Commonwealth Numbered Regulations

1992 No. 372 MUTUAL ASSISTANCE IN CRIMINAL MATTERS (ARGENTINE REPUBLIC) REGULATIONS - SCHEDULE SCHEDULE

TREATY BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE
GOVERNMENT OF THE ARGENTINE REPUBLIC ON MUTUAL
ASSISTANCE IN CRIMINAL MATTERS The Government of Australia and the Government
of the Argentine Republic DESIRING to co-operate in order to facilitate the
administration of justice 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) location and identification of persons; d)
execution of requests for search and seizure including the search of private
premises; e) measures to locate, restrain and forfeit the proceeds of offences
and to recover pecuniary penalties in respect of offences; 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; 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; b) the execution in the Requested State of criminal judgments
imposed in the Requesting State except to the extent permitted by ARTICLE 17;
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.
ARTICLE 3
COMPETENT AUTHORITIES AND CENTRAL OFFICE 1. A request for assistance may be
made by a person authorized by the law of the Requesting State being a
judicial authority, public prosecutor, the Attorney-General or his or her
delegate. 2. 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 for the Argentine Republic shall be the Ministry of
External Relations and Worship. Where a Contracting Party designates another
authority for the purpose of this ARTICLE, it shall do so through the
diplomatic channel. 3. The request for assistance shall be conveyed by the
diplomatic channel. Nevertheless, in cases of urgency, the request shall be
made through the Central Office and shall be confirmed at the earliest
possible opportunity through the diplomatic channel. 4. The Contracting
Parties may entrust their consuls with the execution of procedures permitted
by the law of the Requested State.
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; or (ii) an offence under military law which
is not also an offence under the ordinary criminal law; b) the request relates
to the prosecution of a person for an offence in respect of which the person
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 to facilitate the prosecution of a person on account of that
person's race, 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 other
essential interests. 2. Assistance may be refused if: a) the request seeks the
securing or forfeiture of property or the search of private premises and
the acts or omissions would not constitute the offence to which the request
relates, had they taken place within the jurisdiction of the Requested State;
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) the
request for assistance relates to the prosecution 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 d) the 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. 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 laws; c) except in cases of requests for
service of documents, a description of the acts or omissions which constitute
the offence; 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 therefor; 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 proceeding; b) a statement as to
whether a sworn or other type of declaration is 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 e)
information as to the allowances and expenses to which a person appearing in
the Requesting State will be entitled. 3. All documents submitted in support
of a request shall be 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 for the purpose of 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 such 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
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 the 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 fulfillment of
the request.
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 the 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 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
SUMMONS AND SUBPOENA 1. Where the Requesting State requires the attendance of
a person before its Courts, it shall request the service of the summons or
subpoena not less than 30 days before the date on which the attendance is
required. 2. In urgent cases the Requested State may waive this requirement.
ARTICLE 10
TAKING OF EVIDENCE 1. At the request of the Requesting State, the Requested
State shall take the evidence or statements of persons. 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. Where,
pursuant to a request for assistance, a person is to give evidence, the
parties to the relevant proceedings in the Requesting State, their legal
representatives and representatives of the Requesting State may, subject to
the laws of the Requested State, appear and question the person giving that
evidence. For the purposes of this paragraph the Requesting State shall advise
the Requested State of the names of the parties and any representatives
entitled to attend. 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 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 that person 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.
ARTICLE 11
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 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 transfer to the Requesting State was sought
or at such earlier time as that prisoner's presence is no longer required. 4.
Where the sentence imposed on a person transferred under this Article expires
while the person is in the Requesting State, that person shall thereafter be
treated as a person referred to in Article 12.
ARTICLE 12
FACILITATING ATTENDANCE OF OTHER PERSONS TO GIVE EVIDENCE OR
ASSIST INVESTIGATIONS 1. A person in the Requested State may, at the request
of the Requesting State, be invited to appear in the Requesting State to give
evidence or to assist investigations. 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 in
proceedings or to assist in the investigations.
ARTICLE 13
IMMUNITY 1. A person who consents to give evidence or assist an investigation
in the Requesting State under Articles 11 and 12 shall not be detained,
prosecuted or punished in the Requesting State for any offence, or 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. Without that person's consent, he or she shall not 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,
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 a proceeding in the Requesting State pursuant to a request under
Articles 11 or 12 shall not be subject to prosecution based on his or her
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 to a
request pursuant to Articles 11 or 12 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 14
PROVISION OF PUBLICLY AVAILABLE AND OFFICIAL DOCUMENTS 1. The Requested State
shall provide copies of any documents or 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 shall 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 15
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 certified or authenticated in
accordance with paragraph 2. 2. A document is certified or authenticated for
the purpose of this Treaty if: a) it purports to be signed or certified by any
person specified in paragraph 1 of Article 3 of the State sending the
document; and b) it purports to be sealed with an official seal of a minister
of state or of a department of the Government of that State. 3. The signatures
and seal on documents presented through the diplomatic channel shall be deemed
to be those of the persons and the department referred to in paragraph 2 of
this Article.
ARTICLE 16
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 17
PROCEEDS OF OFFENCES 1. The Requested State shall, upon request, endeavour to
ascertain whether any proceeds of an offence 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 an
offence are found the Requested State, upon request by the Requesting State,
shall take such measures as are permitted by its law to prevent any dealing
in, transfer or disposal of, those suspected proceeds of the offence, pending
a final determination in respect of those proceeds. 3. Where the person
convicted of an offence retains ownership of the proceeds of the offence of
which he or she was convicted, the Requested State shall give effect to a
pecuniary penalty order in respect of the offence or to a forfeiture or
confiscation order in respect of the proceeds of the offence made by a court
of the Requesting State. 4. Where the person convicted of an offence has
disposed of the proceeds of the offence of which he or she was convicted, a
court of the Requested State shall, at the request of the Requesting State,
determine whether the transferee obtained the property without notice that it
was or may have been the proceeds of an offence. Where the court of the
Requested State determines that the transferee was not a bona fide third party
it shall order the forfeiture or confiscation of the property. 5. The
Requested State shall with respect to the property referred to in paragraphs 3
and 4, retain one half of the value and transfer the remainder to the
Requesting State. Where the property is real property the Requested State
shall sell that property and disburse the proceeds of that sale in accordance
with this paragraph. 6. For the purpose of this Article, proceeds of an
offence includes any property obtained directly or indirectly as a result of
the commission of an offence and instrumentalities used in the commission of
the offence.
ARTICLE 18
SUBSIDIARY ARRANGEMENTS The Central Offices of the Contracting Parties may
enter into subsidiary arrangements consistent with the purposes of this Treaty
in order to facilitate its functioning.
ARTICLE 19
REPRESENTATION For the purposes of this Treaty, the Requested State, through
its competent authorities, shall afford representation of the interests of the
Requesting State in any proceedings. The representative appointed by the
Requested State shall be legally authorized to act in those proceedings.
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 while in
the Requesting State pursuant to a request under Articles 11 or 12; 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 also apply to requests
made in relation to acts or omissions occurring prior to this Treaty entering
into force. 3. Either Contracting Party may notify the other in writing at any
time of its intention to terminate this Treaty and it shall cease to be in
force on the one hundred and eightieth day after the day on which notice is
given. 4. Notwithstanding that a Contracting Party has given notice pursuant
to paragraph 3, this Treaty continues to apply to requests made before that
notice was given. IN WITNESS WHEREOF, the undersigned, being duly authorized
thereto by their respective Governments, have signed this Treaty. DONE at
Buenos Aires, on the thirtieth day of August, one thousand nine hundred and
ninety in the English and Spanish languages, both texts being equally
authentic.
FOR THE GOVERNMENT OF              FOR THE GOVERNMENT OF THE

AUSTRALIA                          ARGENTINE REPUBLIC

RICHARD WOOLCOTT                   HECTOR SUBIZA