Mutual Assistance in Criminal Matters Act 1987

Section 1 and this section shall come into operation on the day on which this Act receives the Royal Assent.

The remaining provisions of this Act shall come into operation on a day or days fixed by Proclamation.

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

to regulate the provision by Australia of international assistance in criminal matters when a request is made by a foreign country in respect of which powers may be exercised under this Act (whether or not in conjunction with other Australian laws); and

to facilitate the obtaining by Australia of international assistance in criminal matters.

Subject to this section, this Act applies to all foreign countries.

The regulations may provide that this Act applies to a foreign country subject to:

any mutual assistance treaty between that country and Australia that is referred to in the regulations; and

any multilateral mutual assistance treaty (being a treaty to which that country is a party) that is referred to in the regulations.

If the regulations provide, in accordance with subsection (2), that this Act applies to a foreign country subject to a mutual assistance treaty, then:

if the treaty relates wholly to the provision of assistance in criminal matters—this Act applies subject to the limitations, conditions, exceptions or qualifications that are necessary to give effect to the treaty in relation to that country; or

if the treaty relates in part to the provision of assistance in criminal matters—this Act applies subject to the limitations, conditions, exceptions or qualifications that are necessary to give effect, in relation to that country, to that part of the treaty that relates to the provision of assistance in criminal matters.

A request by a foreign country for assistance under this Act shall be refused if, in the opinion of the Attorney‑General:

the request relates to the investigation, prosecution or punishment of a person for an offence that is, or is by reason of the circumstances in which it is alleged to have been committed or was committed, a political offence; or

there are substantial grounds for believing that the request has been made with a view to investigating, prosecuting or punishing a person for a political offence; or

the request relates to a foreign order in relation to an offence that is, or is by reason of the circumstances in which it is alleged to have been committed or was committed, a political offence; or

there are substantial grounds for believing that the request was made for the purpose of investigating, prosecuting, punishing or otherwise causing prejudice to a person on account of the person’s race, sex, sexual orientation, religion, nationality or political opinions; or

there are substantial grounds for believing that, if the request was granted, a person would be in danger of being subjected to torture; or

the request relates to the investigation, prosecution or punishment of a person in respect of an act or omission that if it had occurred in Australia, would have constituted an offence under the military law of Australia but not also under the ordinary criminal law of Australia; or

both of the following subparagraphs are satisfied:

the request relates to a foreign order in relation to an offence;

an act or omission constituting the offence, had the act or omission occurred in Australia, would have constituted an offence under the military law of Australia but not also under the ordinary criminal law of Australia; or

the granting of the request would prejudice the sovereignty, security or national interest of Australia or the essential interests of a State or Territory.

A request by a foreign country for assistance under this Act must be refused if:

the request relates to the investigation, prosecution or punishment of:

a person arrested or detained on suspicion of having committed an offence; or

a person charged with, or convicted of, an offence; and

the offence is one in respect of which the death penalty may be imposed in the foreign country;

A request by a foreign country for assistance under this Act may be refused if the Attorney‑General:

believes that the provision of the assistance may result in the death penalty being imposed on a person; and

after taking into consideration the interests of international criminal co‑operation, is of the opinion that in the circumstances of the case the request should not be granted.

A request by a foreign country for assistance under this Act may be refused if, in the opinion of the Attorney‑General:

the request relates to the investigation, prosecution or punishment of a person in respect of an act or omission that, if it had occurred in Australia, would not have constituted an offence against Australian law at the time at which the request was received; or

both of the following subparagraphs are satisfied:

the request relates to a foreign order in relation to an offence;

an act or omission constituting the offence, had the act or omission occurred in Australia, would not have constituted an offence against Australian law at the time at which the request was received; or

the request relates to the investigation, prosecution or punishment of a person for an offence in a case where:

the person has been acquitted or pardoned by a competent tribunal or authority in the foreign country, or in Australia or another country; or

the person has undergone the punishment provided by the law of the foreign country, or of Australia or another country;

the provision of the assistance could prejudice an investigation or proceeding in relation to a criminal matter in Australia; or

the provision of the assistance would, or would be likely to, prejudice the safety of any person (whether in or outside Australia); or

the provision of the assistance would impose an excessive burden on the resources of the Commonwealth or of a State or Territory; or

it is appropriate, in all the circumstances of the case, that the assistance requested should not be granted.

A request for international assistance in a criminal matter that Australia is authorised to make under this Act may be made only by the Attorney‑General.

Subsection (1) does not prevent the Attorney‑General on behalf of Australia from requesting international assistance in a criminal matter other than assistance of a kind that may be requested under this Act.

A request by a foreign country for international assistance in a criminal matter may be made to the Attorney‑General or a person authorised by the Attorney‑General, in writing, to receive requests by foreign countries under this Act.

A request must be in writing and must include or be accompanied by the following information:

the name of the authority concerned with the criminal matter to which the request relates;

a description of the nature of the criminal matter and a statement setting out a summary of the relevant facts and laws;

a description of the purpose of the request and of the nature of the assistance being sought;

any information that may assist in giving effect to the request.

Where a request by a foreign country is made to a person authorised under subsection (1), the request shall be taken, for the purposes of this Act, to have been made to the Attorney‑General.

If a foreign country makes a request to a court in Australia for international assistance in a criminal matter:

the court must refer the request to the Attorney‑General; and

the request is then taken, for the purposes of this Act, to have been made to the Attorney‑General.

Australia may request the appropriate authority of a foreign country:

to arrange for:

evidence to be taken in the foreign country; or

a document or other article in the foreign country to be produced;

if subparagraph (a)(i) applies—to arrange for a tape recording to be made of the evidence to be taken; and

to arrange for the evidence (and if paragraph (aa) applies, the tape recording or a copy of it), document or other article to be sent to Australia.

To remove any doubt, it is stated that:

any evidence may be taken; or

any document or other article may be obtained;

the evidence could not have been taken; or

the document or other article could not have been obtained;

When making a request under subsection (1), Australia may also request that an opportunity be given for the person giving evidence, or producing the document or other article, to be examined or cross‑examined in person, or through a video link from Australia, by:

any party to the proceeding or that party’s legal representative; or

any person being investigated or that person’s legal representative.