Commonwealth Numbered Regulations

1990 No. 22 MUTUAL ASSISTANCE IN CRIMINAL MATTERS (CANADA) REGULATIONS - SCHEDULE

SCHEDULE
Regulation 3
TREATY BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT
OF CANADA ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS
THE GOVERNMENT OF AUSTRALIA
DESIRING to improve the effectiveness of both countries in the investigation,
prosecution and suppression of crime through cooperation and mutual assistance
in law enforcement matters, HAVE AGREED AS FOLLOWS:
ARTICLE I-DEFINITIONS For the purposes of this Treaty, "central authority"
means
  (a) for Canada, the Minister of Justice or officials designated by    that
Minister;

   (b)  for Australia, the Attorney-General's Department, Canberra;"competent
        authority" means any person or authority with responsibility for
        matters related to the investigation or prosecution of offences;
        "offence" means

   (a)  in relation to Canada, any offence created by a law of Parliament that
        may be prosecuted upon indictment, or an offence created by a
        Legislature of a Province and specified in the Annex;

   (b)  in relation to Australia, any offence against the law of Australia or
        a part of Australia that falls or would fall within the jurisdiction
        of its courts and for which the penalty is a term of imprisonment of
        one year or more;"request" means a request made under this Treaty.
ARTICLE II-SCOPE OF APPLICATION 1. The Parties shall provide, in accordance
with the provisions of this Treaty, mutual assistance in all matters relating
to the investigation, prosecution and suppression of offences. 2. Assistance
shall include:

   (a)  exchanging information and objects;

   (b)  locating or identifying persons, objects and sites;

   (c)  serving documents;

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

   (e)  executing requests for searches and seizures;

   (f)  providing documents and records;

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

   (h)  facilitating the availability of prisoners and other persons, with
        their consent, to give evidence or assist investigations. 3. The
        provisions of this Treaty shall not give rise to a right on the part
        of a private party to obtain or exclude any evidence or to impede the
        execution of a request.
ARTICLE III-OTHER ASSISTANCE The Parties, including their competent
authorities, may provide and continue to provide assistance pursuant to other
agreements, arrangements or practices.
ARTICLE IV-REQUESTS 1. Requests and responses thereto shall be transmitted
directly between the central authorities. 2. Requests shall be made in
writing. In urgent circumstances, or where otherwise permitted by the
Requested State, requests may be made orally but shall be confirmed in writing
thereafter.
ARTICLE V-CONTENTS OF REQUESTS 1. A request shall contain such information as
the Requested State requires to execute the request, including:

   (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 investigation or procedings
        including a statement setting out the relevant facts and laws;

   (c)  except in cases of requests for service of documents, 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)  specification of any time limit within which compliance with the
        request is desired; and

   (g)  any special requirements for confidentiality and the reasons therefor.
        2. Requests for assistance may also, to the extent necessary, contain
        the following information:

   (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. The Requesting
        State shall supply such additional information as the Requested State
        considers necessary to enable the request to be fulfilled.
ARTICLE VI-REFUSAL OR POSTPONEMENT OF ASSISTANCE 1. Assistance may be refused
when in the opinion of the Requested State the execution of the request would
seriously impair its sovereignty, national security or other essential public
interests or for any reason provided by its domestic law. 2. Assistance may be
refused if:

   (a)  the request relates to an offence where the acts or omissions a lleged
        to constitute that offence would not, if they had taken place within
        the jurisdiction of the Requested State, constitute an offence; or

   (b)  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. 3. The
        Requested State may postpone assistance if execution of the request
        would interfere with any ongoing proceeding or investigation in the
        Requested State. 4. Before denying or postponing assistance pursuant
        to this Article, the Requested State shall, through its central
        authority,
  (a) promptly inform the Requesting State of the reason for consider   ing
denial or postponement; and

   (b)  consult with the Requesting State to determine whether assistance may
        be given subject to such terms and conditions as the Requested State
        deems necessary. 5. If the Requesting State accepts assistance subject
        to the terms and conditions referred to in paragraph 4 (b), it shall
        comply with such terms and conditions.
ARTICLE VII-EXECUTION OF REQUESTS 1. A request shall be executed promptly in
accordance with the law of the Requested State and, where permitted by the law
of the Requested State, in accordance with the directions stated in the
request. 2. 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 fulfillment of the request.
ARTICLE VIII-PROTECTING CONFIDENTIALITY AND RESTRICTING USE OF EVIDENCE AND
INFORMATION 1. The Requested State shall keep confidential a request, its
contents, supporting documents and any action taken pursuant to the request,
except to the extent necessary to execute it, or where the disclosure is
specifically authorized by the Requesting State in accordance with its own
terms and conditions. 2. If the request cannot be executed without breaching
confidentiality requirements stated in the request, the Requested State shall
so inform the Requesting State which shall then determine whether the request
should nevertheless be executed. 3. The Requested State may require, after
consultation with the Requesting State, that information or evidence furnished
be kept confidential or be disclosed or used only subject to terms and
conditions it may specify. 4. The Requesting State shall not use information
or evidence for a prosecution of an offence for which mutual assistance may be
refused or is not provided for under this Treaty without the prior consent of
the Requested State.
ARTICLE IX-TAKING OF EVIDENCE IN THE REQUESTED STATE 1. Where, pursuant to a
request for assistance, a person is to give evidence in the Requested State
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 laws of the
Requested State, appear and question the person giving that evidence. 2. For
the purposes of requests under this Article the Requesting State may specify
any particular questions to be put to a witness. 3. A person who is required
to give evidence in the Requested State pursuant to a request for assistance
may decline to give evidence where:

   (a)  the law of the Requested State would permit or require that person to
        decline to give evidence; or

   (b)  where the law of the Requesting State would permit or require that
        person to decline to give evidence. 4. If any person in the Requested
        State claims that there is a right or obligation to decline to give
        evidence under the law of the Requesting State, the Requesting State
        shall provide to the Requested State a certificate of a person
        designated by the central authority of the Requesting State with
        respect thereto. The certificate provides evidence of its contents.
        ARTICLE X-AVAILABILITY OF CONSENTING PRISONERS TO GIVE EVIDENCE OR
        ASSIST
INVESTIGATIONS 1. A person in custody in the Requested State whose presence is
requested in the Requesting State for the purposes of this Treaty shall be
transferred for that purpose, provided the person in custody consents and the
Requested State has no reasonable basis to deny the request. 2. The Requesting
State shall have the authority and duty to keep the person in custody at all
times and return the person to the custody of the Requested State at the
conclusion of the proceedings in relation to which the transfer to the
Requesting State was sought or at such earlier time as the person's presence
is no longer required. 3. Where the sentence imposed on a person transferred
under this Article expires while the person is in the Requesting State, that
person shall be released and thereafter treated as a person referred to in
Article XI. ARTICLE XI-AVAILABILITY OF OTHER CONSENTING PERSONS TO GIVE
EVIDENCE OR
ASSIST INVESTIGATIONS IN THE REQUESTING STATE 1. A request may be made for
assistance in facilitating the availability of a person to assist in an
investigation, or to appear as a witness in proceedings in relation to an
offence in the Requesting State, except where that person is the subject of
the investigation or the person charged with the offence. 2. The Requested
State shall, if satisfied that appropriate arrangements for that person's
safety will be made by the Requesting State, request the person to consent to
assisting in the investigation or to appearing as a witness in proceedings and
shall take all steps necessary to facilitate the request.
ARTICLE XII-SAFE CONDUCT 1. When the Requesting State wishes the Requested
State to assist it in making a person available to give evidence or assist in
an investigation in the Requesting State, the Requesting State shall provide
an adequate undertaking that the person will not, during the period he or she
is required for the purpose of assisting an investigation or giving evidence
or for a period of twenty days after the person is officially notified that
his or her presence is no longer required, be subject to detention,
prosecution, punishment or civil suit (being a civil suit to which the person
could not be subjected if he or she were not in the Requesting State), in
respect of an act or omission which preceded the person's departure from the
Requested State. 2. A person made available for the purposes of Article X or
XI shall not without that person's consent be required to give evidence in any
proceeding other than the proceeding to which the request relates. 3. A person
appearing before an authority in a Requesting State pursuant to a request
under Article X or XI shall not be subject to prosecution based on such
testimony 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 for the
purposes of Article X or XI shall not by reason thereof, be liable to any
penalty or be submitted to any coercive measure notwithstanding any contrary
statement in the request.
ARTICLE XIII-SEARCH AND SEIZURE 1. The competent authority that has executed a
request for search and seizure shall provide such information as may be
required by the Requesting State concerning, but not limited to, the identity,
condition, integrity and continuity of possession of the documents, records or
things seized and the circumstances of the seizure. 2. The Requesting State
shall observe any conditions imposed by the Requested State in relation to any
seized documents, records or things which may be delivered to the Requesting
State.
ARTICLE XIV-PROCEEDS OF CRIME 1. Upon request, the Requested State shall
endeavour to locate any property or assets of a person against whom a
forfeiture or confiscation order, pecuniary penalty order, substituted
property order, fine in lieu of such order, or any other order having a
similar effect, has been made or may be made by a court in the Requesting
State in relation to criminal conduct. 2. Where pursuant to paragraph 1,
property or assets are located, the Requested State may assist with or
initiate such proceedings as are permitted by its law to prevent any dealing
in, transfer or disposal thereof, pending a final determination in respect of
that property or those assets in any proceedings before a court of the
Requesting or Requested State. 3. The Requested State may give effect to the
extent possible under its domestic law to an order mentioned in paragraph 1
made by a court of the Requesting State or initiate appropriate proceedings in
relation to the property or assets found in the Requested State. 4. In the
application of this Article the rights of bona fide third parties shall be
respected.
ARTICLE XV-SERVICE OF DOCUMENTS 1. The Requested State shall serve any
document transmitted to it for the purpose of service. 2. The Requesting State
shall transmit a request for the service of a document pertaining to a
response or appearance in the Requesting State within a reasonable time before
the scheduled response or appearance. 3. The Requested State shall return a
proof of service in the manner required by the Requesting State.
ARTICLE XVI-PUBLICLY AVAILABLE AND OFFICIAL DOCUMENTS 1. The Requested State
shall provide copies of documents and records that are available to the
public. 2. The Requested State may provide copies of any document, record or
information in the possession of a government department or agency, but not
publicly available, to the same extent and under the same conditions as would
be available to its own law enforcement and judicial authorities.
ARTICLE XVII-AUTHENTICATION Each Contracting Party shall, upon request,
authenticate any documents or other material to be transmitted to the other
Party under this Treaty. Documents are authenticated if:

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

   (b)  they purport to be authenticated by the oath or affirmation of a
        witness or to be sealed with an official seal of the sending State or
        of a Department thereof.
ARTICLE XVIII-REPRESENTATION AMD COSTS 1. Subject to paragraphs 2 and 3, 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 assume all ordinary expenses of fulfilling
the request for assistance except that the Requesting State shall bear:
  (a) the expenses associated with conveying any person to or from th   e
territory of the Requested State, and any fees, allowances or expenses payable
to that person while in the Requesting State pursuant to a request under
Article (b) the expenses associated with conveying custodial or escorting
officers; and

   (c)  fees of experts. 3. If during the execution of the request it becomes
        apparent that expenses of an extraordinary nature are required to
        fulfill the request or the request involves any of the assistance set
        out in Article XIV of this Treaty, the parties shall consult to
        determine the terms and conditions under which the execution of the
        request may continue including legal representation and responsibility
        for costs of legal representation.
ARTICLE XIX-CONSULTATION 1. The Parties shall consult promptly, at the request
of either, concerning the interpretation and the application of this Treaty.
2. The Parties may develop such practical measures as may be necessary to
facilitate the implementation of this Treaty.
ARTICLE XX-ENTRY INTO FORCE AND TERMINATION 1. This Treaty shall enter into
force one month after the date on which the 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 made
pursuant to it whether or not the offences occurred prior to this Treaty
entering into force. 3. Either Party may terminate this Treaty by giving
written notice to the other Party at any time. Termination shall become
effective six months after receipt of such notice.
ANNEX The definition of offence includes offences created by the Legislature
of a Province of Canada in the following categories:

   (a)  consumer protection;

   (b)  environmental protection;

   (c)  securities; and

   (d)  wildlife protection.
IN WITNESS WHEREOF the undersigned, being duly authorized thereto by their
respective Governments, have signed this Treaty.
DONE in duplicate, in the English and French languages, each language version
being equally authentic, at Ottawa this 19th day of June, 1989.
MICHAEL TATE
For the Government
              of Australia                            DOUG. LEWIS

For the Government
of Canada