Commonwealth Numbered Regulations

1991 No. 69 MUTUAL ASSISTANCE IN CRIMINAL MATTERS (KINGDOM OF THE NETHERLANDS) REGULATIONS - SCHEDULE

                        SCHEDULE             Regulation 4

TREATY BETWEEN AUSTRALIA
AND THE KINGDOM OF THE NETHERLANDS
ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS AUSTRALIA AND THE KINGDOM OF THE
NETHERLANDS 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. Such assistance shall consist of:

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

   (b)  provision of documents and other records;

   (c)  location and identification of persons;

   (d)  execution of requests for search and seizure;

   (e)  making prisoners available to give evidence or assist investigations;

   (f)  making other persons available to give evidence or assist
        investigations;

   (g)  service of documents;

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

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

   (a)  the arrest or detention of any person with a view to extradition;

   (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 COOPERATION This Treaty shall not derogate from obligations subsisting
between the Contracting Parties whether pursuant to other treaties or
arrangements nor prevent the Contracting Parties providing assistance to each
other pursuant to other treaties or arrangements.
ARTICLE 3
CENTRAL OFFICES 1. The Contracting Parties shall each appoint a Central Office
to transmit and receive requests for the purpose of this Treaty. Until the
relevant Contracting Party designates another authority, the Central Office of
Australia shall be the Attorney-General's Department, Canberra and the Central
Offices for the Kingdom of the Netherlands shall be:
- for the Kingdom in Europe: The Ministry of Justice, The Hague;
- for the Netherlands Antilles: The Ministry of Justice, Willemstad, Curacao;
and
- for Aruba: The Ministry of Justice, Oranjestad, Aruba. 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 an offence that is regarded by the Requested
        State as 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 an offence in respect of which the offender has
        been finally acquitted or pardoned, has served the sentence imposed,
        or in respect of which the Requested State has decided to refrain from
        prosecution;

   (c)  there are substantial grounds for believing that the request for
        assistance has been made to facilitate the prosecution of 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; or

   (d)  the Requested State is of the opinion that the request, if granted,
        would seriously impair its sovereignty, security, national interest or
        similar essential interests. 2. Assistance may be refused if:

   (a)  the request relates to an offence that is regarded by the Requested
        State as an offence of a political character;

   (b)  the request relates to 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;
        or

   (c)  the provision of the assistance sought could prejudice an
        investigation or criminal or civil proceeding in the Requested State,
        prejudice the safety of any person or impose an excessive burden on
        the resources of that State. 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 these conditions, it
        shall comply with the conditions.
ARTICLE 5
CONTENTS OF REQUESTS 1. Requests for assistance shall include:

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

   (b)  a description of the nature of the criminal matter including a
        statement of the relevant law;

   (c)  except in cases of requests for service of documents, other than
        summonses, a description of the essential acts, or omissions or
        matters alleged or sought to be ascertained;

   (d)  the purpose for which the request is made and the nature of the
        assistance sought;

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

   (f)  the requirements, if any, of confidentiality and the reasons
        therefore; and

   (g)  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 the investigation or proceedings;

   (b)  a statement as to whether sworn or affirmed evidence or statements are
        required;

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

   (d)  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, to the extent not otherwise provided for,
        the form in which they should be reproduced and authenticated; and

   (e)  information as to the allowances and expenses to which a person
        appearing in the Requesting State will be entitled. 3. A request and
        any supporting documents submitted by Australia shall be in English or
        shall be translated into Dutch. A request and any supporting documents
        submitted by the Kingdom of the Netherlands shall be in, or translated
        into, English. 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, that State
        may request that additional information be furnished.
ARTICLE 6
EXECUTION OF REQUESTS 1. To the extent permitted by its law, the Requested
State shall provide assistance in accordance with the requirements specified
in the request and shall respond to the request as soon as practicable after
it has been received. 2. The Requested State may postpone the delivery of
material requested if such material is required for any proceedings in that
State. The Requested State shall, upon request, provide authenticated 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, after the completion of the proceedings, shall return to
the Requested State material provided by the Requested State in fulfilment of
the request.
ARTICLE 8
PROTECTING CONFIDENTIALITY AND RESTRICTING USE OF EVIDENCE AND INFORMATION 1.
The Requested State shall, to any extent requested, keep a request for
assistance, the contents of a request and 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 the extent to which it
wishes the request to be executed. 2. The Requesting State shall, if so
requested, keep confidential evidence and information 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 evidence obtained, nor information derived
therefrom, for purposes other than those stated in a request without the prior
consent of the Requested State.
ARTICLE 9
SERVICE OF SUMMONSES A request to effect service of a summons shall be made to
a Requested State not less than 45 days before the date on which the personal
appearance of any person in the Requesting State is scheduled. In urgent
cases, the Requested State may waive this requirement.
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 sworn or affirmed evidence of witnesses for
transmission to the Requesting State. 2. For the purposes of this Article, the
giving or taking of evidence may include the production of documents, records
or other material. 3. For the purposes of requests under this Article the
Requesting State shall specify any particular questions to be put to the
witnesses or the subject matter about which they are to be examined. 4. Where,
pursuant to a request for assistance, a person is to give evidence for the
purpose of proceedings in the Requesting State, the parties to the relevant
proceedings in the Requesting State, their legal representatives or
representatives of the Requesting State may, subject to the law of the
Requested State, appear and question the person giving that evidence. 5. A
person who is required to give evidence in the Requested State pursuant to a
request for assistance may decline to give evidence where either:

   (a)  the law of the Requested State would permit or require that person to
        decline to give evidence in similar circumstances in proceedings which
        originated in the Requested State; or

   (b)  where the law of the Requesting State would permit or require that
        person to decline to give evidence in such proceedings in the
        Requesting State. 6. If any person claims that there is a right or
        requirement to decline to give evidence under the law of the
        Requesting State, the Requested State shall with respect thereto rely
        on a certificate of the Central Office of the Requesting State.
ARTICLE 11
OBTAINING OF STATEMENTS OF PERSONS Where a request is made to obtain the
statements of persons for the purpose of an investigation or proceeding in
relation to a criminal matter in the Requesting State, the Requested State
shall endeavour to obtain such statements.
ARTICLE 12
AVAILABILITY OF PRISONERS TO GIVE EVIDENCE
OR ASSIST INVESTIGATIONS 1. A prisoner in the Requested State may at the
request of the Requesting State be temporarily transferred to the Requesting
State to give evidence or to assist investigations. 2. The Requested State
shall not transfer a prisoner to the Requesting State unless the prisoner
consents. 3. While the original sentence of a prisoner in the Requested State
has not expired, the Requesting State shall hold the prisoner in custody and
shall return that prisoner in custody to the Requested State as soon as
possible. 4. Where the sentence imposed on a person transferred under this
Article expires whilst the person is in the Requesting State, that person
shall thereafter be released 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 making a person available to appear as a witness in
proceedings in relation to a criminal matter in the Requesting State unless
that person is the person charged, or to 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 appear as a witness or
assist in the investigations and advise the person of the conditions and
protections relating to his or her attendance in the Requesting State.
ARTICLE 14
SAFE CONDUCT 1. A person who consents to give evidence or assist an
investigation in the Requesting State under Articles 12 or 13 shall not whilst
in the Requesting State pursuant to a request:

   (a)  be detained, prosecuted or punished in that State for any offence, or
        be subject to any civil suit, to which the person could not otherwise
        be subjected, in respect of any act or omission which preceded the
        person's departure from the Requested State; or

   (b)  without that person's consent, be required to give evidence in any
        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 12, and being
        free to leave, has not left the Requesting State within a period of
        thirty days after that person has been officially notified that his or
        her presence is no longer required or, having left, has returned. 3. A
        person appearing before an authority in a Requesting State pursuant to
        a request under Articles 12 or 13 shall not be subject to prosecution
        based on the testimony given except in relation to perjury under the
        law of that State. 4. A person who does not consent to a request
        pursuant to Article 12 or Article 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. 5. A person who
        appears as a witness in the Requesting State pursuant to a request for
        assistance may decline to give evidence if the person has, under the
        law of the Requested State, an obligation to do so. 6. If any person
        claims to be under an obligation to decline to give evidence under the
        law of the Requested State, the Requesting State shall with respect
        thereto rely on a Certificate of the Central Office of the Requested
        State.
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 in its discretion 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
AUTHENTICATION 1. Each Contracting State shall, upon request, authenticate any
documents or other material to be transmitted to the other State under this
Treaty. 2. A document or other material is authenticated for the purposes of
this Treaty if:

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

   (b)  it purports to be authenticated by an official seal of a minister of
        state, or of a department or officer of the Government, of the State
        sending the document.
ARTICLE 17
SEARCH AND SEIZURE 1. The Requested State shall insofar as its law permits
carry out requests for search, seizure and delivery of any material to the
Requesting State provided the request contains information that 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 property seized. 3. The Requesting State
shall observe any conditions imposed by the Requested State in relation to any
seized property 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 the crime alleged 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. The Requested State shall give effect to a
confiscation order relating to the proceeds of crime or any other measure
having similar effect made or imposed by a Court of the Requesting State. 3.
Where the Requesting State notifies its intention to seek the enforcement of a
confiscation order or a similar measure the Requested State shall take such
measures consistent with its law to prevent any dealing in, transfer or
disposal of, the property which is or may be affected by those orders. 4.
Proceeds confiscated pursuant to this Treaty shall be retained by the
Requested State unless otherwise mutually decided in a particular case. 5. In
the application of this Article the rights of bona fide third parties shall be
respected.
ARTICLE 19
SUBSIDIARY ARRANGEMENTS The Central Offices of the Contracting Parties may
enter into subsidiary arrangements with each other to facilitate the operation
of this Treaty to the extent that such arrangements are consistent with the
laws of both Contracting Parties.
ARTICLE 20
EXPENSES 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 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 1. This Treaty shall enter into force on the first day of the
second month following the date on which the Contracting Parties shall have
notified each other that their legal requirements have been complied with. 2.
This Treaty shall apply to requests made pursuant to it whether or not the
relevant acts or omissions occurred prior to the Treaty entering into force.
ARTICLE 23
TERRITORIAL APPLICATION 1. Subject to paragraph 2 of this Article as regards
the Kingdom of the Netherlands, this Treaty shall apply to the territory of
the Kingdom as a whole. 2. This Treaty shall not apply to assistance provided
for in Article 18 as between Australia and those parts of the Kingdom of the
Netherlands outside Europe until the Kingdom of the Netherlands notifies
Australia to the contrary.
ARTICLE 24
TERMINATION 1. Either Contracting Party may terminate this Treaty at any time
by written notification to the other Party. The termination shall be effective
six months after the date of receipt of such notice. 2. Termination of this
Treaty by the Kingdom of the Netherlands may be limited to one of its
constituent parts. DONE at Canberra on the twenty-sixth day of October One
thousand nine hundred and eighty-eight in English and Dutch, both texts being
equally authentic.
FOR AUSTRALIA                                    FOR THE KINGDOM OF THE

NETHERLANDS
Michael Tate                                         Hans van den Broek