated by that Minister. On entry
into force of this Treaty, each Contracting Party shall inform the other of
the title of its respective Central Authority. Each Contracting Party shall
inform the other of any change in its Central Authority. 2. The Central
Authorities shall communicate through the diplomatic channel or directly with
one another for the purposes of this Treaty.
Article 4
Refusal of assistance 1. Assistance may 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; 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, in the Requested or Requesting State, the offender
        has been finally acquitted or pardoned or has served the sentence
        imposed;

   (c)  there are substantial grounds for believing that the request for
        assistance has been made for the purpose of prosecuting or punishing a
        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;

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

   (e)  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;

   (f)  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 or any other
        reason; or

   (g)  provision of the assistance sought could prejudice an investigation or
        proceeding in the Requested State or prejudice the safety of any
        person. 2. 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
        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 request 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
        therefore; 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 confidential the application for assistance, the contents of a request
and its supporting documents, and the fact of granting of such assistance. 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 documents. If service cannot be
effected, the Requesting Party shall be so informed and advised of the
reasons.
Article 10
Taking of evidence 1. Where a request is made for the purpose of proceedings
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 material.
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. To the extent not prohibited by the law of the
Requested State, judges or officials of the Requesting State and other persons
involved in the investigation or proceedings shall be permitted to be present
at the execution of the request and to participate in the proceedings in the
Requested State. The right to participate in the proceedings shall include the
right of any person present to pose questions through the judges or officials
of the Requested State. 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 State permits that witness to decline to give evidence in
similar circumstances in proceedings originating in the Requested State. 6.
Where a person who is required to give evidence in the Requested State under
this Article claims that there is a right to decline to give evidence in the
proceedings in the Requesting State, referred to in paragraph 1, the Requested
State shall either:

   (a)  request the Central Authority of the Requesting State to provide a
        certificate as to the existence of that right; or

   (b)  nevertheless require the person to give the evidence and transmit the
        evidence to the Requesting State for its determination as to the
        existence of the right claimed by the person. 7. Where the Requested
        State receives a certificate from the Requesting State as to the
        existence of the right claimed by the person, that certificate, in the
        absence of evidence to the contrary, shall provide sufficient evidence
        as to the existence of the 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 or at such earlier
time as the person's presence is no longer required. 4. 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. 5. For the purposes of this
Article, the person transferred shall receive credit for service of any
sentence imposed in the Requested State for time served in the custody of the
Requesting State.
Article 13
Availability of other persons in custody to give
evidence or to 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, invite the person to consent to appear as a
        witness in proceedings or to assist in the investigations. The
        Requested State shall promptly inform the Requesting State of that
        person's response.
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 proceeding or to assist any investigation other
        than the proceeding or investigation to which the request relates. 2.
        Paragraph 1 shall cease to apply if that person, being free to leave,
        has not left the Requesting State within a period of fifteen days
        after that person has been officially notified that that person's
        presence is no longer required or, having left, has voluntarily
        returned. 3. 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 State
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. 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, a Department or an 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 action 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, including any terms and conditions to protect third party interests in
the material.
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
restrain and forfeit such proceeds. 3. In the application of this Article, the
rights of bona fide third parties shall be respected under the law of the
Requested State. 4. The Requested State, when in control of forfeited
proceeds, shall deal with those proceeds in accordance with its law.
Article 19
Subsidiary arrangements
The Central Authorities of the Contracting Parties may enter into subsidiary
arrangements to implement this Treaty in accordance 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.
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 six months 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 CANBERRA on this TWENTY-FIFTH day of August One thousand nine hundred
and ninety-two in the English and Korean languages, both texts being equally
authentic.
FOR AUSTRALIA:           FOR THE REPUBLIC OF KOREA:

MICHAEL DUFFY            KIM KI-CHOON