Commonwealth Numbered Regulations

1993 No. 304 MUTUAL ASSISTANCE IN CRIMINAL MATTERS (REPUBLIC OF THE PHILIPPINES) REGULATIONS - SCHEDULE

                        SCHEDULE                    Regulation 3

TREATY BETWEEN AUSTRALIA
AND THE REPUBLIC OF THE PHILIPPINES
ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS Australia and the Republic of the
Philippines DESIRING to extend to each other the widest measure of cooperation
in the investigation, prosecution, and suppression of crime, HAVE AGREED as
follows:
Article 1
Scope of Application 1. The Contracting States shall, in accordance with the
provisions of this Treaty, grant and provide to each other assistance in all
matters relating to investigations or proceedings in respect of criminal
matters. 2. For purposes of this Treaty, criminal matter includes:

   (a)  a criminal matter relating to revenue (including taxation and customs
        duties);

   (b)  a criminal matter relating to foreign exchange control;

   (c)  a criminal matter relating to graft and corruption, unlawfully
        acquired or acquiring property, bribery, frauds against the public
        treasury, or malversation or fraudulent conversion of public funds or
        property;

   (d)  a matter relating to the forfeiture or confiscation of property in
        respect of an offence;

   (e)  a matter relating to the imposition or recovery of a pecuniary penalty
        in respect of an offence; and

   (f)  a matter relating to the restraining of dealings in property, or the
        freezing of assets that may be forfeited, confiscated or used to
        satisfy a pecuniary penalty imposed in respect of an offence. 3. Such
        assistance shall consist of:

   (a)  taking of evidence;

   (b)  provision of documents, other records and information, and the
        obtaining of statements of persons;

   (c)  location and identification of persons and property;

   (d)  execution of requests for search and seizure;

   (e)  measures to locate, restrain and forfeit the proceeds of crime and to
        recover pecuniary penalties in respect of offences including
        restraining of dealings in property or the freezing of assets alleged
        to be related to a criminal matter;

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

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

   (h)  service of documents including judicial 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 arrest or detention of any person with a view to extradition; and

   (b)  the execution in the Requested State of criminal judgments imposed in
        the Requesting State other than in accordance with this Treaty.
Article 2
Other Assistance
This Treaty shall not affect subsisting obligations between the Contracting
States pursuant to other treaties or arrangements or otherwise nor prevent the
Contracting States from providing assistance pursuant to such treaties or
arrangements.
Article 3
Central Offices 1. Each Contracting State shall designate a Central Office
which shall transmit and receive requests for the purpose of this Treaty.
Until the Contracting State concerned designates another authority, the
Central Office for Australia shall be the Attorney-General's Department,
Canberra and the Central Office for the Republic of the Philippines shall be
the Department of Justice, Manila. 2. Requests for assistance shall be
transmitted to and received by the Central Offices through the diplomatic
channel. The Central Offices shall arrange for the prompt carrying out of such
requests. In cases of urgency, requests for assistance may be made directly
between the Central Offices.
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:

        (i)    an offence of a political character, provided that graft and
               corruption, unlawfully acquired or acquiring property, bribery,
               frauds against the public treasury, or malversation or
               fraudulent conversion of public funds or property shall not per
               se be regarded as offences of a political character; or

        (ii)   an offence solely under its military law which is not an
               offence under its ordinary criminal law;

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

   (c)  the request relates to an offence in respect of which the offender has
        served the sentence imposed, except that assistance shall not be
        refused if the request relates to forfeiture of property in relation
        to a criminal matter or the recovery of a pecuniary penalty arising
        out of criminal conduct;

   (d)  there are substantial grounds for believing that the request was made
        for the purpose of prosecuting, punishing, or otherwise causing
        prejudice to a person on account of that person's race, sex, religion,
        nationality or political beliefs; or

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

   (a)  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;

   (b)  the request relates to 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)  the request for assistance relates to 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

   (d)  the provision of the assistance sought could prejudice an
        investigation or proceeding in the Requested State, endanger 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 setting out the relevant laws;

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

   (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 whereabouts 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, 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;

   (d)  information as to the allowances and expenses to which a person
        appearing in the Requesting State will be entitled; and

   (e)  a description of any property sought to be restrained, frozen or
        forfeited. 3. All documents submitted in support of a request shall be
        in English or accompanied by an official translation in English. 4. If
        the Requested State considers that the information contained in the
        request is not sufficient for the purposes of this Treaty, that State
        may request the Requesting State for additional information.
Article 6
Execution of Requests 1. To the extent permitted by its law, the Requested
State shall provide such assistance as specified in the request and shall
respond as soon as practicable. 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 its decision 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 by the Requested State after the completion of the
proceedings to which the request relates.
Article 8
Protecting Confidentiality and Restricting
Use of Evidence and Information 1. The Requesting State, if so requested,
shall protect the confidentiality of the evidence and information provided by
the Requested State, except to the extent required for the investigation and
proceeding described in the request. 2. The Requested State, if so requested,
shall keep the request for assistance, its contents 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 whether the
request should nevertheless be executed. 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 Documents
A request to effect service of a document requiring the appearance of a person
shall be made not less than 30 days before the date on which the personal
appearance is required. In urgent cases, the Requested State may waive this
requirement.
Article 10
Taking of Evidence 1. The Requested State shall take the evidence of witnesses
for transmission to the Requesting State if a request is made for the purpose
of a proceeding in relation to a criminal matter in the Requesting State. 2.
The giving or taking of evidence shall include the production of documents,
records or other material. 3. The request for assistance under this Article
shall indicate the nature of the questions to be put to the witnesses or the
subject matter about which they are to be examined. 4. The parties to the
relevant proceedings in the Requesting State, their legal representatives or
representatives of the Requesting State may, subject to the laws of the
Requested State, appear and question the person giving evidence in accordance
with this Article. 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 Requested State shall, with
        respect thereto, rely on a certificate of the Central Office of the
        Requesting State as prima facie proof of the existence of that right.
Article 11
Obtaining of Statements of Persons
Where a request is made for the obtaining of 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 at the conclusion
of the proceedings in relation to which the transfer to the Requesting State
is sought under paragraph 1 of this Article or at such earlier time as the
prisoner's presence is no longer required. 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 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, request the person to consent to appear as a
witness in proceedings or to assist in the investigations.
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 be
detained, prosecuted or punished in the Requesting State for any offence or be
subject to any civil suit in respect of any act or omission which preceded the
person's departure from the Requested State, or, without the person's consent,
be required to give evidence in proceedings other than the proceeding to which
the request relates. 2. Paragraph 1 of this Article shall cease to apply if
that person, not being a prisoner detained under Article 12, 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 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 that
that person shall be subject to the laws of that State in relation to contempt
and perjury. 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.
Article 15
Provision of Publicly Available and Offical (sic) 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
Certification and Authentication 1. A request for mutual assistance and the
supporting documents thereto, as well as documents or other material supplied
in response to such a request, shall be authenticated in accordance with
paragraph 2. 2. A document is authenticated for the purposes of this Treaty if
it purports to be:

   (a)  signed or certified by a Judge, Magistrate or other officer in or of
        the relevant Contracting State; and

   (b)  verified by oath or affirmation or sealed with an official or public
        seal of the relevant Contracting State or of a Minister of State, or
        of a Department or officer of the Government, of the relevant
        Contracting State.
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
Restraint and Forfeiture of Property 1. The Requested State shall, upon
request, endeavour to ascertain whether property which may become the subject
of a forfeiture order or which may be required to satisfy a pecuniary penalty
order is located within its jurisdiction and shall notify the Requesting State
of the results of its inquiries. 2. Where pursuant to paragraph 1 such
property is found, the Requested State shall take such measures as are
permitted by its law to prevent any dealing in, transfer or disposal of, that
property pending a final determination in respect of that property by a Court
of the Requesting State. 3. The Requested State shall give effect to a
pecuniary penalty order in respect of an offence, or to a forfeiture order in
respect of the crime, made by a Court of the Requesting State and shall return
or deliver the property obtained as a result of giving effect to such orders
to the Requesting State. 4. Where the property referred to in paragraph 3 of
this Article is real property the Requested State shall sell that property and
deliver the proceeds of the sale to the Requesting State.
Article 19
Subsidiary Arrangements
The Central Office of each Contracting State may enter into subsidiary
arrangements with each other consistent with the purposes of this Treaty and
with the laws of both Contracting States.
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 12 or 13; and

   (b)  the expenses associated with conveying custodial or escorting
        officers.
Article 21
Consultations
The Contracting States 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 States 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 made
pursuant to it whether or not the relevant acts or omissions occurred prior to
this Treaty entering into force. 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 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 Canberra on the
twenty eighth day of April One Thousand nine hundred and eighty eight in two
originals in English.
FOR AUSTRALIA                FOR THE REPUBLIC

OF THE PHILIPPINES
LIONEL BOWEN                 SEDFREY A. ORDONEZ. G