Commonwealth Numbered Regulations

1994 No. 33 MUTUAL ASSISTANCE IN CRIMINAL MATTERS (FRENCH REPUBLIC) REGULATIONS - SCHEDULE

                             SCHEDULE                     Regulation 4

TREATY BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF THE
FRENCH REPUBLIC ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS
The Government of Australia and
The Government of the French Republic
DESIRING to conclude a treaty on mutual assistance in criminal matters
HAVE AGREED as follows:
ARTICLE 1
SCOPE OF APPLICATION
1. The contracting Parties undertake to afford each other, in accordance with
the provisions of this Treaty, the widest measure of mutual assistance in
investigations or proceedings in respect of criminal offences the punishment
of which, at the time of the request for assistance, falls within the
jurisdiction of the judicial authorities of the Requesting State.
2. This Treaty does not apply to:

   (a)  the execution of arrest warrants;

   (b)  the enforcement of criminal judgments, except for measures taken
        pursuant to Article 15 of this Treaty to seize or confiscate proceeds
        of crime; or

   (c)  offences under military law which are not offences under ordinary
        criminal law.
ARTICLE 2
CENTRAL OFFICES
1. 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 of France shall be the Ministere de la Justice. Each
contracting Party shall notify the other of any change of its Central Office.
2. Requests for assistance shall be made through the Central Offices which
shall arrange for the prompt carrying out of such requests.
ARTICLE 3
OTHER ASSISTANCE
The provisions of this Treaty do not affect any obligations assumed by the
contracting Parties under multilateral judicial assistance conventions to
which both are party.
ARTICLE 4
COMPETENT AUTHORITIES
1. The competent authorities are, in Australia, the judicial authorities, the
public prosecutors, the authorities responsible for investigations and
proceedings related to criminal matters, the Attorney-General or his delegate
and in France, the judicial authorities, including the Ministere Public.
2. A request from Australia which does not emanate from a judicial authority
shall bear the signature of the Attorney-General or his delegate.
ARTICLE 5
REQUESTS FOR ASSISTANCE
1. The Requested Party shall, in accordance with its law, execute any requests
relating to a criminal matter and addressed to it by the competent authorities
of the Requesting Party for the purpose of investigation, procuring evidence
or transmitting articles to be produced in evidence, records or documents,
including documents of government agencies.
2. If expressly required by the Requesting Party, the Requested Party shall
give notice of the date and place of execution of the request.
3. If the Requested Party consents, officials and interested persons of the
Requesting State may be present at the examination of witnesses and, where
appropriate, at the execution of other requests, and, to the extent that the
laws of the Requested State allow, may question the witnesses or have them
questioned.
ARTICLE 6
PARTICULAR PROCEDURE
If the Requesting Party expressly states a wish that a request described in
the preceding article be executed in a certain manner, the Requested Party
shall comply with that wish to the extent that its law allows. In particular,
the Requesting Party may ask that the execution of a request be carried out by
a judicial authority or that witnesses or experts give evidence on oath.
ARTICLE 7
REFUSAL TO GIVE EVIDENCE
1. A person who is required to give evidence in the Requested State 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 in its territory; or

   (b)  the law of the Requesting State in similar circumstances permits that
        witness to decline to give evidence in such proceedings in its
        territory.
2. If any person claims that there is a right to decline to give evidence
under the law of the Requesting State, the Central Office of that State shall,
upon request, provide a certificate to the Central Office of the Requested
State as to the existence of that right. In the absence of evidence to the
contrary, the certificate shall provide sufficient evidence as to the
existence of that right.
ARTICLE 8
HANDING OVER OF PROPERTY, RECORDS AND DOCUMENTS
1. The Requested Party may delay the handing over of any property, records or
documents requested, if it requires the said property, records or documents in
connection with pending criminal proceedings. In that event, the Requested
Party shall, upon request from the Requesting Party and whenever possible,
provide certified copies of documents.
2. Any property, as well as original records or documents, handed over in
execution of requests shall be returned by the Requesting Party to the
Requested Party as soon as possible unless the latter Party waives their
return.
ARTICLE 9
SERVICE OF JUDICIAL DOCUMENTS
1. The Requested Party shall, in conformity with its law, effect service of
judicial documents which are transmitted to it for this purpose by the
Requesting Party.
2. A request to effect service of a document requiring the appearance of a
person shall be made to the Requested Party not less than 45 days before the
date on which the appearance is required. In urgent cases, the Requested Party
may waive this requirement.
3. Service may be effected by simple transmission of the writ or record to the
person to be served. If the Requesting Party expressly so requests, service
shall be effected by the Requested Party, to the extent permitted by its law,
in the manner requested by the Requesting Party.
4. The Requested Party shall forward to the Requesting Party proof of service
of the documents, setting forth the facts, the method and the date of service;
where appropriate this may be in the form of a receipt dated and signed by the
person served. If service cannot be effected, the Requesting Party shall be so
informed without delay and advised of the reasons.
ARTICLE 10
APPEARANCE OF WITNESSES OR EXPERTS
1. If the Requesting Party considers the personal appearance of a witness or
expert before the competent authorities necessary in order to give evidence in
a criminal matter, it shall so mention in its request for service of the
summons, or in its request for assistance with investigations relating to a
criminal matter, and the Requested Party shall so inform the witness or
expert. The Requested Party shall advise the Requesting Party of the reply
given by the witness or expert.
2. In the case provided for under paragraph 1 of this Article the request or
the summons shall indicate the approximate allowances payable and the
travelling and living expenses refundable.
3. Upon request, the witness may receive, through the consular authorities of
the Requesting Party, an advance to cover part or the whole of his or her
travelling costs.
ARTICLE 11
AVAILABILITY OF PERSONS IN CUSTODY TO GIVE EVIDENCE OR ASSIST
INVESTIGATIONS
1. A person in custody in the Requested State may, at the request of the
Requesting Party, be temporarily transferred to the Requesting State to give
evidence, or assist in investigations, in relation to a criminal matter.
2. The Requested Party 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 Party shall hold that person in
custody and shall return that person in custody to the Requested State as soon
as that person s presence is no longer required in the Requesting State or at
such earlier time as is specified by the Requested Party at the time of
granting the request.
4. Where the Requested Party so requests, the person s custody in the
Requesting State shall cease, to the extent that it is based on the law of the
Requested State, and such a person shall be treated as a person entitled to
receive the allowances payable and expenses refundable under Article 10.
ARTICLE 12
SAFE CONDUCT
1. Where a person is in the Requesting State pursuant to a request made under
Articles 10 or 11:

   (a)  that person shall not be prosecuted, detained, or subjected to any
        other restriction of personal liberty in the territory of the
        Requesting State, for any acts or convictions which preceded the
        person s departure from the Requested State; and

   (b)  that person shall not be compelled to give evidence in any proceeding
        other than the proceeding to which the request relates.
2. An accused or suspected person present in the Requesting State in answer to
a document served by the Requested Party pursuant to this Treaty seeking that
person s attendance to answer for acts or omissions which form the basis of
investigations or proceedings against that person, shall not be prosecuted,
detained or subjected to any other restriction of personal liberty in the
Requesting State for acts or omissions which preceded that person s departure
from the Requested State other than those specified in the document seeking
the person s attendance.
3. The immunities provided for in this Article shall cease to apply if the
person, being free to leave, has not left the Requesting State within a period
of 45 consecutive days after that person has been officially notified that
that person s presence is no longer necessary or, having left, has returned.
ARTICLE 13
FAILURE OF WITNESS OR EXPERT TO APPEAR
A witness or expert who has failed to answer a summons to appear, service of
which has been requested or effected pursuant to this Treaty, shall not, even
if the summons contains a notice of penalty, be subjected to any punishment or
measure of restraint, unless subsequently he voluntarily enters the territory
of the Requesting State and is there again duly summoned and fails to comply.
ARTICLE 14
SEARCH AND SEIZURE
1. The Requested Party shall, insofar as its law permits, carry out requests
for search and seizure and delivery of material to the Requesting Party
provided the information supplied, including additional information requested
pursuant to Article 20, paragraph 1, if any, would justify such action under
the law of the Requested State.
2. The Requested Party shall supply to the Requesting Party the information
requested by that Party 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 Party shall observe any conditions imposed by the Requested
Party in relation to any seized material which is delivered to the Requesting
Party.
ARTICLE 15
PROCEEDS OF AN OFFENCE
1. At the request of the Requesting Party and in accordance with this Treaty,
the Requested Party shall take the necessary measures to ascertain if any
proceeds from an offence which could subsequently be subject to confiscation
according to the law of the Requested State, are on the territory within its
jurisdiction and it shall inform the Requesting Party of the results of its
enquiry. When presenting its request, the Requesting Party shall inform the
Requested Party of the grounds it has for believing that the said proceeds are
on its territory.
2. To the sole extent allowed by its law and without prejudice to the rights
of any third party:

   (a)  if, pursuant to paragraph 1 of this Article, any proceeds suspected of
        being the result of an offence, are found, the Requested Party may, on
        request from the Requesting Party, take the necessary protective
        measures to ensure their possible confiscation;

   (b)  the Requested Party, at the request of the Requesting Party, may give
        effect to any final legal determination given in the Requesting State
        confiscating the proceeds of an offence.
3. Requests to be presented pursuant to paragraph 2 may be the subject of
prior consultations between the Central Offices.
4. The Requested State shall retain the property referred to in paragraph
2(b). Any proceeds of crime confiscated in the Requested State pursuant to a
request under paragraph 2(b) of this Article shall vest in the Requested
State.
ARTICLE 16
REFUSAL OF ASSISTANCE
1. Assistance may be refused if:

   (a)  the request relates to an offence where the conduct constituting that
        offence would not constitute in the Requested State, a criminal
        offence if that conduct had taken place within the territory under its
        jurisdiction;

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

   (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 request relates to an offence against a law relating to taxation,
        customs duties or foreign exchange controls;

   (e)  the request relates to an offence in respect of which the offender has
        been acquitted or pardoned or has served the sentence imposed;

   (f)  the request relates to an offence which, according to the law of
        either State, could, if committed there, be no longer the subject of
        prosecution by reason of lapse of time or any other reason;

   (g)  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 prosecution of an offence of the same nature
        committed outside its territory;

   (h)  provision of the assistance sought could prejudice an investigation or
        proceeding in the Requested State;

   (i)  the Requested Party is of the opinion that the execution of the
        request would prejudice its sovereignty, security, ordre public,
        national interest or other essential interests.
2. Where in conformity with this Treaty a request may be refused, the
Requested Party shall, before notifying its refusal, consider whether
assistance may be granted subject to such conditions as it deems necessary. If
the Requesting Party accepts assistance subject to conditions, it shall comply
with those conditions.
ARTICLE 17
CONTENTS OF REQUESTS
1. Requests for assistance shall include the following information:

   (a)  the authority on whose behalf the request is made;

   (b)  the objects of, and reasons for, the request;

   (c)  except in cases of request for service of documents, a summary
        description of the facts constituting the offence and a statement of
        the relevant law;

   (d)  where possible the identity, location and nationality of any person
        concerned;

   (e)  a description of the assistance sought including, where appropriate,
        details of the information or evidence sought, and in particular any
        documents, records or articles to be produced or any questions to be
        put to witnesses or to experts; and

   (f)  details of any particular procedure that the Requesting Party wishes
        to be followed.
2. Where appropriate the Requesting Party may indicate any time limit within
which the assistance must be provided.
ARTICLE 18
CONFIDENTIALITY
1. If so requested, each contracting Party shall endeavour, to the extent
permitted by its law, to keep confidential requests for assistance and
responses thereto.
2. If, at the time of providing material in response to the request, the
Requested Party so requests, the Requesting Party shall not use the
information or evidence obtained, nor anything derived from either, for
purposes other than those stated in the request without the prior consent of
the Requested Party.
ARTICLE 19
LANGUAGES Translation of requests and annexed documents shall not be required.
ARTICLE 20
RESPONSE TO REQUESTS
1. If the Requested Party considers that the information contained in a
request is not sufficient to enable the request to be dealt with in accordance
with this Treaty, it may request additional information.
2. The Central Office of the Requested Party shall, as soon as possible,
inform the Requesting Party of any circumstances, when they become known to
that Central Office, which are likely to cause a significant delay in
responding to the request.
3. The Central Office of the Requested Party shall as soon as possible inform
the Requesting Party of any decision not to comply in whole or in part with a
request for assistance and the reason for that decision.
ARTICLE 21
CERTIFICATION AND AUTHENTICATION
1. Documents or materials supporting a request for assistance pursuant to
Article 15 of this Treaty shall be authenticated in accordance with paragraph
3 of this Article.
2. If requested by the Requesting Party documents or materials furnished by
the Requested Party shall be similarly authenticated.
3. Documents and materials are duly authenticated for the purposes of this
Treaty if they purport to be signed or certified by a Judge, Magistrate or
officer in or of the sending State and to bear an official seal used in the
sending State. However, where the documents are bound and sealed, a Judge,
Magistrate or officer in or of the sending State need only sign or certify the
first and last pages of the bound documents.
ARTICLE 22
REPRESENTATION AND EXPENSES
1. To the extent permitted by laws of the Requested State, the Requested Party
shall make all necessary arrangements for the representation of the Requesting
Party in any proceedings arising out of a request for assistance and shall
otherwise represent the interests of the Requesting Party.
2. The Requested Party shall meet the cost of fulfilling the request for
assistance except that the Requesting Party shall bear:

   (a)  the travelling expenses of a person to and from the territory of the
        Requested State, and any allowances or expenses payable to that person
        whilst in the Requesting State;

   (b)  the expenses associated with conveying custodial or escorting
        officers; and

   (c)  the fees of experts needed to fulfil the request.
3. If it appears that the execution of the request involves or is likely to
involve exceptional expenses, the two Parties shall consult with a view to
determining the conditions according to which the execution of the request may
be pursued.
ARTICLE 23
CONSULTATION
The two Parties shall consult, at the request of either, concerning the
interpretation and the application of this Treaty.
ARTICLE 24
ENTRY INTO FORCE AND TERMINATION
1. Each contracting Party shall notify the other of the completion of the
procedures required for the entry into force of this Treaty. This Treaty shall
enter into force on the first day of the second month following the date of
receipt of the last of these notifications.
2. Each contracting Party may terminate this Treaty at any time by forwarding
through the diplomatic channel written notice of termination; termination
shall take effect six months after receipt of this notification.
IN WITNESS WHEREOF, the undersigned, being duly authorised thereto by their
respective Governments, have signed this treaty.
DONE AT Paris on the fourteenth day of January nineteen hundred and ninety
three in English and French, both texts being equally authentic.
  GARETH EVANS                     ROLAND DUMAS

FOR THE GOVERNMENT OF AUSTRALIA FOR THE GOVERNMENT OF THE FRENCH
REPUBLIC