Mutual Assistance in Business Regulation Act 1992

Subject to subsection (2), this Act commences on a day to be fixed by Proclamation.

If this Act does not commence under subsection (1) within the period of 6 months beginning on the day on which it receives the Royal Assent, it commences on the first day after the end of that period.

In this Act, unless the contrary intention appears:

has functions relating to the administration or enforcement of a business law of the Commonwealth, a State or a Territory; and

is prescribed for the purposes of this definition.

a business law of a foreign country; or

a law, or rules or regulations (however described), that an international business regulator administers or enforces.

the government of a foreign country or a part of a foreign country; or

an agency of such a government having functions relating to the administration or enforcement of a foreign business law; or

a person or body that is certified by such a government as having such functions in the country or part of a country that it governs; or

an international business regulator.

the body has functions relating to the regulation, in 2 or more countries, of business, or persons engaged in business;

those functions are conferred on the body by:

a law or laws in force in those countries; or

a treaty, or other international agreement, to which those countries are parties; or

without limiting subparagraphs (i) and (ii)—a parliament or other body established by or under a treaty, or other international agreement, to which those countries are parties.

For the purposes of this Act:

a colony, territory or protectorate of a foreign country; and

a territory for the international relations of which a foreign country is responsible;

A reference in this Act to a law of a foreign country includes a reference to a law of a part of, or a law in force in a part of, the foreign country.

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

The object of this Act is to enable Commonwealth regulators to render assistance to foreign regulators in their administration or enforcement of foreign business laws by obtaining from persons relevant information, documents and evidence and transmitting such information and evidence and copies of such documents to foreign regulators.

Nothing in this Act is intended to limit the operation of the Mutual Assistance in Criminal Matters Act 1987.

A foreign regulator, for purposes relating to the administration or enforcement of a foreign business law, may request a Commonwealth regulator to arrange for:

the obtaining from a person of information, documents or evidence specified in the request or relating to a matter specified in the request; and

transmitting such information, evidence or copies of such documents to the foreign regulator.

The Commonwealth regulator must not take action under section 7 in relation to the request unless the Commonwealth regulator has received in writing from the foreign regulator:

an undertaking by the foreign regulator to the effect that information or evidence obtained from the person and provided to the foreign regulator under this Act:

will not be used for the purposes of criminal proceedings against the person or of proceedings against the person for the imposition of a penalty; and

to the extent to which it is within the ability of the foreign regulator to ensure it, will not be used by any other person, authority or agency for the purposes of any such proceedings; and

such information in relation to the request as is required by the regulations.

Subject to subsection 6(2), a Commonwealth regulator that has received a foreign request must, in writing:

inform the Minister that the Commonwealth regulator:

does not oppose the request; or

does not oppose the request subject to conditions specified by the Commonwealth regulator being imposed in relation to the providing of anything in compliance with the request and the giving by the foreign regulator of any undertakings so specified for the purpose of ensuring compliance with any such conditions; or

refuse the request.

Conditions mentioned in subparagraph (1)(a)(ii) may include (but need not be limited to) conditions relating to any or all of the following:

maintaining the confidentiality of anything provided in compliance with the request, in particular, information that is personal information within the meaning of the Privacy Act 1988;

the storing of, use of, or access to, any such thing;

copying, returning or disposing, of copies of documents provided in compliance with the request.

When considering what action to take in relation to the request, the Commonwealth regulator is to take into account the following matters and any other matters that the Commonwealth regulator thinks relevant:

whether the Commonwealth regulator is likely to be able to obtain the requested information, documents or evidence;

the cost to the Commonwealth regulator of complying with the request;

whether the foreign regulator could more conveniently have the request satisfied from another source;

the extent to which the functions of the foreign regulator correspond with the functions of the Commonwealth regulator;

whether the foreign regulator would be likely to comply with a similar request made by the Commonwealth regulator and whether any arrangement with the foreign regulator to that effect exists;

whether, in the opinion of the Commonwealth regulator, it would be more appropriate for the request to be dealt with under the Mutual Assistance in Criminal Matters Act 1987.

If the Commonwealth regulator informs the Minister as mentioned in subparagraph 7(1)(a)(i) or (ii), the Minister must, in writing:

authorise the obtaining of the information, documents or evidence, as the case may be, from the person in compliance with the request; or

refuse the request.

In considering action under this section or subsection 9(2) in relation to the request, the Minister is to take into account the following matters and any other matters that he or she thinks relevant:

whether it is in Australia’s national interest to comply with the request;

whether complying with the request is consistent with international law and international comity;

whether anything provided in compliance with the request is likely to be used for punishing a person for an offence of a political character;

whether anything provided in compliance with the request is likely to be used for prosecuting, punishing or otherwise harming a person because of the person’s race, sex, religion, nationality or political opinions;

whether it would be more appropriate for the request to be dealt with under the Mutual Assistance in Criminal Matters Act 1987.

Subject to subsection (2), if:

the Commonwealth regulator, in relation to a foreign request, has informed the Minister as mentioned in subparagraph 7(1)(a)(ii); and

the Minister gives an authorisation under section 8 in relation to the request;

In giving an authorisation under section 8, the Minister may:

impose conditions or further conditions subject to which anything may be provided in compliance with the request; and

require undertakings to be given by the foreign regulator to ensure compliance with any such conditions; and

omit or vary any condition or undertaking to which the authorisation would, under subsection (1), otherwise be subject.

An authorisation under section 8 that is subject to compliance with conditions or the giving of undertakings (including conditions or undertakings imposed or required under subsection (2)) must specify those conditions and any such undertaking.

Where the Minister gives an authorisation under section 8, the following provisions of this section apply.

The Commonwealth regulator may, by written notice served on the person to whom the authorisation relates, require the person:

to give to the Commonwealth regulator, by instrument signed by the person or, in the case of a body corporate, by a competent officer of the body corporate, within the time and in the manner specified in the notice, information to which the foreign request relates; or

to produce to the Commonwealth regulator, or to a person specified in the notice acting on behalf of the Commonwealth regulator, in accordance with the notice, documents to which the foreign request relates; or

to appear before a person specified in the notice acting on behalf of the Commonwealth regulator, at a time and place specified in the notice, to give evidence to which the foreign request relates, either orally or in writing, and produce any such documents.

In addition to such information, documents or evidence, an authorisation under section 8 extends to any other information, documents or evidence that, in the opinion of the Commonwealth regulator, is relevant to the matter to which the foreign request relates.

A person mentioned in paragraph (2)(c) may require the evidence mentioned in that paragraph to be given on oath or affirmation and for that purpose the person may administer an oath or affirmation.

An appearance for the purpose of giving evidence by a person in accordance with a requirement under section 10 is to take place in private and may be attended only by a person mentioned in subsection (2).

Only the following persons may be present during the taking of evidence:

the person taking or giving the evidence;

a staff member of the Commonwealth regulator who is approved by the Commonwealth regulator;

a representative of the foreign regulator;

a person who is present at the request of the person giving the evidence;

a person who is entitled to be present under a direction given by the person taking the evidence;

a person who is entitled to be present under section 12.