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Mutual Assistance in Criminal Matters Act 1987

  • - C2011C00132
  • In force - Superseded Version
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Act No. 85 of 1987 as amended, taking into account amendments up to Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Act 2011
An Act relating to the provision and obtaining of international assistance in criminal matters
Administered by: Attorney-General's
Registered 08 Mar 2011
Start Date 03 Mar 2011
End Date 24 Jul 2011

Mutual Assistance in Criminal Matters Act 1987

Act No. 85 of 1987 as amended

This compilation was prepared on 7 March 2011
taking into account amendments up to Act No. 3 of 2011

The text of any of those amendments not in force
on that date is appended in the Notes section

The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section

Prepared by the Office of Legislative Drafting and Publishing,
Attorney‑General’s Department, Canberra

  

  

  


Contents

Part I—Preliminary                                                                                                              1

1............ Short title [see Note 1]........................................................................ 1

2............ Commencement [see Note 1].............................................................. 1

3............ Interpretation....................................................................................... 1

4............ Act to extend to external Territories.................................................. 11

4A......... Application of the Criminal Code..................................................... 11

5............ Objects of the Act............................................................................. 11

6............ Act not to limit other provision etc. of assistance.............................. 12

7............ Application of Act............................................................................. 12

8............ Refusal of assistance......................................................................... 13

9............ Assistance may be provided subject to conditions............................ 14

10.......... Request by Australia......................................................................... 15

11.......... Request by foreign country............................................................... 15

Part II—Assistance in relation to taking of evidence and production of documents or other articles   16

12.......... Requests by Australia....................................................................... 16

13.......... Requests by foreign countries for the taking of evidence or the production of documents       17

13A....... Requests by foreign countries for provision of material lawfully obtained               19

Part III—Assistance in relation to search and seizure                                   21

14.......... Requests by Australia for search and seizure.................................... 21

15.......... Requests by foreign countries for search and seizure—action by Attorney‑General                21

Part IV—Arrangements for persons to give evidence or assist investigations      23

Division 1—Requests by Australia                                                                      23

16.......... Requests for removal of certain persons to Australia........................ 23

17.......... Arrangements between Attorney‑General and State Ministers in relation to custody of certain persons  24

18.......... Custody of certain persons................................................................ 24

19.......... Immunities........................................................................................ 24

20.......... Status of person prosecuted for offence committed after departure from foreign country        26

21.......... Limitation on use of evidence or assistance given by certain persons 26

22.......... Conditions of imprisonment.............................................................. 27

23.......... Release of certain persons upon request by foreign country............. 27

25.......... Arrest of person who has escaped from custody.............................. 28

25A....... Aiding persons to escape etc............................................................. 28

Division 2—Requests by foreign countries                                                     29

26.......... Requests for giving of evidence at hearings in foreign countries...... 29

27.......... Requests for assistance in relation to investigations in foreign countries  32

28.......... Effect of removal to foreign country on prisoner’s term of imprisonment                35

Part V—Custody of persons in transit                                                                    36

29.......... Transit............................................................................................... 36

31.......... Arrest of person in transit................................................................. 36

31A....... Aiding persons to escape etc............................................................. 37

Part VI—Proceeds of crime                                                                                           38

Division 1—Requests by Australia                                                                      38

32.......... Requests for enforcement of orders.................................................. 38

33.......... Requests for issue of orders in foreign countries.............................. 38

Division 2—Requests by foreign countries                                                     39

Subdivision A—Enforcement of foreign orders                                              39

34.......... Requests for enforcement of foreign orders...................................... 39

34A....... Registration of foreign orders........................................................... 40

34B....... Enforcement of foreign forfeiture orders........................................... 41

34C....... Effect on third parties of registration of foreign forfeiture orders...... 42

34D....... Enforcement of foreign pecuniary penalty orders.............................. 43

34E........ Enforcement of foreign restraining orders......................................... 44

34F........ Faxed copies of foreign orders.......................................................... 45

34G....... Cancelling registration....................................................................... 45

34H....... Certain provisions of the Proceeds of Crime Act not to apply.......... 46

Subdivision B—Restraining orders relating to foreign criminal proceedings               46

34J........ Requests for restraining orders......................................................... 46

34K....... Applying for and making restraining orders..................................... 46

34L........ Excluding property from restraining orders...................................... 47

34M...... Cessation of restraining orders.......................................................... 48

Subdivision C—Production orders relating to foreign serious offences   48

34N....... Requests for production orders......................................................... 48

34P........ Applying for and making production orders..................................... 49

34Q....... Retaining produced documents......................................................... 49

Subdivision D—Notices to financial institutions                                              50

34R....... Giving notices to financial institutions.............................................. 50

34S........ Contents of notices to financial institutions....................................... 51

34T........ Protection from suits etc. for those complying with notices.............. 51

34U....... Making false statements in applications............................................ 52

34V....... Disclosing existence or nature of notice............................................ 52

34W...... Failing to comply with a notice......................................................... 52

Subdivision E—Monitoring orders relating to foreign serious offences   53

34X....... Requests for monitoring orders......................................................... 53

34Y....... Applying for and making monitoring orders..................................... 54

34Z........ Passing on information given under monitoring orders.................... 54

Subdivision F—Search warrants relating to foreign serious offences       54

34ZA..... Requests for search warrants............................................................ 54

34ZB..... Applying for and issuing search warrants......................................... 55

34ZC..... Seizure of other property and documents.......................................... 55

34ZD..... Return of seized property to third parties.......................................... 56

34ZE..... Dealing with seized property (other than property‑tracking documents)  57

34ZF..... Dealing with seized property‑tracking documents............................. 59

Division 3—Provisions relating to registered foreign restraining orders            60

35.......... Court may order Official Trustee to take custody and control of property                60

35A....... Procedural matters............................................................................. 60

35B....... Ancillary orders................................................................................ 60

35C....... Dealing with restrained property....................................................... 61

35D....... Money not to be paid into the Common Investment Fund................ 61

35E........ Undertakings..................................................................................... 61

35F........ Order to discharge certain registered foreign pecuniary penalty orders 62

35G....... Official Trustee to carry out orders................................................... 63

35H....... Discharge of person’s liability under foreign pecuniary penalty order 63

35J........ Creation of charge on property.......................................................... 64

35K....... When the charge ceases to have effect............................................... 64

35L........ Registering charges........................................................................... 65

35M...... When order ceases to be in force....................................................... 65

Part VIIA—Search, seizure and powers of arrest                                           66

Division 1—General                                                                                                    66

38A....... Object of Part.................................................................................... 66

Division 2—Issue of search warrants                                                                67

38B....... Application for search warrant.......................................................... 67

38C....... When search warrants may be issued................................................ 68

38D....... Content of warrants........................................................................... 69

38E........ The things authorised by a search warrant in relation to premises..... 71

38F........ The things authorised by a search warrant in relation to a person..... 72

38G....... Restrictions on personal searches...................................................... 72

38H....... Warrants may be issued by telephone etc.......................................... 73

38I......... Formalities relating to warrants issued by telephone etc.................... 73

Division 3—Execution of search warrants                                                     75

38J........ Availability of assistance and use of force in executing a warrant..... 75

38K....... Copy of warrant to be shown to occupier etc.................................... 75

38L........ Specific powers available to officers executing warrants.................. 76

38M...... Use of equipment to examine or process things................................ 76

38N....... Use of electronic equipment at premises........................................... 77

38O....... Compensation for damage to electronic equipment........................... 79

38P........ Copies of seized things to be provided.............................................. 79

38Q....... Occupier entitled to watch search...................................................... 80

38R....... Receipts for things seized under warrant etc..................................... 80

Division 4—Arrest and related matters                                                           81

38S........ Power to enter premises to arrest person........................................... 81

38T........ Use of force in making arrest............................................................ 81

38U....... Persons to be informed of grounds of arrest..................................... 82

38V....... Power to search an arrested person................................................... 82

Division 5—General                                                                                                    84

38W...... Conduct of ordinary searches and frisk searches.............................. 84

38X....... Announcement before entry.............................................................. 84

38Y....... Offence for making false statements in warrants............................... 84

38Z........ Offences relating to telephone warrants............................................ 85

38ZA..... Retention of things seized................................................................. 85

38ZB..... Arrest of person released on bail....................................................... 86

Part VIII—Miscellaneous                                                                                                87

39.......... Arrangements with Governors of States and Administrator of Norfolk Island        87

39A....... Requests by Attorney‑General on behalf of a defendant................... 87

39B....... Certificate by Attorney‑General if foreign country refuses request made under section 39A   89

40.......... Delegation......................................................................................... 89

41.......... Jurisdiction of courts......................................................................... 89

42.......... Evidence............................................................................................ 89

43.......... Authentication of documents............................................................. 90

43A....... Admissibility of certain documents—requests under the Money‑Laundering Convention       90

43B....... Restriction on use of information etc................................................. 91

43C....... Requests for international assistance not to be disclosed................... 91

44.......... Regulations....................................................................................... 92

Notes                                                                                                                                             93


An Act relating to the provision and obtaining of international assistance in criminal matters

Part IPreliminary

  

1  Short title [see Note 1]

                   This Act may be cited as the Mutual Assistance in Criminal Matters Act 1987.

2  Commencement [see Note 1]

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

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

3  Interpretation

             (1)  In this Act, unless the contrary intention appears:

account has the same meaning as in the Proceeds of Crime Act.

agent has the same meaning as in the Proceeds of Crime Act.

ancillary offence, in relation to an offence (in this definition called the main offence), means:

                     (a)  an offence of conspiring to commit the main offence; or

                     (b)  an offence of aiding, abetting, inciting, counselling or procuring, or being in any way knowingly concerned in, the commission of the main offence; or

                     (c)  an offence of receiving or assisting another person in order to enable the person to escape punishment for, or to dispose of the proceeds of, the main offence; or

                     (d)  an offence of attempting to commit the main offence.

approved form means a form approved by the Attorney‑General in writing for the purposes of the provision in which the expression occurs.

Australia, when used in a geographical sense, includes the external Territories.

Australian forfeiture order means:

                     (a)  a forfeiture order within the meaning of a proceeds of crime law; or

                    (aa)  a declaration made under section 95 of the Proceeds of Crime Act; or

                   (ab)  a declaration made under subsection 30(8A) of the Proceeds of Crime Act 1987; or

                     (b)  an interstate forfeiture order within the meaning of the Proceeds of Crime Act; or

                     (c)  an order or declaration, made under Australian law, that:

                              (i)  orders the forfeiture of property in respect of an offence against Australian law or declares that property has been forfeited in respect of an offence against Australian law; and

                             (ii)  is, in accordance with the regulations, to be taken to be an Australian forfeiture order for the purposes of this Act.

Australian law means the laws of the Commonwealth, the States and the Territories.

Australian literary proceeds order means:

                     (a)  a literary proceeds order within the meaning of the Proceeds of Crime Act; or

                     (b)  an order, made under Australian law, that:

                              (i)  imposes a pecuniary penalty on a person in respect of an offence against Australian law; and

                             (ii)  is, in accordance with the regulations, to be taken to be an Australian literary proceeds order for the purposes of this Act.

Australian pecuniary penalty order means:

                     (a)  a pecuniary penalty order within the meaning of a proceeds of crime law; or

                     (b)  an interstate pecuniary penalty order within the meaning of the Proceeds of Crime Act; or

                     (c)  an order, made under Australian law, that:

                              (i)  imposes a pecuniary penalty on a person in respect of an offence against Australian law; and

                             (ii)  is, in accordance with the regulations, to be taken to be an Australian pecuniary penalty order for the purposes of this Act.

Australian restraining order means:

                     (a)  a restraining order within the meaning of a proceeds of crime law (other than a restraining order made by virtue of section 59 of the Proceeds of Crime Act 1987 or section 34K of this Act); or

                     (b)  an interstate restraining order within the meaning of the Proceeds of Crime Act; or

                     (c)  an order, made under Australian law, that:

                              (i)  restrains a particular person, or all persons, from dealing with property; and

                             (ii)  is, in accordance with the regulations, to be taken to be an Australian restraining order for the purposes of this Act.

authorised officer has the same meaning as in the Proceeds of Crime Act.

committal proceeding, in relation to a foreign offence, includes:

                     (a)  any proceeding to determine whether a person should be tried for the offence (whether or not a particular person is specified at the commencement of that proceeding as the person in relation to whom the determination is to be made); and

                     (b)  a proceeding that is, in accordance with the regulations, to be taken to be a committal proceeding for the purposes of this Act.

Confiscated Assets Account means the account established under section 295 of the Proceeds of Crime Act.

criminal investigation means an investigation into an offence (whether the offence is believed to have been committed, to be being committed or to be likely to be committed).

criminal matter includes:

                     (a)  a criminal matter relating to revenue (including taxation and customs duties);

                     (b)  a criminal matter relating to foreign exchange control;

                     (c)  a matter relating to the forfeiture or confiscation of property in respect of an offence;

                     (d)  a matter relating to the imposition or recovery of a pecuniary penalty in respect of an offence; and

                     (e)  a matter relating to the restraining of dealings in property, or the freezing of assets, that may be forfeited or confiscated, or that may be needed to satisfy a pecuniary penalty imposed, in respect of an offence;

whether arising under Australian law or a law of a foreign country.

criminal proceeding, in relation to an offence, means a trial of a person for the offence or a committal proceeding in respect of the offence.

DPP means the Director of Public Prosecutions.

enforcement agency has the same meaning as in the Proceeds of Crime Act.

evidential material means a thing relevant to a proceeding or investigation, including such a thing in electronic form.

executing officer, in relation to a warrant, means:

                     (a)  the police officer named in the warrant, by the Magistrate who issued the warrant, as being responsible for executing the warrant; or

                     (b)  if that police officer does not intend to be present at the execution of the warrant—another police officer whose name has been written in the warrant by the police officer so named; or

                     (c)  another police officer whose name has been written in the warrant by the police officer last named in the warrant.

facsimile copy means a copy obtained or sent by fax.

fax means facsimile transmission.

federal prisoner means a person who is being held in custody pending trial for or sentence for, or is under a sentence of imprisonment for, an offence against a law of the Commonwealth or of a Territory, but does not include a person who is at large after having escaped from lawful custody.

financial institution has the same meaning as in the Proceeds of Crime Act.

foreign confiscation proceedings means proceedings in a foreign country in respect of the making of a foreign forfeiture order or a foreign pecuniary penalty order.

foreign forfeiture order means:

                     (a)  an order, made under the law of a foreign country, for the forfeiture of property in respect of an offence against the law of that country; or

                     (b)  a declaration, made under the law of a foreign country, evidencing forfeiture of property under the law of that country.

foreign law immunity certificate means a certificate given, or a declaration made, by a foreign country or under a law of a foreign country, certifying or declaring that, under the law of the foreign country, persons generally or a specified person could or could not, either generally or in specified proceedings and either generally or in specified circumstances, be required:

                     (a)  to answer a specified question; or

                     (b)  to produce a specified document.

foreign offence means an offence against a law of a foreign country.

foreign order means:

                     (a)  a foreign forfeiture order; or

                     (b)  a foreign pecuniary penalty order; or

                     (c)  a foreign restraining order.

foreign pecuniary penalty order means an order, made under the law of a foreign country, imposing a pecuniary penalty in respect of an offence against the law of that country, but does not include an order for the payment of a sum of money by way of compensation, restitution or damages to an injured person.

foreign prisoner means a person who is being held in custody pending trial for or sentence for, or is under a sentence of imprisonment for, an offence against a law of a foreign country, but does not include a person who is at large after having escaped from lawful custody.

foreign restraining order means an order:

                     (a)  made under the law of a foreign country in respect of an offence against the law of that country; and

                     (b)  which is, or purports to be, made for the purpose of preserving property (whether or not the order also purports to do other things) including an order:

                              (i)  restraining a particular person or persons from dealing with the property; or

                             (ii)  freezing the property; or

                            (iii)  directing the seizure of the property; or

                            (iv)  directing that the property be taken into official custody or control.

foreign serious offence means a serious offence against a law of a foreign country.

frisk search means:

                     (a)  a search of a person conducted by quickly running the hands over the person’s outer clothes; and

                     (b)  an examination of anything worn or carried by the person that is conveniently and voluntarily removed by the person.

Governor means:

                     (a)  in relation to the Australian Capital Territory—the Chief Minister of the Territory; or

                     (b)  in relation to the Northern Territory—the Administrator of the Territory.

instrument, in relation to an offence, has the same meaning as in the Proceeds of Crime Act.

interest, in relation to property, has the same meaning as in the Proceeds of Crime Act.

Magistrate means:

                     (a)  a Magistrate of a State in respect of whom an arrangement under section 39 is in force; or

                     (b)  a Magistrate of Norfolk Island in respect of whom an arrangement under section 39 is in force; or

                     (c)  a Magistrate of an external Territory (other than Norfolk Island).

Money‑Laundering Convention means the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime, done at Strasbourg on 8 November 1990.

money laundering offence, in relation to the proceeds of a serious offence, means an offence that is committed by a person:

                     (a)  engaging, directly or indirectly, in a transaction that involves money, or other property, that is proceeds of the offence; or

                     (b)  receiving, possessing, concealing, disposing of or bringing into a country money, or other property, that is proceeds of the offence;

when the person knows that, or is reckless of whether or not, the money or other property is proceeds of a serious offence.

mutual assistance treaty means a treaty relating in whole or in part to the provision of assistance in criminal matters.

narcotic substance has the same meaning as in the Proceeds of Crime Act.

offence includes an offence against a law relating to taxation, customs duties or other revenue matters or relating to foreign exchange control.

offence under the ordinary criminal law of Australia means an offence against Australian law other than an offence under the military law of Australia.

officer, in relation to a financial institution, has the same meaning as in the Proceeds of Crime Act.

officer assisting, in relation to a warrant, means:

                     (a)  a person who is a police officer and who is assisting in executing the warrant; or

                     (b)  a person who is not a police officer and who has been authorised by the relevant executing officer to assist in executing the warrant.

Official Trustee means the Official Trustee in Bankruptcy.

ordinary search means a search of a person or of articles in the possession of a person that may include:

                     (a)  requiring the person to remove his or her overcoat, coat or jacket and any gloves, shoes and headgear; and

                     (b)  an examination of those items.

police officer means a member or special member of the Australian Federal Police or a member of the police force of a State or Territory.

political offence has the same meaning as in the Extradition Act 1988, but does not include an offence constituted by conduct that, by a mutual assistance treaty (not being a bilateral treaty) in relation to the relevant country or any country, may be the subject of a request for mutual assistance, being an offence declared by regulations for the purposes of this paragraph not to be a political offence in relation to the country or all countries.

premises includes:

                     (a)  a structure, building or vehicle;

                     (b)  a place (whether enclosed or built upon or not); and

                     (c)  a part of premises (including premises of a kind referred to in paragraph (a) or (b)).

prison includes a gaol, lock‑up or other place of detention.

proceeding, in relation to a criminal matter, includes a proceeding before a judicial officer or a jury for the purpose of:

                     (a)  gathering evidential material that may lead to the laying of a criminal charge; or

                     (b)  assessing evidential material in support of the laying of a criminal charge.

proceeds, in relation to an offence, has the same meaning as in the Proceeds of Crime Act.

proceeds jurisdiction has the same meaning as in the Proceeds of Crime Act.

Proceeds of Crime Act means the Proceeds of Crime Act 2002.

proceeds of crime law means:

                     (a)  the Proceeds of Crime Act 2002; or

                     (b)  the Proceeds of Crime Act 1987.

property has the same meaning as in the Proceeds of Crime Act.

property‑tracking document has the same meaning as in the Proceeds of Crime Act.

public authority of a foreign country means any authority or body constituted by or under a law of a foreign country.

recently used vehicle, in relation to a search of a person, means a vehicle that the person has operated or occupied at any time within 24 hours before the search commenced.

related foreign serious offence: a foreign serious offence is related to another foreign serious offence if the physical elements of the 2 offences are substantially the same acts or omissions.

relevant investigation, in relation to a search warrant issued under Division 2 of Part VIIA, means the investigation to which the evidential material authorised to be searched and seized under the warrant relates.

relevant proceeding, in relation to a search warrant issued under Division 2 of Part VIIA, means the proceeding to which the evidential material authorised to be searched and seized under the warrant relates.

search warrant means a warrant issued under section 38C.

seizable item means anything that would present a danger to a person or that could be used to assist a person to escape from lawful custody.

serious offence means an offence the maximum penalty for which is death, or imprisonment for not less than 12 months.

State includes:

                     (a)  the Australian Capital Territory; and

                     (b)  the Northern Territory.

State Minister means:

                     (a)  in relation to a State other than the Australian Capital Territory or the Northern Territory—a Minister of the Crown of that State; or

                     (b)  in relation to the Australian Capital Territory or the Northern Territory—a Minister of that Territory.

State prisoner means a person who is being held in custody pending trial for or sentence for, or under a sentence of imprisonment for, an offence against a law of a State, but does not include a person who is at large after having escaped from lawful custody.

strip search means a search of a person or of articles in the possession of a person that may include:

                     (a)  requiring the person to remove all of his or her clothes; and

                     (b)  an examination of the person’s body (but not of the person’s body cavities) and of those clothes.

Territory does not include:

                     (a)  the Australian Capital Territory; or

                     (b)  the Northern Territory.

treaty includes a convention, protocol or agreement.

trial, in relation to a foreign offence, includes any proceeding to determine whether a person should be convicted of the offence.

vehicle includes any means of transport.

video link means a video and sound system that enables persons assembled in a place in a country to see, hear and talk to persons assembled in a place in another country.

             (2)  For the purposes of this Act:

                     (a)  a colony, territory or protectorate of a foreign country;

                     (b)  a territory for the international relations of which a foreign country is responsible; and

                     (c)  a ship or aircraft of, or registered in, a foreign country;

shall, unless the contrary intention appears, be deemed to be part of that foreign country.

             (3)  Subsection (2) does not apply to a colony, territory or protectorate that is itself a foreign country to which this Act applies.

             (4)  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.

             (5)  A reference in this Act to an Australian criminal offence is a reference to an offence against a law of the Commonwealth or of a Territory.

             (6)  Without prejudice to its effect by virtue of subsection (5), this Act has effect as if a reference in this Act to an Australian criminal offence included a reference to an offence against a law of a State.

4  Act to extend to external Territories

                   This Act extends to every external Territory.

4A  Application of the Criminal Code

                   Chapter 2 of the Criminal Code applies to all offences against this Act.

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

5  Objects of the Act

                   The objects of this Act are:

                     (a)  to regulate the provision by Australia of international assistance in criminal matters when a request is made by a foreign country for any of the following:

                              (i)  the taking of evidence, or the production of any document or other article, for the purposes of a proceeding in the foreign country;

                             (ii)  the issue of a search warrant and the seizure of any thing relevant to a proceeding or investigation in the foreign country;

                            (iii)  the forfeiture or confiscation of property in respect of a foreign serious offence;

                            (iv)  the recovery of pecuniary penalties in respect of a foreign serious offence;

                             (v)  the restraining of dealings in property that may be forfeited or confiscated, or that may be needed to satisfy pecuniary penalties imposed, because of the commission of a foreign serious offence; and

                     (b)  to facilitate the provision by Australia of international assistance in criminal matters when a request is made by a foreign country for the making of arrangements for a person who is in Australia to travel to the foreign country to give evidence in a proceeding or to give assistance in relation to an investigation; and

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

6  Act not to limit other provision etc. of assistance

                   This Act does not prevent the provision or obtaining of international assistance in criminal matters other than assistance of a kind that may be provided or obtained under this Act.

7  Application of Act

             (1)  Subject to this section, this Act applies to all foreign countries.

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

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

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

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

                     (a)  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

                     (b)  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.

8  Refusal of assistance

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

                     (a)  the request relates to the 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

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

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

                     (d)  the request relates to the 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

                     (e)  the granting of the request would prejudice the sovereignty, security or national interest of Australia or the essential interests of a State or Territory; or

                      (f)  the request relates to the prosecution 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 has undergone the punishment provided by the law of that country, in respect of that offence or of another offence constituted by the same act or omission as that offence.

          (1A)  A request by a foreign country for assistance under this Act must be refused if it relates to the prosecution or punishment of a person charged with, or convicted of, an offence in respect of which the death penalty may be imposed in the foreign country, unless the Attorney‑General is of the opinion, having regard to the special circumstances of the case, that the assistance requested should be granted.

          (1B)  A request by a foreign country for assistance under this Act may be refused if the Attorney‑General:

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

                     (b)  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.

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

                     (a)  the request relates to the 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; or

                     (b)  the request relates to the prosecution or punishment of a person in respect of an act or omission that occurred, or is alleged to have occurred, outside the foreign country and a similar act or omission occurring outside Australia in similar circumstances would not have constituted an offence against Australian law; or

                     (c)  the request relates to the prosecution or punishment of a person in respect of an act or omission where, if it had occurred in Australia at the same time and had constituted an offence against Australian law, the person responsible could no longer be prosecuted by reason of lapse of time or any other reason; or

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

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

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

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

9  Assistance may be provided subject to conditions

                   Assistance under this Act may be provided to a foreign country subject to such conditions as the Attorney‑General determines.

10  Request by Australia

             (1)  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.

             (2)  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.

11  Request by foreign country

             (1)  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.

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

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

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

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

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

However, a failure to comply with this subsection is not a ground for refusing the request.

             (3)  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.

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

                     (a)  the court must refer the request to the Attorney‑General; and

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


 

Part IIAssistance in relation to taking of evidence and production of documents or other articles

  

12  Requests by Australia

             (1)  Australia may request the appropriate authority of a foreign country:

                     (a)  to arrange for:

                              (i)  evidence to be taken in the foreign country in accordance with the law of that country; or

                             (ii)  a document or other article in the foreign country to be produced in accordance with the law of that country;

                            for the purposes of a proceeding or investigation relating to a criminal matter in Australia; and

                     (b)  to arrange for the evidence, document or other article to be sent to Australia.

             (2)  To remove any doubt, it is stated that:

                     (a)  any evidence may be taken; or

                     (b)  any document or other article may be obtained;

in the foreign country even though, under Australian law:

                     (c)  the evidence could not have been taken; or

                     (d)  the document or other article could not have been obtained;

by using in the circumstances processes similar to those used in the foreign country.

             (3)  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, through a video link, from Australia by:

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

                     (b)  any person being investigated or that person’s legal representative.

13  Requests by foreign countries for the taking of evidence or the production of documents

             (1)  Where a request is made by a foreign country (requesting country) that:

                     (a)  evidence be taken in Australia; or

                     (b)  documents or other articles in Australia be produced;

for the purposes of a proceeding in relation to a criminal matter in the requesting country or another foreign country, the Attorney‑General may, in his or her discretion, by writing in accordance with the approved form, authorise the taking of the evidence or the production of the documents or other articles, and the transmission of the evidence, documents or other articles to the requesting country.

             (2)  Where the Attorney‑General authorises the taking of evidence or the production of documents or other articles under subsection (1):

                     (a)  in the case of the taking of evidence—a Magistrate may take the evidence on oath of each witness appearing before the Magistrate to give evidence in relation to the matter, and a Magistrate who takes any such evidence shall:

                              (i)  cause the evidence to be put in writing and certify that the evidence was taken by the Magistrate; and

                             (ii)  cause the writing so certified to be sent to the Attorney‑General; or

                     (b)  in the case of the production of documents or other articles—a Magistrate may, subject to subsection (6), require the production of the documents or other articles and, where the documents or other articles are produced, the Magistrate shall send the documents, or copies of the documents certified by the Magistrate to be true copies, or the other articles, to the Attorney‑General.

             (3)  The evidence of such a witness may be taken in the presence or absence of the person to whom the proceeding in the requesting country relates or of his or her legal representative (if any).

             (4)  The Magistrate conducting a proceeding under subsection (2) may permit:

                     (a)  the person to whom the proceeding in the requesting country relates;

                     (b)  any other person giving evidence or producing documents or other articles at the proceeding before the Magistrate; and

                     (c)  the relevant authority of the requesting country;

to have legal representation at the proceeding before the Magistrate.

          (4A)  If the requesting country has so requested, the Magistrate conducting a proceeding under subsection (2) may permit:

                     (a)  any person to whom the proceeding in the requesting country relates or that person’s legal representative; or

                     (b)  the legal representative of the relevant authority of the requesting country;

to examine or cross‑examine, through a video link, from the requesting country any person giving evidence or producing a document or other article, at the proceeding.

             (5)  The certificate by the Magistrate under subsection (2) shall state whether, when the evidence was taken or the documents or other articles were produced, any of the following persons were present:

                     (a)  the person to whom the proceeding in the requesting country relates or his or her legal representative (if any);

                     (b)  any other person giving evidence or producing documents or other articles or his or her legal representative (if any).

             (6)  Subject to subsections (7) and (8), the laws of each State or Territory with respect to the compelling of persons to attend before a Magistrate, and to give evidence, answer questions and produce documents or other articles, upon the hearing of a charge against a person for an offence against the law of that State or Territory apply, so far as they are capable of application, with respect to the compelling of persons to attend before a Magistrate, and to give evidence, answer questions and produce documents or other articles, for the purposes of this section.

             (7)  For the purposes of this section, the person to whom the proceeding in the requesting country relates is competent but not compellable to give evidence.

             (8)  For the purposes of this section, a person who is required to give evidence, or produce documents or other articles, for the purposes of a proceeding in relation to a criminal matter in the requesting country or another foreign country, is not compellable to answer a question, or produce a document or article, that the person is not compellable to answer or produce, as the case may be, in the proceeding in that country.

             (9)  A duly authenticated foreign law immunity certificate is admissible in proceedings under this section as prima facie evidence of the matters stated in the certificate.

           (10)  Subsection (8) does not apply in a case where its application would be inconsistent with a provision of a mutual assistance treaty between Australia and the requesting country concerned.

13A  Requests by foreign countries for provision of material lawfully obtained

             (1)  If:

                     (a)  a foreign country (the requesting country) has commenced an investigation into, or proceedings in relation to, a serious offence against the laws of that country; and

                     (b)  that foreign country requests the provision of material relevant to that investigation or those proceedings; and

                     (c)  the Attorney‑General is satisfied that the material requested is:

                              (i)  material lawfully obtained by an enforcement agency in Australia; and

                             (ii)  material lawfully in the possession of that enforcement agency;

the Attorney‑General may, by writing in accordance with the approved form, authorise the provision of that material to the requesting country.

             (2)  Subsection (1) does not permit the Attorney‑General to authorise the provision to the requesting country of material obtained through the use of a surveillance device unless the request relates to an investigation into, or proceedings in relation to, a serious offence against the laws of that country that is punishable by a maximum term of imprisonment of 3 years or more, by imprisonment for life or by the death penalty.

             (3)  An authorisation by the Attorney‑General under subsection (1) may include a direction to an authorised officer of the enforcement agency having possession of the material about how the material is to be provided to that foreign country.

             (4)  In authorising the provision of material to a foreign country, the Attorney‑General may specify the uses to which that material can be put.

             (5)  An authorisation by the Attorney‑General under subsection (1) is not a legislative instrument for the purposes of the Legislative Instruments Act 2003.

             (6)  In this section:

authorised officer includes a law enforcement officer within the meaning of section 6 of the Surveillance Devices Act 2004.

enforcement agency includes a law enforcement agency within the meaning of section 6 of the Surveillance Devices Act 2004.

material lawfully obtained by an enforcement agency in Australia includes:

                     (a)  material obtained from individuals or entities by consent; and

                     (b)  material obtained by warrant or the exercise of a coercive power by a court in Australia for the purposes of a domestic investigation or prosecution;

but does not include material obtained under the Telecommunications (Interception and Access) Act 1979.


 

Part IIIAssistance in relation to search and seizure

  

14  Requests by Australia for search and seizure

             (1)  This section applies to a proceeding or investigation relating to a criminal matter involving a serious offence against an Australian law if there are reasonable grounds to believe that a thing relevant to the proceeding or investigation may be located in a foreign country.

             (2)  If this section applies to a proceeding or investigation, Australia may request the appropriate authority of the foreign country:

                     (a)  to obtain a warrant or other instrument that, in accordance with the law of the foreign country, authorises:

                              (i)  a search for a thing relevant to the proceeding or investigation; and

                             (ii)  if such a thing, or any other thing that is or may be relevant to the proceeding or investigation is found as a result of the search—the seizure of that thing; and

                     (b)  to arrange for the thing that has been seized to be sent to Australia.

             (3)  If the appropriate authority of the foreign country has obtained any thing relevant to the proceeding or investigation by means of a process authorised by the law of that country other than the issue (as requested by Australia) of a warrant or other instrument authorising the seizure of the thing, the thing:

                     (a)  is not inadmissible in evidence in the proceeding; or

                     (b)  is not precluded from being used for the purposes of the investigation;

on the ground alone that it was obtained otherwise than in accordance with the request.

15  Requests by foreign countries for search and seizure—action by Attorney‑General

             (1)  Where:

                     (a)  a proceeding or investigation relating to a criminal matter involving a serious offence has commenced in a foreign country;

                     (b)  there are reasonable grounds to believe that evidential material relating to the investigation or proceeding is located in Australia; and

                     (c)  the foreign country requests the Attorney‑General to arrange for the evidential material to be obtained;

the Attorney‑General may, in his or her discretion, authorise a police officer, in writing, to apply to a Magistrate of the State or Territory in which the evidential material is believed to be located for a search warrant in respect of the evidential material.

Note:          Divisions 2 and 3 of Part VIIA make provision relating to applications for, and the issue and execution of, search warrants requested by foreign countries.


 

Part IVArrangements for persons to give evidence or assist investigations

Division 1Requests by Australia

16  Requests for removal of certain persons to Australia

             (1)  Where:

                     (a)  a proceeding relating to a criminal matter has commenced in Australia; and

                     (b)  the Attorney‑General is of the opinion that a person who is in a foreign country:

                              (i)  is a foreign prisoner;

                             (ii)  is capable of giving evidence relevant to the proceeding; and

                            (iii)  has given his or her consent to being removed to Australia for the purpose of giving evidence in the proceeding;

Australia may request the foreign country to authorise the attendance of the person at a hearing in connection with the proceeding.

             (2)  Where:

                     (a)  an investigation relating to a criminal matter has commenced in Australia; and

                     (b)  the Attorney‑General is of the opinion that a person who is in a foreign country:

                              (i)  is a foreign prisoner;

                             (ii)  is capable of giving assistance in relation to the investigation; and

                            (iii)  has given his or her consent to being removed to Australia for the purposes of giving assistance in relation to the investigation;

Australia may request the foreign country to authorise the removal of the person to Australia for the purpose of giving assistance in relation to the investigation.

             (3)  If a request is made under subsection (1) or (2), the Attorney‑General may make arrangements with an appropriate authority of the foreign country for the purposes of:

                     (a)  the removal of the person to Australia;

                     (b)  the custody of the person while in Australia;

                     (c)  the return of the person to the foreign country; and

                     (d)  other relevant matters.

17  Arrangements between Attorney‑General and State Ministers in relation to custody of certain persons

             (1)  The Attorney‑General may make arrangements with a State Minister in relation to the keeping of persons who are in Australia pursuant to requests under section 16 in custody in the State.

             (2)  The Attorney‑General may arrange with a State Minister with whom an arrangement is in force under subsection (1) for the variation or revocation of the arrangement.

18  Custody of certain persons

                   Where:

                     (a)  a person is to be brought to Australia from a foreign country pursuant to a request under section 16; and

                     (b)  the foreign country requests that the person be kept in custody while he or she is in Australia;

the person shall, while the person is in Australia or travelling to or from Australia pursuant to the request, be kept in such custody as the Attorney‑General directs in writing.

19  Immunities

             (1)  Where a person is in Australia:

                     (a)  pursuant to a request under section 16; or

                     (b)  to give evidence in a proceeding, or to give assistance in relation to an investigation, pursuant to a request made by or on behalf of the Attorney‑General (not being a request under section 16) for international assistance in a criminal matter;

the person, subject to subsection (2), shall not:

                     (c)  be detained, prosecuted or punished in Australia for any offence that is alleged to have been committed, or that was committed, before the person’s departure from the foreign country pursuant to the request;

                     (d)  be subjected to any civil suit in respect of any act or omission of the person that is alleged to have occurred, or that occurred, before the person’s departure from the foreign country pursuant to the request, being a civil suit to which the person could not be subjected if the person were not in Australia;

                     (e)  be required to give evidence in any proceeding in Australia other than the proceeding to which the request relates (if any).

                      (f)  be required, in the proceeding to which the request relates (if any), to answer any question that the person would not be required to answer in a proceeding in the foreign country relating to a criminal matter; or

                     (g)  be required, in the proceeding to which the request relates (if any), to produce any document or article that the person would not be required to produce in a proceeding in the foreign country relating to a criminal matter.

          (1A)  A duly authorised foreign law immunity certificate is admissible in proceedings as prima facie evidence of the matters stated in the certificate.

             (2)  Subsection (1) ceases to apply to a person if:

                     (a)  the person has left Australia; or

                     (b)  the person has had the opportunity of leaving Australia and has remained in Australia otherwise than for:

                              (i)  the purpose to which the request relates;

                             (ii)  the purpose of giving evidence in a proceeding in Australia certified by the Attorney‑General, in writing, to be a proceeding in which it is desirable that the person give evidence; or

                            (iii)  the purpose of giving assistance in relation to an investigation in Australia certified by the Attorney‑General, in writing, to be an investigation in relation to which it is desirable that the person give assistance.

          (2A)  Paragraph (1)(f) or (g) does not apply in a case where its application would be inconsistent with a provision of a mutual assistance treaty between Australia and the foreign country concerned.

             (3)  A certificate given by the Attorney‑General for the purposes of subparagraph (2)(b)(ii) or (iii) has effect from the day specified in the certificate (which may be a day before the day on which the certificate is given).

             (4)  This section binds the Crown in right of the Commonwealth, of each of the States and of Norfolk Island.

20  Status of person prosecuted for offence committed after departure from foreign country

             (1)  Where a person has come to Australia pursuant to a request under section 16, the person shall be taken, for the purposes of this Act, to be in Australia pursuant to the request during any period during which the person remains in Australia for the purpose of being tried for an Australian criminal offence that the person is alleged to have committed after the person’s departure from the foreign country.

             (2)  Without limiting the generality of subsection (1), the person shall be kept in such custody as the Attorney‑General directs under section 18.

21  Limitation on use of evidence or assistance given by certain persons

             (1)  Where:

                     (a)  a person is in Australia to give evidence in a proceeding:

                              (i)  because of a request under subsection 16(1); or

                             (ii)  because of a request (other than a request under that subsection) made by the Attorney‑General for international assistance in a criminal matter; and

                     (b)  the person has given evidence in the proceeding to which the request related or in a proceeding certified by the Attorney‑General under subparagraph 19(2)(b)(ii) in relation to the person;

that evidence shall not be admitted or otherwise used in any prosecution of the person for an offence against Australian law, other than the offence of perjury in relation to the giving of that evidence.

          (1A)  If:

                     (a)  a person is in Australia to give assistance in relation to an investigation:

                              (i)  because of a request under subsection 16(2); or

                             (ii)  because of a request (other than a request under that subsection) made by the Attorney‑General for international assistance in a criminal matter; and

                     (b)  the person has given assistance in relation to the investigation to which the request related or in relation to an investigation certified by the Attorney‑General under subparagraph 19(2)(b)(iii) in relation to the person;

anything said or done by the person when giving the assistance is not to be admitted or otherwise used in any prosecution of the person for an offence against Australian law.

             (2)  This section binds the Crown in right of the Commonwealth, of each of the States and of Norfolk Island.

22  Conditions of imprisonment

                   The laws of a State or Territory with respect to:

                     (a)  the conditions of imprisonment of persons imprisoned in that State or Territory for offences against the law of that State or Territory; and

                     (b)  the treatment of any such persons during imprisonment; and

                     (c)  the transfer of any such persons from prison to prison;

apply, so far as they are capable of application, in relation to a person who is in Australia pursuant to a request under section 16 and who has been committed to a prison in that State or Territory in accordance with a direction of the Attorney‑General under this Act.

23  Release of certain persons upon request by foreign country

                   Where:

                     (a)  a person is being held in custody in accordance with a direction of the Attorney‑General under section 18; and

                     (b)  the foreign country from which the person has been brought requests the release of the person from custody;

the Attorney‑General shall direct that the person be released from custody.

25  Arrest of person who has escaped from custody

             (1)  Any police officer may, without warrant, arrest a person, if the police officer has reasonable grounds to believe that the person:

                     (a)  has been brought to Australia pursuant to a request under section 16; and

                     (b)  has escaped from lawful custody while in Australia pursuant to the request.

             (2)  The police officer must, as soon as practicable, take the person before a Magistrate.

             (3)  If the Magistrate is satisfied that the person has escaped from lawful custody, the Magistrate may issue a warrant authorising any police officer to return the person to lawful custody.

25A  Aiding persons to escape etc.

                   Sections 46, 46A, 47A, 47C and 48 of the Crimes Act 1914 have effect as if:

                     (a)  arrest under section 25 of this Act were arrest in respect of an offence against a law of the Commonwealth; and

                     (b)  custody while in Australia under a request under section 16 of this Act were custody in respect of an offence against a law of the Commonwealth.


 

Division 2Requests by foreign countries

26  Requests for giving of evidence at hearings in foreign countries

             (1)  Where:

                     (a)  a proceeding relating to a criminal matter has commenced in a foreign country;

                     (b)  the foreign country requests the attendance at a hearing in connection with the proceeding of a federal prisoner or a State prisoner who is in Australia (whether or not in custody);

                     (c)  there are reasonable grounds to believe that the prisoner is capable of giving evidence relevant to the proceeding; and

                     (d)  the Attorney‑General is satisfied that:

                              (i)  the prisoner has consented to giving evidence in the foreign country; and

                             (ii)  the foreign country has given adequate (whether or not unqualified) undertakings in respect of the matters referred to in subsection (3);

the Attorney‑General may, in his or her discretion:

                     (e)  in a case where the prisoner is being held in custody:

                              (i)  if the prisoner is a federal prisoner and is not also a State prisoner—direct that the prisoner be released from prison for the purpose of travelling to the foreign country to give evidence at the proceeding;

                             (ii)  if the prisoner is a federal prisoner and also a State prisoner—direct, subject to the obtaining of any approvals required to be obtained from an authority of the relevant State, that the prisoner be released from prison for the purpose of travelling to the foreign country to give evidence at the proceeding; and

                            (iii)  in any case, subject to the making or giving of any necessary directions or approvals in relation to the release of the prisoner—make arrangements for the travel of the prisoner to the foreign country in the custody of a police or prison officer appointed by the Attorney‑General for the purpose; or

                      (f)  in a case where the prisoner, having been released from custody on a parole or other order or licence to be at large, is not being held in custody:

                              (i)  if the prisoner is a federal prisoner and is not also a State prisoner—approve the travel of the prisoner to the foreign country to give evidence at the proceeding and obtain such approvals, authorities, permissions or variations to the parole or other order or licence to be at large as may be required;

                             (ii)  if the prisoner is a federal prisoner and also a State prisoner—subject to the obtaining of any approvals, authorities or permissions required to be obtained from an authority of the relevant State and the making of any necessary variations to the parole or other order or licence to be at large, approve the travel of the prisoner to the foreign country to give evidence at the proceeding and obtain such approvals, authorities, permissions or variations to the parole or other order or licence to be at large made or granted, as the case may be, under a law of the Commonwealth or of a Territory as may be required; and

                            (iii)  in any case, subject to the obtaining of any necessary approvals, authorities, permissions or variations of the parole or other order or licence to be at large—make arrangements for the travel of the prisoner to the foreign country.

             (2)  Where:

                     (a)  a proceeding relating to a criminal matter has commenced in a foreign country;

                     (b)  the foreign country requests the attendance at a hearing in connection with the proceeding of a person (not being a federal prisoner or a State prisoner) who is in Australia;

                     (c)  there are reasonable grounds to believe that the person is capable of giving evidence relevant to the proceeding; and

                     (d)  the Attorney‑General is satisfied that:

                              (i)  the person has consented to giving evidence in the foreign country; and

                             (ii)  the foreign country has given adequate (whether or not unqualified) undertakings in respect of the matters referred to in subsection (3);

the Attorney‑General may, in his or her discretion, make arrangements for the travel of the person to the foreign country.

             (3)  The matters in relation to which undertakings are to be given by a foreign country for the purpose of a request that a person give evidence in the foreign country are:

                     (a)  that the person shall not:

                              (i)  be detained, prosecuted or punished for any offence against the law of the foreign country that is alleged to have been committed, or that was committed, before the person’s departure from Australia;

                             (ii)  be subjected to any civil suit in respect of any act or omission of the person that is alleged to have occurred, or that occurred, before the person’s departure from Australia, being a civil suit to which the person could not be subjected if the person were not in the foreign country; or

                            (iii)  be required to give evidence in any proceeding in the foreign country other than the proceeding to which the request relates;

                            unless:

                            (iv)  the person has left the foreign country; or

                             (v)  the person has had the opportunity of leaving the foreign country and has remained in that country otherwise than for the purpose of giving evidence in the proceeding to which the request relates;

                     (b)  that any evidence given by the person in the proceeding to which the request relates will be inadmissible or otherwise disqualified from use in the prosecution of the person for an offence against a law of the foreign country other than the offence of perjury in relation to the giving of that evidence;

                     (c)  that the person will be returned to Australia in accordance with arrangements agreed by the Attorney‑General;

                     (d)  in a case where the person is being held in custody in Australia and the Attorney‑General requests the foreign country to make arrangements for the keeping of the person in custody while the person is in the foreign country:

                              (i)  the making of appropriate arrangements for that purpose;

                             (ii)  that the person will not be released from custody in the foreign country unless the Attorney‑General notifies an appropriate authority of the foreign country that the person is entitled to be released from custody under Australian law; and

                            (iii)  if the person is released in the foreign country as mentioned in subparagraph (ii)—that the person’s accommodation and expenses pending the completion of the proceeding to which the request relates will be paid for by the foreign country; and

                     (e)  such other matters (if any) as the Attorney‑General thinks appropriate.

27  Requests for assistance in relation to investigations in foreign countries

             (1)  Where:

                     (a)  an investigation relating to a criminal matter has commenced in a foreign country;

                     (b)  the foreign country requests the removal of a federal prisoner or a State prisoner who is in Australia (whether or not in custody) to the foreign country for the purpose of giving assistance in relation to the investigation;

                     (c)  there are reasonable grounds to believe that the prisoner is capable of giving assistance in relation to the investigation; and

                     (d)  the Attorney‑General is satisfied that:

                              (i)  the prisoner has consented to being removed to the foreign country for the purpose of giving assistance in relation to the investigation; and

                             (ii)  the foreign country has given adequate (whether or not unqualified) undertakings in respect of the matters referred to in subsection (3);

the Attorney‑General may, in his or her discretion:

                     (e)  in a case where the prisoner is being held in custody:

                              (i)  if the prisoner is a federal prisoner and is not also a State prisoner—direct that the prisoner be released from prison for the purpose of travelling to the foreign country to give assistance in relation to the investigation;

                             (ii)  if the prisoner is a federal prisoner and also a State prisoner—direct, subject to the obtaining of any approvals required to be obtained from an authority of the relevant State, that the prisoner be released from prison for the purpose of travelling to the foreign country for the purpose of giving assistance in relation to the investigation; and

                            (iii)  in any case, subject to the making or giving of any necessary directions or approvals in relation to the release of the prisoner—make arrangements for the travel of the prisoner to the foreign country in the custody of a police or prison officer appointed by the Attorney‑General for the purpose; or

                      (f)  in a case where the prisoner, having been released from custody on a parole or other order or licence to be at large, is not being held in custody:

                              (i)  if the prisoner is a federal prisoner and is not also a State prisoner—approve the travel of the prisoner to the foreign country for the purpose of giving assistance in relation to the investigation and obtain such approvals, authorities, permissions or variations to the parole or other order or licence to be at large as may be required;

                             (ii)  if the prisoner is a federal prisoner and also a State prisoner—subject to the obtaining of any approvals, authorities or permissions required to be obtained from an authority of the relevant State and the making of any necessary variations to the parole or other order or licence to be at large, approve the travel of the prisoner to the foreign country for the purpose of giving assistance in relation to the investigation and obtain such approvals, authorities, permissions or variations to the parole or other order or licence to be at large made or granted, as the case may be, under a law of the Commonwealth or of a Territory as may be required; and

                            (iii)  in any case, subject to the obtaining of any necessary approvals, authorities, permissions or variations of the parole or other order or licence to be at large—make arrangements for the travel of the prisoner to the foreign country.

             (2)  Where:

                     (a)  an investigation relating to a criminal matter has commenced in a foreign country;

                     (b)  the foreign country requests that a person (not being a federal prisoner or a State prisoner) who is in Australia travel to the foreign country to give assistance in relation to the investigation;

                     (c)  there are reasonable grounds to believe that the person is capable of giving assistance in relation to the investigation; and

                     (d)  the Attorney‑General is satisfied that:

                              (i)  the person has consented to travel to the foreign country for the purpose of giving assistance in relation to the investigation; and

                             (ii)  the foreign country has given adequate (whether or not unqualified) undertakings in respect of the matters referred to in subsection (3);

the Attorney‑General may, in his or her discretion, make arrangements for the travel of the person to the foreign country.

             (3)  The matters in relation to which undertakings are to be given by a foreign country for the purpose of a request that a person be removed to, or travel to, the foreign country for the purpose of giving assistance in relation to an investigation are:

                     (a)  that the person shall not:

                              (i)  be detained, prosecuted or punished for any offence against the law of the foreign country that is alleged to have been committed, or that was committed, before the person’s departure from Australia;

                             (ii)  be subjected to any civil suit in respect of any act or omission of the person that is alleged to have occurred, or that occurred, before the person’s departure from Australia, being a civil suit to which the person could not be subjected if the person were not in the foreign country; or

                            (iii)  be required to give evidence in any proceeding in the foreign country;

                            unless:

                            (iv)  the person has left the foreign country; or

                             (v)  the person has had the opportunity of leaving the foreign country and has remained in that country otherwise than for the purpose of giving assistance in relation to the investigation to which the request relates;

                     (b)  that the person will be returned to Australia in accordance with arrangements agreed by the Attorney‑General;

                     (c)  in a case where the person is being held in custody in Australia and the Attorney‑General requests the foreign country to make arrangements for the keeping of the person in custody while the person is in the foreign country:

                              (i)  the making of appropriate arrangements for that purpose;

                             (ii)  that the person will not be released from custody in the foreign country unless the Attorney‑General notifies an appropriate authority of the foreign country that the person is entitled to be released from custody under Australian law; and

                            (iii)  if the person is released in the foreign country as mentioned in subparagraph (ii)—that the person’s accommodation and expenses pending the completion of the investigation to which the request relates will be paid for by the foreign country; and

                     (d)  such other matters (if any) as the Attorney‑General thinks appropriate.

28  Effect of removal to foreign country on prisoner’s term of imprisonment

                   Where a prisoner who is serving a term of imprisonment for an offence against a law of the Commonwealth or of a Territory is released from a prison pursuant to a request by a foreign country under section 26 or 27, the prisoner shall, while in custody in connection with the request (including custody outside Australia), be deemed to be continuing to serve that term of imprisonment.


 

Part VCustody of persons in transit

  

29  Transit

             (1)  If a person is to be transported in custody from a foreign country through Australia to another foreign country for the purposes of:

                     (a)  giving evidence in a proceeding; or

                     (b)  giving assistance in relation to an investigation;

relating to a criminal matter in the other foreign country, the person:

                     (c)  may be transported through Australia in the custody of another person; and

                     (d)  if an aircraft or ship by which the person is being transported lands or calls at a place in Australia—shall be kept in such custody as the Attorney‑General directs in writing until his or her transportation is continued.

             (2)  Where a person who is being held in custody pursuant to a direction under paragraph (1)(d) and the person’s transportation is not, in the opinion of the Attorney‑General, continued within a reasonable time, the Attorney‑General may direct that the person be transported in custody to the foreign country from which the person was first transported.

31  Arrest of person in transit

             (1)  Any police officer may, without warrant, arrest a person if the police officer has reasonable grounds to believe that the person was being kept in custody pursuant to a direction under paragraph 29(1)(d) and has escaped from that custody.

             (2)  The police officer must, as soon as practicable, take the person before a Magistrate.

             (3)  If the Magistrate is satisfied that the person has escaped from lawful custody, the Magistrate may issue a warrant authorising any police officer to return the person to lawful custody.

31A  Aiding persons to escape etc.

                   Sections 46, 46A, 47A, 47C and 48 of the Crimes Act 1914 have effect as if:

                     (a)  arrest under section 31 of this Act were arrest in respect of an offence against a law of the Commonwealth; and

                     (b)  custody while in Australia in accordance with a direction under paragraph 29(1)(d) of this Act were custody in respect of an offence against a law of the Commonwealth.


 

Part VIProceeds of crime

Division 1Requests by Australia

32  Requests for enforcement of orders

                   Australia may request an appropriate authority of a foreign country to make arrangements for the enforcement of:

                     (a)  an Australian forfeiture order against property that is believed to be located in that country;

                     (b)  an Australian pecuniary penalty order, or an Australian literary proceeds order, where some or all of the property available to satisfy the order is believed to be located in that country; or

                     (c)  an Australian restraining order against property that is believed to be located in that country;

if the order was made in respect of a serious offence.

33  Requests for issue of orders in foreign countries

                   Where a criminal proceeding or criminal investigation has commenced in Australia in relation to a serious offence, Australia may request an appropriate authority of a foreign country to obtain the issue, in respect of the offence, of a warrant, order or other instrument similar in nature to any of the following warrants and orders under the Proceeds of Crime Act:

                     (b)  a restraining order;

                     (c)  a production order;

                     (d)  a search warrant;

                     (e)  a monitoring order.


 

Division 2Requests by foreign countries

Subdivision AEnforcement of foreign orders

34  Requests for enforcement of foreign orders

             (1)  If:

                     (a)  a foreign country requests the Attorney‑General to make arrangements for the enforcement of:

                              (i)  a foreign forfeiture order, made in respect of a foreign serious offence, against property that is reasonably suspected of being located in Australia; or

                             (ii)  a foreign pecuniary penalty order, made in respect of a foreign serious offence, where some or all of the property available to satisfy the order is reasonably suspected of being located in Australia; and

                     (b)  the Attorney‑General is satisfied that:

                              (i)  a person has been convicted of the offence; and

                             (ii)  the conviction and the order are not subject to further appeal in the foreign country;

the Attorney‑General may authorise the DPP, in writing, to apply for the registration of the order in a specified court.

             (2)  If a foreign country that is specified in regulations made for the purposes of this subsection requests the Attorney‑General to make arrangements for the enforcement of:

                     (a)  a foreign forfeiture order that:

                              (i)  has the effect of forfeiting a person’s property on the basis that the property is, or is alleged to be, the proceeds or an instrument of a foreign serious offence (whether or not a person has been convicted of that offence); and

                             (ii)  is made against property that is reasonably suspected of being located in Australia; or

                     (b)  a foreign pecuniary penalty order in respect of which both of the following apply:

                              (i)  the order has the effect of requiring a person to pay an amount of money on the basis that the money is, or is alleged to be, the benefit derived from a foreign serious offence (whether or not the person has been convicted of that offence);

                             (ii)  some or all of the property available to satisfy the order is reasonably suspected of being located in Australia;

the Attorney‑General may authorise the DPP, in writing, to apply for the registration of the order in a specified court.

             (3)  If a foreign country requests the Attorney‑General to make arrangements for the enforcement of a foreign restraining order, against property that is reasonably suspected of being located in Australia, that is:

                     (a)  in any case—made in respect of a foreign serious offence for which a person has been convicted; or

                     (b)  if the foreign country is specified in regulations made for the purposes of subsection (2)—made in respect of the alleged commission of a foreign serious offence (whether or not the identity of the person who committed the offence is known);

the Attorney‑General may authorise the DPP, in writing, to apply for the registration of the order in a specified court.

             (4)  The court that the Attorney‑General specifies under subsection (1), (2) or (3) must be a court with proceeds jurisdiction in a State or Territory in which the property, or some or all of the property, is reasonably suspected of being located.

34A  Registration of foreign orders

             (1)  If the DPP applies to a court for registration of a foreign order in accordance with an authorisation under this Subdivision, the court must register the order accordingly.

             (2)  The DPP must give notice of the application:

                     (a)  to specified persons the DPP has reason to suspect may have an interest in the property; and

                     (b)  to such other persons as the court directs.

             (3)  However, the court must consider the application without notice having been given if the DPP requests the court to do so.

             (4)  If a foreign pecuniary penalty order or a foreign restraining order is registered in a court under this Subdivision:

                     (a)  a copy of any amendments made to the order (whether before or after registration) may be registered in the same way as the order; and

                     (b)  the amendments do not, for the purposes of this Act and the Proceeds of Crime Act, have effect until they are registered.

             (5)  An order or an amendment of an order is to be registered in a court by the registration, in accordance with the rules of the court, of:

                     (a)  a copy of the appropriate order or amendment sealed by the court or other authority making that order or amendment; or

                     (b)  a copy of that order or amendment duly authenticated in accordance with subsection 43(2).

34B  Enforcement of foreign forfeiture orders

             (1)  A foreign forfeiture order registered in a court under this Subdivision has effect, and may be enforced, as if it were a forfeiture order made by the court under the Proceeds of Crime Act at the time of registration.

             (2)  In particular, section 68 of the Proceeds of Crime Act 2002 applies in relation to the forfeiture order as if:

                     (a)  the reference in subparagraph 68(1)(b)(i) of that Act to the DPP having applied for the order were a reference to the foreign forfeiture order having been made; and

                     (b)  subparagraph 68(1)(b)(ii) of that Act did not apply if the person in question died after the DPP applied for registration of the order under section 34A of this Act.

             (3)  Subject to section 34C, property that is subject to a foreign forfeiture order registered under this Subdivision may be disposed of, or otherwise dealt with, in accordance with any direction of the Attorney‑General or of a person authorised by the Attorney‑General in writing for the purposes of this subsection.

             (4)  Sections 69 and 70 and Divisions 5 to 7 of Part 2‑2 of the Proceeds of Crime Act do not apply in relation to a foreign forfeiture order registered under this Subdivision.

34C  Effect on third parties of registration of foreign forfeiture orders

Applications by third parties

             (1)  If a court registers under section 34A a foreign forfeiture order against property, a person who:

                     (a)  claims an interest in the property; and

                     (b)  either:

                              (i)  if the registration relates to an authorisation given under subsection 34(1)—was not convicted of a foreign serious offence in respect of which the order was made; or

                             (ii)  if the registration relates to an authorisation given under subsection 34(2)—is not a person whom the court has reason to believe committed a foreign serious offence in respect of which the order was made;

may apply to the court for an order under subsection (2).

Orders by the court

             (2)  If, on an application for an order under this subsection, the court is satisfied that:

                     (a)  the applicant was not, in any way, involved in the commission of a foreign serious offence in respect of which the foreign forfeiture order was made; and

                     (b)  if the applicant acquired the interest in the property at the time of or after the commission of such an offence—the property was neither proceeds nor an instrument of such an offence;

the court must make an order:

                     (c)  declaring the nature, extent and value (as at the time when the order is made) of the applicant’s interest in the property; and

                     (d)  either:

                              (i)  directing the Commonwealth to transfer the interest to the applicant; or

                             (ii)  declaring that there is payable by the Commonwealth to the applicant an amount equal to the value declared under paragraph (c).

Certain people need leave to apply

             (3)  A person who was given notice of, or appeared at, the hearing held in connection with the making of the foreign forfeiture order is not entitled to apply under subsection (1) unless the court gives leave.

             (4)  The court may give leave if satisfied that there are special grounds for doing so.

             (5)  Without limiting subsection (4), the court may grant a person leave if the court is satisfied that:

                     (a)  the person, for a good reason, did not attend the hearing referred to in subsection (3) although the person had notice of the hearing; or

                     (b)  particular evidence that the person proposes to adduce in connection with the proposed application under subsection (1) was not available to the person at the time of the hearing referred to in subsection (3).

Period for applying

             (6)  Unless the court gives leave, an application under subsection (1) is to be made before the end of 6 weeks beginning on the day when the foreign forfeiture order is registered in the court.

             (7)  The court may give leave to apply outside that period if the court is satisfied that the person’s failure to apply within that period was not due to any neglect on the person’s part.

Procedural matters

             (8)  A person who applies under subsection (1) must give to the DPP notice, as prescribed, of the application.

             (9)  The DPP is to be a party to proceedings on an application under subsection (1). The Attorney‑General may intervene in the proceedings.

34D  Enforcement of foreign pecuniary penalty orders

             (1)  A foreign pecuniary penalty order registered in a court under this Subdivision has effect, and may be enforced, as if it were a pecuniary penalty order that:

                     (a)  was made by the court under the Proceeds of Crime Act at the time of registration; and

                     (b)  requires the payment to the Commonwealth of the amount payable under the order.

             (2)  Any amount paid (whether in Australia, in the foreign country in which the order was made or elsewhere) in satisfaction of the foreign pecuniary penalty order is taken to have been paid in satisfaction of the debt that arises because of the registration of the foreign pecuniary penalty order in that court.

             (3)  Division 5 of Part 2‑4 of the Proceeds of Crime Act does not apply in relation to a foreign pecuniary penalty order registered under this Subdivision.

34E  Enforcement of foreign restraining orders

             (1)  A foreign restraining order registered in a court under this Subdivision has effect, and may be enforced, as if it were a restraining order that:

                     (a)  was made by the court under the Proceeds of Crime Act at the time of the registration; and

                     (b)  directed that the property specified in the order is not to be disposed of or otherwise dealt with by any person.

             (2)  In particular:

                     (a)  section 288 of that Act applies as if:

                              (i)  the reference in that section to the Official Trustee’s exercise of powers under that Act included a reference to the Official Trustee’s exercise of those powers in relation to a foreign restraining order so registered; and

                             (ii)  the reference in that section to the Official Trustee’s performance of functions or duties under that Act included a reference to the Official Trustee’s performance of those functions or duties in relation to such a foreign restraining order; and

                     (b)  section 289 of that Act applies as if the reference in that section to controlled property included a reference to property that is subject to an order under section 35; and

                     (c)  section 290 of that Act applies as if the reference in that section to the controlled property were a reference to the property that is subject to an order under section 35.

             (3)  Divisions 1, 2 and 3 of Part 2‑1, section 33, Divisions 5 and 6 of Part 2‑1 and sections 142, 143, 169, 170 and 282 to 287 of the Proceeds of Crime Act do not apply in relation to a foreign restraining order registered under this Subdivision.

Note:          Division 3 of this Part contains further provisions relating to registered foreign restraining orders.

34F  Faxed copies of foreign orders

             (1)  A faxed copy of a sealed or authenticated copy of a foreign order or an amendment of a foreign order is to be regarded for the purposes of this Act as the same as the sealed or authenticated copy.

             (2)  However, if registration of the order under this Subdivision is effected by means of the faxed copy, the registration ceases to have effect at the end of 21 days unless the sealed or authenticated copy has been filed by then in the court that registered the order.

34G  Cancelling registration

             (1)  The Attorney‑General may direct the DPP to apply to a court in which:

                     (a)  a foreign pecuniary penalty order; or

                     (b)  a foreign restraining order;

has been registered under this Subdivision for cancellation of the registration.

             (2)  Without limiting subsection (1), the Attorney‑General may give a direction under that subsection in relation to an order if the Attorney‑General is satisfied that:

                     (a)  the order has ceased to have effect in the foreign country in which the order was made; or

                     (b)  cancellation of the order is appropriate having regard to the arrangements entered into between Australia and the foreign country in relation to the enforcement of orders of that kind.

             (3)  The court to which the DPP applies in accordance with a direction under subsection (1) must cancel the registration accordingly.

34H  Certain provisions of the Proceeds of Crime Act not to apply

                   Part 4‑2 and sections 322 and 323 of the Proceeds of Crime Act do not apply to a foreign order registered under this Subdivision.

Subdivision BRestraining orders relating to foreign criminal proceedings

34J  Requests for restraining orders

             (1)  If:

                     (a)  either:

                              (i)  a criminal proceeding has commenced, or there are reasonable grounds to suspect that a criminal proceeding is about to commence, in a foreign country in respect of a foreign serious offence; or

                             (ii)  a foreign country is specified in regulations made for the purposes of subsection 34(2), and foreign confiscation proceedings have commenced, or there are reasonable grounds to suspect that such proceedings are about to commence, in the foreign country; and

                     (b)  there are reasonable grounds to believe that property that may be made or is about to be made the subject of a foreign restraining order is located in Australia; and

                     (c)  the foreign country requests the Attorney‑General to obtain the issue of a restraining order against the property;

the Attorney‑General may authorise the DPP to apply to a specified court for a restraining order against that property in respect of the offence.

             (2)  The court specified must be a court with proceeds jurisdiction in a State or Territory in which the property, or some or all of the property, is reasonably suspected of being located.

34K  Applying for and making restraining orders

             (1)  If so authorised, the DPP may apply for such a restraining order against that property in respect of the offence.

             (2)  Part 2‑1 of the Proceeds of Crime Act applies to the application, and to any restraining order made as a result.

             (3)  It applies as if:

                     (a)  references in that Part to an indictable offence were references to the foreign serious offence; and

                     (b)  references in that Part to a court with proceeds jurisdiction were references to the court specified in the DPP’s authorisation under section 34J of this Act; and

                     (c)  in a case to which subparagraph 34J(1)(a)(i) applies:

                              (i)  references in that Part to a person charged with an indictable offence were references to a person against whom a criminal proceeding in respect of a foreign serious offence has commenced in a foreign country; and

                             (ii)  references in that Part to it being proposed to charge a person with an indictable offence were a reference to it being reasonably suspected that criminal proceedings are about to commence in respect of a foreign serious offence against the person in a foreign country; and

                            (iii)  paragraphs 17(1)(e) and (f), subsections 17(3) and (4) and sections 18 to 20, 29, 44 and 45 of that Act were omitted; and

                     (d)  in a case to which subparagraph 34J(1)(a)(ii) applies in relation to a foreign country:

                              (i)  references in that Part to reasonable grounds to suspect that a person has committed a serious offence were references to reasonable grounds to suspect that such proceedings have commenced, or are about to commence, in the foreign country; and

                             (ii)  section 17, paragraphs 18(1)(e) and (f), subsection 18(3) and sections 19, 20, 29, 44 and 45 of that Act were omitted.

34L  Excluding property from restraining orders

                   If:

                     (a)  a person (the defendant) has been alleged, in a criminal proceeding in a foreign country, to have committed a foreign serious offence; and

                     (b)  a court makes a restraining order under Part 2‑1 of the Proceeds of Crime Act against property in respect of the offence; and

                     (c)  a person having an interest in the property applies to the court under Division 3 of Part 2‑1 of that Act for an order varying the restraining order to exclude the person’s interest from the restraining order;

the court must grant the application if the court is satisfied that:

                     (d)  in a case where the applicant is not the defendant:

                              (i)  the applicant was not, in any way, involved in the commission of the offence; and

                             (ii)  if the applicant acquired the interest at the time of or after the commission, or alleged commission, of the offence—the property was neither proceeds nor an instrument of the offence; or

                     (e)  in any case—it is in the public interest to do so having regard to any financial hardship or other consequence of the interest remaining subject to the order.

34M  Cessation of restraining orders

             (1)  A restraining order made in respect of a foreign serious offence as a result of an application under subsection 34K(1) ceases to have effect:

                     (a)  at the end of the period of 30 days commencing on the day on which the order is made; or

                     (b)  if the court that made the restraining order, on application made by the DPP before the end of the period referred to in paragraph (a), extends the period of operation of the order—at the end of the period as so extended.

             (2)  However, the restraining order ceases to have effect upon the registration of a foreign restraining order against the property under Subdivision A if that registration occurs before the end of the period referred to in paragraph (1)(a) or (b) (as the case requires).

Subdivision CProduction orders relating to foreign serious offences

34N  Requests for production orders

             (1)  If:

                     (a)  a criminal proceeding or criminal investigation has commenced in a foreign country in respect of a foreign serious offence; and

                     (b)  a property‑tracking document in relation to the offence is reasonably suspected of being located in Australia; and

                     (c)  the foreign country requests the Attorney‑General to obtain the issue of a production order requiring that the document be produced or made available for inspection in accordance with Australian law;

the Attorney‑General may authorise an authorised officer of an enforcement agency to apply to a magistrate of a specified State or Territory for a production order under the Proceeds of Crime Act in respect of the offence for the purpose of obtaining possession of the property‑tracking document.

             (2)  The State or Territory specified must be a State or Territory in which the document is, or some or all of the documents are, reasonably suspected of being located.

34P  Applying for and making production orders

             (1)  If so authorised, the authorised officer may apply for such a production order against that property in respect of the offence.

             (2)  Part 3‑2 of the Proceeds of Crime Act applies to the application, and to any production order made as a result.

             (3)  It applies as if:

                     (a)  references in that Part to an indictable offence or to a serious offence were references to the foreign serious offence; and

                     (b)  references in that Part to a magistrate were references to a magistrate of the State or Territory specified in the authorised officer’s authorisation under subsection 34N(1); and

                     (c)  subparagraphs 202(5)(a)(ii) and (iii) and (c)(ii) and (iii), paragraph 202(5)(e) and subsection 205(1) of that Act were omitted.

34Q  Retaining produced documents

             (1)  An authorised officer who takes possession of a document under a production order made in respect of a foreign serious offence may retain the document pending a written direction from the Attorney‑General as to how to deal with the document.

             (2)  Directions from the Attorney‑General may include a direction that the document be sent to an authority of the foreign country that requested the obtaining of the production order.

Subdivision DNotices to financial institutions

34R  Giving notices to financial institutions

             (1)  The Attorney‑General or a senior Departmental officer may give a written notice to a financial institution requiring the institution to provide to an authorised officer any information or documents relevant to any one or more of the following:

                     (a)  determining whether an account is held by a specified person with the financial institution;

                     (b)  determining whether a particular person is a signatory to an account;

                     (c)  if a person holds an account with the institution, the current balance of the account;

                     (d)  details of transactions on such an account over a specified period of up to 6 months;

                     (e)  details of any related accounts (including names of those who hold those accounts);

                      (f)  a transaction conducted by the financial institution on behalf of a specified person.

             (2)  The Attorney‑General or the senior Departmental officer must not issue the notice unless he or she reasonably believes that giving the notice is required:

                     (a)  to determine whether to take any action under this Division, or under the Proceeds of Crime Act in connection with the operation of this Division; or

                     (b)  in relation to proceedings under this Division, or under the Proceeds of Crime Act in connection with the operation of this Division.

             (3)  In this section:

senior Departmental officer has the same meaning as in the Proceeds of Crime Act.

34S  Contents of notices to financial institutions

                   The notice must:

                     (a)  state that the officer giving the notice believes that the notice is required:

                              (i)  to determine whether to take any action under this Division, or under the Proceeds of Crime Act in connection with the operation of this Division; or

                             (ii)  in relation to proceedings under this Division, or under the Proceeds of Crime Act in connection with the operation of this Division;

                            (as the case requires); and

                     (b)  specify the name of the financial institution; and

                     (c)  specify the kind of information or documents required to be provided; and

                     (d)  specify the form and manner in which that information or those documents are to be provided; and

                     (e)  state that the information or documents must be provided within 14 days of the notice; and

                      (f)  if the notice specifies that information about the notice must not be disclosed—set out the effect of section 34V (disclosing existence or nature of a notice); and

                     (g)  set out the effect of section 34W (failing to comply with a notice).

34T  Protection from suits etc. for those complying with notices

             (1)  No action, suit or proceeding lies against:

                     (a)  a financial institution; or

                     (b)  an officer, employee or agent of the institution acting in the course of that person’s employment or agency;

in relation to any action taken by the institution or person under a notice under section 34R or in the mistaken belief that action was required under the notice.

             (2)  A financial institution, or person who is an officer, employee or agent of a financial institution, who provides information under a notice under section 34R is taken, for the purposes of Part 10.2 of the Criminal Code (offences relating to money‑laundering), not to have been in possession of that information at any time.

34U  Making false statements in applications

                   A person is guilty of an offence if:

                     (a)  the person makes a statement (whether orally, in a document or in any other way); and

                     (b)  the statement:

                              (i)  is false or misleading; or

                             (ii)  omits any matter or thing without which the statement is misleading; and

                     (c)  the statement is made in, or in connection with, a notice under section 34R.

Maximum penalty: Imprisonment for 12 months or 60 penalty units, or both.

34V  Disclosing existence or nature of notice

                   A person is guilty of an offence if:

                     (a)  the person is given a notice under section 34R; and

                     (b)  the notice specifies that information about the notice must not be disclosed; and

                     (c)  the person discloses the existence or nature of the notice.

Maximum penalty: Imprisonment for 2 years or 120 penalty units, or both.

34W  Failing to comply with a notice

                   A person is guilty of an offence if:

                     (a)  the person is given a notice under section 34R; and

                     (b)  the person fails to comply with the notice.

Maximum penalty: Imprisonment for 6 months or 30 penalty units, or both.

Note:          Sections 137.1 and 137.2 of the Criminal Code also create offences for providing false or misleading information or documents.

Subdivision EMonitoring orders relating to foreign serious offences

34X  Requests for monitoring orders

             (1)  If:

                     (a)  a criminal proceeding or criminal investigation has commenced in a foreign country in respect of a foreign serious offence referred to in subsection (2); and

                     (b)  information about transactions conducted through an account with a financial institution in Australia is reasonably suspected of being relevant to the proceeding or investigation; and

                     (c)  the foreign country requests the Attorney‑General to obtain the issue of an order directing the financial institution to give information about transactions conducted through the account;

the Attorney‑General may authorise an authorised officer of an enforcement agency to apply to a judge of a specified court for a monitoring order under the Proceeds of Crime Act in respect of the offence for the purpose of obtaining the information requested by the foreign country.

             (2)  These are foreign serious offences to which paragraph (1)(a) applies:

                     (a)  an offence punishable by imprisonment for 3 or more years that:

                              (i)  involves unlawful conduct relating to a narcotic substance; or

                             (ii)  is a money laundering offence; or

                            (iii)  involves unlawful conduct by a person that causes, or is intended to cause, a benefit to the value of at least $10,000 for that person or another person; or

                            (iv)  involves unlawful conduct by a person that causes, or is intended to cause, a loss to the foreign country in question or another person of at least $10,000;

                     (b)  an offence involving the smuggling of migrants;

                     (c)  an offence involving failure to report financial transactions;

                     (d)  an ancillary offence in respect of an offence referred to in paragraph (a), (b) or (c).

             (3)  The court specified must be a court of a State or Territory that has jurisdiction to deal with criminal matters on indictment.

34Y  Applying for and making monitoring orders

             (1)  If so authorised, the authorised officer may apply for such a monitoring order against that property in respect of the offence.

             (2)  Part 3‑4 of the Proceeds of Crime Act applies to the application, and to any monitoring order made as a result.

             (3)  It applies as if:

                     (a)  references in that Part to a serious offence were references to an offence of the kind referred to in paragraph 34X(1)(a); and

                     (b)  disclosing the existence or the operation of the order for the purpose of complying with a person’s obligations under section 34Z of this Act were a purpose specified in subsection 223(4) of the Proceeds of Crime Act.

34Z  Passing on information given under monitoring orders

                   If an enforcement agency is given information under a monitoring order made in relation to a foreign serious offence, the enforcement agency must, as soon as practicable after receiving the information, pass the information on to:

                     (a)  the Attorney‑General; or

                     (b)  an officer of the Attorney‑General’s Department specified by the Attorney‑General by written notice to the enforcement agency.

Subdivision FSearch warrants relating to foreign serious offences

34ZA  Requests for search warrants

             (1)  If:

                     (a)  a criminal proceeding or criminal investigation has commenced in a foreign country in respect of a foreign serious offence; and

                     (b)  proceeds or an instrument of the offence, or a property‑tracking document in relation to the offence, is reasonably suspected of being located in Australia; and

                     (c)  the foreign country requests the Attorney‑General to obtain the issue of a search warrant relating to the proceeds, instrument or document;

the Attorney‑General may authorise an authorised officer of an enforcement agency to apply to a magistrate of a specified State or Territory for a search warrant under the Proceeds of Crime Act in relation to the proceeds, instrument or document.

             (2)  The State or Territory specified must be a State or Territory in which:

                     (a)  the proceeds, or some or all of the proceeds, are reasonably suspected of being located; or

                     (b)  the instrument is, or some or all of the instruments are, reasonably suspected of being located; or

                     (c)  the document is, or some or all of the documents are, reasonably suspected of being located.

34ZB  Applying for and issuing search warrants

             (1)  If so authorised, the authorised officer may apply for such a search warrant, in relation to those proceeds, that instrument or that document, in respect of the offence.

             (2)  Part 3‑5 of the Proceeds of Crime Act applies to the application, and to any search warrant issued as a result.

             (3)  It applies as if:

                     (a)  references in that Part to a property‑tracking document were references to a property‑tracking document relating to the offence; and

                     (b)  references in that Part to a magistrate were references to a magistrate of the State or Territory specified in the authorised officer’s authorisation under subsection 34ZA(1); and

                     (c)  paragraph 228(1)(d) and sections 256 to 258 of that Act were omitted.

34ZC  Seizure of other property and documents

             (1)  A search warrant issued under Part 3‑5 of the Proceeds of Crime Act in relation to a foreign serious offence authorises an authorised officer to seize property or a thing that he or she finds and that he or she believes on reasonable grounds to be:

                     (a)  proceeds or an instrument of the offence or a property‑tracking document in relation to the offence, although not of the kind specified in the warrant; or

                     (b)  proceeds or an instrument of, or a property‑tracking document in relation to, another foreign serious offence in relation to which a search warrant issued under that Part is in force; or

                     (c)  something that:

                              (i)  is relevant to a criminal proceeding in the foreign country in respect of the foreign serious offence; or

                             (ii)  will afford evidence as to the commission of an Australian criminal offence.

             (2)  However, this section only applies if the authorised officer believes on reasonable grounds that it is necessary to seize the property or thing in order to prevent its concealment, loss or destruction or its use in committing an offence.

34ZD  Return of seized property to third parties

             (1)  A person who claims an interest in property (other than a property‑tracking document) that has been seized under a search warrant issued under Part 3‑5 of the Proceeds of Crime Act in relation to a foreign serious offence may apply to a court for an order that the property be returned to the person.

             (2)  The court must be a court of the State or Territory in which the warrant was issued that has proceeds jurisdiction.

             (3)  The court must order the head of the authorised officer’s enforcement agency to return the property to the applicant if the court is satisfied that:

                     (a)  the applicant is entitled to possession of the property; and

                     (b)  the property is not proceeds or an instrument of the relevant foreign serious offence; and

                     (c)  the person who is believed or alleged to have committed the relevant foreign serious offence has no interest in the property.

             (4)  If the court makes such an order, the head of the authorised officer’s enforcement agency must arrange for the property to be returned to the applicant.

             (5)  This section does not apply to property that has been seized because it may afford evidence as to the commission of an Australian criminal offence.

34ZE  Dealing with seized property (other than property‑tracking documents)

Property covered by this section

             (1)  Property (other than a property‑tracking document) must be dealt with in accordance with this section if:

                     (a)  it has been seized under a search warrant issued under Part 3‑5 of the Proceeds of Crime Act in relation to a foreign serious offence; and

                     (b)  it has not been seized under paragraph 34ZC(1)(c).

General rule—property to be returned after 30 days

             (2)  If, at the end of the period of 30 days after the day on which the property was seized:

                     (a)  neither a foreign restraining order, nor a foreign forfeiture order, in relation to the property has been registered in a court under Subdivision A; and

                     (b)  a restraining order has not been made under Subdivision B in respect of the property in relation to the foreign serious offence;

the head of the enforcement agency whose authorised officer seized the property must, unless subsection (3), (5) or (7) applies, arrange for the property to be returned to the person from whose possession it was seized as soon as practicable after the end of that period.

Effect of restraining orders being registered or obtained

             (3)  If, before the end of that period:

                     (a)  a foreign restraining order in relation to the property is registered in a court under Subdivision A; or

                     (b)  a restraining order is made under Subdivision B in respect of the property in relation to the foreign serious offence;

the head of the enforcement agency whose authorised officer seized the property:

                     (c)  if there is in force, at the end of that period, a direction by a court that the Official Trustee take custody and control of the property—must arrange for the property to be given to the Official Trustee in accordance with the direction; or

                     (d)  if there is in force at the end of that period an order under subsection (6) in relation to the property—must arrange for the property to be retained until it is dealt with in accordance with another provision of this Act or the Proceeds of Crime Act.

             (4)  If the property is subject to a direction of a kind referred to in paragraph (3)(c), the Proceeds of Crime Act applies to the property as if it were controlled property within the meaning of that Act.

Retaining property despite restraining orders

             (5)  If, at a time when the property is in the possession of the head of the enforcement agency whose authorised officer seized the property:

                     (a)  a foreign restraining order in respect of the property has been registered in an Australian court under Subdivision A; or

                     (b)  a restraining order has been made under Subdivision B in respect of the property in relation to the foreign serious offence;

the head of the enforcement agency may apply to the court in which the restraining order was registered, or by which the restraining order was made, for an order that the head of the enforcement agency retain possession of the property.

             (6)  If the court is satisfied that the head of the enforcement agency requires the property to be dealt with in accordance with:

                     (a)  a request under section 34 that the restraining order be registered; or

                     (b)  a request under section 34J that the restraining order be obtained;

the court may make an order that the head of the enforcement agency may retain the property for so long as the property is so required.

Effect of foreign forfeiture orders being registered or obtained

             (7)  If, while the property is in the possession of the head of the enforcement agency whose authorised officer seized it, a foreign forfeiture order in respect of the property is registered in a court under Subdivision A, the head of the enforcement agency must deal with the property as required by the forfeiture order.

34ZF  Dealing with seized property‑tracking documents

             (1)  An authorised officer who takes possession of a property‑tracking document under a warrant issued in respect of a foreign serious offence may retain the document for a period not exceeding one month pending a written direction from the Attorney‑General as to how to deal with the document.

             (2)  Directions from the Attorney‑General may include a direction that the document be sent to an authority of the foreign country that requested the issue of the warrant.


 

Division 3Provisions relating to registered foreign restraining orders

35  Court may order Official Trustee to take custody and control of property

                   The court that registers a foreign restraining order under Subdivision A of Division 2 may order the Official Trustee to take custody and control of all or a specified part of property covered by the restraining order if:

                     (a)  the DPP applies for the order; and

                     (b)  the court is satisfied that it is required in the circumstances.

35A  Procedural matters

             (1)  The DPP must give written notice of an application for an order under section 35 in respect of property to:

                     (a)  the owner of the property; and

                     (b)  any other person the DPP has reason to believe may have an interest in the property.

             (2)  The court may, at any time before finally determining the application, direct the DPP to give or publish notice of the application:

                     (a)  to a specified person or class of persons; and

                     (b)  in the manner and within the time that the court considers appropriate.

             (3)  A person who claims an interest in property in respect of which the application is made may appear and adduce evidence at the hearing of the application.

35B  Ancillary orders

                   The court that makes an order under section 35 in relation to property may at any time make orders ancillary to the order, including any one or more of the following:

                     (a)  an order regulating the manner in which the Official Trustee may exercise its powers or perform its duties under the order;

                     (b)  an order determining any question relating to the property, including a question relating to the liabilities of the owner of the property or the exercise of the powers or the performance of the duties of the Official Trustee in relation to the property;

                     (c)  an order directing the owner to give to the Official Trustee, within a specified period, a statement, verified by the oath of the owner, setting out such particulars of the property as the court considers appropriate.

35C  Dealing with restrained property

             (1)  Division 3 of Part 4‑1 of the Proceeds of Crime Act applies to the property as if the property were controlled property within the meaning of that Act.

             (2)  However, the Official Trustee must, before exercising a power under section 278 of the Proceeds of Crime Act in relation to the property, consult with the foreign country that made the request under section 34 relating to the foreign restraining order covering the property.

35D  Money not to be paid into the Common Investment Fund

                   Money that is in the custody or control of the Official Trustee because of a foreign restraining order must not be paid into the Common Investment Fund under section 20B of the Bankruptcy Act 1966 (despite anything in that Act).

35E  Undertakings

                   The court that:

                     (a)  registers a foreign restraining order against property under Subdivision A of Division 2; or

                     (b)  makes an order under section 35 in relation to property;

may, upon application of a person who claims an interest in the property, make an order as to the giving or carrying out of an undertaking, by the DPP on behalf of the Commonwealth, with respect to payment of damages or costs relating to the registration, making or operation of the order.

35F  Order to discharge certain registered foreign pecuniary penalty orders

             (1)  If:

                     (a)  a foreign restraining order is made against property of a person in reliance on the person’s conviction, or alleged commission, of a foreign serious offence; and

                     (b)  the foreign restraining order is registered under Subdivision A of Division 2; and

                     (c)  a foreign pecuniary penalty order has been made against the person in relation to the person’s conviction, or alleged commission, of the offence or a related foreign serious offence; and

                     (d)  the foreign pecuniary penalty order has been registered under Subdivision A of Division 2; and

                     (e)  an order has been made under section 35 ordering the Official Trustee to take control of the property;

the court in which the foreign pecuniary penalty order is registered may, by order, direct the Official Trustee to pay to the Commonwealth an amount out of that property.

             (2)  The amount is to be the amount that would be the penalty amount under the Proceeds of Crime Act if the foreign pecuniary penalty order were a pecuniary penalty order under that Act.

             (3)  For the purposes of enabling the Official Trustee to comply with the order under subsection (1), the court may, in that order or by a subsequent order:

                     (a)  direct the Official Trustee to sell or otherwise dispose of such of the property that is under the control of the Official Trustee as the court specifies; and

                     (b)  appoint an officer of the court or any other person:

                              (i)  to execute any deed or instrument in the name of a person who owns or has an interest in the property; and

                             (ii)  to do any act or thing necessary to give validity and operation to the deed or instrument.

             (4)  The execution of the deed or instrument by the person appointed by an order under subsection (3) has the same force and validity as if the deed or instrument had been executed by the person who owned or had the interest in the property.

35G  Official Trustee to carry out orders

             (1)  As soon as practicable after an order is made under subsection 35F(1) covering property that is money, the Official Trustee must:

                     (a)  apply the money in payment of the costs payable to the Official Trustee, under section 288 of the Proceeds of Crime Act, in respect of the order under section 35 in respect of the property; and

                     (b)  subject to subsection (3), credit the remainder of the money to the Confiscated Assets Account as required by section 296 of that Act.

             (2)  As soon as practicable after an order is made under subsection 35F(1) covering property that is not money, the Official Trustee must:

                     (a)  sell or otherwise dispose of the property;

                     (b)  apply the proceeds of the sale or disposition in payment of the costs payable to the Official Trustee, under section 288 of the Proceeds of Crime Act, in respect of the order in respect of the property (including expenses incurred in connection with selling or disposing of the property); and

                     (c)  subject to subsection (3), credit the remainder of the proceeds to the Confiscated Assets Account as required by section 296 of the Proceeds of Crime Act.

             (3)  If the money or proceeds to which paragraph (1)(b) or (2)(c) applies exceeds the amount payable to the Commonwealth under the order under subsection 35F(1):

                     (a)  the amount to be credited under that paragraph is the amount payable to the Commonwealth under the order; and

                     (b)  the Official Trustee must pay an amount equal to the excess to the person whose property was covered by the order under section 35.

35H  Discharge of person’s liability under foreign pecuniary penalty order

                   A person’s liability under a foreign pecuniary penalty order is taken to be discharged to the extent that the Official Trustee credits money to the Confiscated Assets Account, as required by section 296 of the Proceeds of Crime Act, in satisfaction of the person’s liability under the order.

35J  Creation of charge on property

             (1)  If:

                     (a)  a foreign restraining order against property has been registered under Subdivision A of Division 2; and

                     (b)  a foreign pecuniary penalty order has been made against the person in reliance on the person’s conviction, or alleged commission, of:

                              (i)  the foreign serious offence in relation to which the foreign restraining order was made; or

                             (ii)  a related foreign serious offence; and

                     (c)  the foreign pecuniary penalty order has been registered under Subdivision A of Division 2;

the registration of the foreign restraining order or the foreign pecuniary penalty order (whichever last occurs) creates, by force of this section, a charge on the property to secure the payment of an amount to the Commonwealth.

             (2)  The amount is to be the amount that would be the penalty amount under the Proceeds of Crime Act if the foreign pecuniary penalty order were a pecuniary penalty order under that Act.

             (3)  The charge:

                     (a)  is subject to every encumbrance on the property that came into existence before the charge and that would, apart from this subsection, have priority; and

                     (b)  has priority over all other encumbrances; and

                     (c)  subject to section 35K, is not affected by any change of ownership of the property.

35K  When the charge ceases to have effect

                   The charge ceases to have effect in respect of the property on the earliest of the following events:

                     (a)  the payment to the Commonwealth of the amount under subsection 35J(2) in relation to the foreign pecuniary penalty order;

                     (b)  the sale or other disposition of the property:

                              (i)  under an order under subsection 35F(3); or

                             (ii)  by the owner of the property with the consent of the court in which the foreign pecuniary penalty order is registered; or

                            (iii)  if an order under section 35 ordered the Official Trustee to take control of the property—by the owner of the property with the consent of the Official Trustee;

                     (c)  the sale of the property to a purchaser in good faith for value who, at the time of purchase, has no notice of the charge;

                     (d)  the cancellation of the registration of the relevant foreign restraining order or foreign pecuniary penalty order under section 34G.

35L  Registering charges

             (1)  A registration authority that keeps a register of property of a particular kind may record in the register a charge created by section 35J on property of that kind.

             (2)  The registration authority may only do so on the application of the DPP or the Official Trustee.

             (3)  Each person who subsequently deals with the property is taken to have notice of the charge for the purposes of paragraph 35K(c).

             (4)  In this section:

registration authority means an authority responsible for administering a law of the Commonwealth, a State or a Territory providing for registration of title to, or charges over, property of a particular kind.

35M  When order ceases to be in force

                   A foreign restraining order registered under Subdivision A of Division 2 ceases to be in force when the registration is cancelled under section 34G.


 

Part VIIASearch, seizure and powers of arrest

Division 1General

38A  Object of Part

                   This Part makes provision:

                     (a)  for the issue and execution in Australia, at the request of a foreign country, of a search warrant in respect of evidential material in Australia relating to an investigation or proceeding in the foreign country that relates to a criminal matter involving a serious offence; and

                     (b)  for matters relating to the arrest of a person when the arrest has been authorised by this Act or by a warrant issued under the regulations.


 

Division 2Issue of search warrants

38B  Application for search warrant

             (1)  This section applies if a police officer has been authorised under subsection 15(1) to apply for a search warrant in respect of evidential material relating to an investigation or proceeding in a foreign country that relates to a criminal matter involving a serious offence.

             (2)  If the police officer has reasonable grounds for suspecting that the evidential material:

                     (a)  is on any particular premises; or

                     (b)  will, within the applicable period, be on any particular premises;

the police officer may, by an information on oath setting out the grounds for that suspicion, apply for a warrant to search those premises for the evidential material.

Note:          For applicable period see subsection (4).

             (3)  If the police officer has reasonable grounds for suspecting that a person:

                     (a)  is in possession of the evidential material; or

                     (b)  will, within the applicable period, be in possession of the evidential material;

the police officer may, by an information on oath setting out the grounds for that suspicion, apply for a warrant to search that person for the evidential material.

Note:          For applicable period see subsection (4).

             (4)  In this section:

applicable period means:

                     (a)  if the application for the warrant is made by telephone, telex, fax or any other electronic means, as provided by section 38H—48 hours; or

                     (b)  in any other case—72 hours.

38C  When search warrants may be issued

             (1)  If the Magistrate is satisfied, on the information, that there are reasonable grounds for suspecting that the evidential material:

                     (a)  is on any particular premises; or

                     (b)  will, within the applicable period, be on any particular premises;

the Magistrate may issue a warrant to search the premises.

Note:          For applicable period see subsection (3).

             (2)  If the Magistrate is satisfied, on the information, that there are reasonable grounds for suspecting that a person:

                     (a)  is in possession of the evidential material; or

                     (b)  will, within the applicable period, be in possession of the evidential material;

the Magistrate may issue a warrant authorising an ordinary search or a frisk search of the person.

Note:          For applicable period see subsection (3).

             (3)  In subsections (1) and (2):

applicable period means:

                     (a)  if the application for the warrant is made by telephone, telex, fax or any other electronic means, as provided by section 38H—48 hours; or

                     (b)  in any other case—72 hours.

             (4)  If the police officer applying for the warrant suspects that, in executing the warrant, it will be necessary to use firearms, the police officer must state that suspicion, and the grounds for that suspicion, in the information.

             (5)  If the police officer applying for the warrant:

                     (a)  is a member or special member of the Australian Federal Police; and

                     (b)  has, at any time previously, applied for a warrant relating to the same person or premises;

the police officer must state the particulars, and the outcome, of those applications in the information.

             (6)  A Magistrate of New South Wales or the Australian Capital Territory may issue a warrant in relation to premises or a person in the Jervis Bay Territory.

             (7)  A Magistrate of a State or internal Territory may:

                     (a)  issue a warrant in relation to premises or a person in that State or Territory; or

                     (b)  issue a warrant in relation to premises or a person in an external Territory; or

                     (c)  issue a warrant in relation to premises or a person in another State or internal Territory (including the Jervis Bay Territory) if the Magistrate is satisfied that there are special circumstances that make the issue of the warrant appropriate; or

                     (d)  issue a warrant in relation to a person wherever the person is in Australia or in an external Territory if the Magistrate is satisfied that it is not possible to predict where the person may be.

38D  Content of warrants

             (1)  If the Magistrate issues a search warrant, the Magistrate is to state in the warrant:

                     (a)  the purpose for which it is issued, including a reference to the nature of the criminal matter to which the relevant proceeding or investigation relates; and

                     (b)  a description of the premises to which the warrant relates or the name or description of the person to whom it relates; and

                     (c)  a description of the evidential material that is to be searched for and seized under the warrant; and

                     (d)  the name of the police officer who, unless he or she inserts the name of another police officer in the warrant, is to be responsible for executing the warrant; and

                     (e)  the period for which the warrant remains in force, which must not be more than:

                              (i)  in the case of a warrant issued on an application by telephone, telex, fax or other electronic means as provided by section 38H—48 hours; or

                             (ii)  in any other case—7 days; and

                      (f)  whether the warrant may be executed at any time or only during particular hours.

             (2)  Paragraph (1)(e) does not prevent the issue of successive warrants in relation to the same premises or person.

             (3)  If the warrant relates to premises, the Magistrate is also to state in the warrant:

                     (a)  that the warrant authorises the seizure of any thing (other than the evidential material referred to in paragraph (1)(c)) found at the premises in the course of the search that the executing officer or an officer assisting believes on reasonable grounds to be:

                              (i)  evidential material relating to the relevant proceeding or investigation; or

                             (ii)  a thing relevant to an indictable offence against an Australian law;

                            if the executing officer or an officer assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an indictable offence against an Australian law; and

                     (b)  whether the warrant authorises an ordinary search or a frisk search of a person who is at or near the premises when the warrant is executed, if the executing officer or an officer assisting suspects on reasonable grounds that the person has in his or her possession any evidential material relating to the relevant proceeding or investigation or any seizable items.

             (4)  If the warrant relates to a person, the Magistrate is also to state in the warrant:

                     (a)  the kind of search (ordinary or frisk) of the person that the warrant authorises; and

                     (b)  that the warrant authorises the seizure of any thing (other than the evidential material referred to in paragraph (1)(c)) found, in the course of the search, in the possession of the person or in or on a vehicle recently used by the person, being a thing that the executing officer or an officer assisting believes on reasonable grounds to be:

                              (i)  evidential material relating to the relevant proceeding or investigation; or

                             (ii)  a thing relevant to an indictable offence against an Australian law;

                            if the executing officer or an officer assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an indictable offence against an Australian law.

38E  The things authorised by a search warrant in relation to premises

             (1)  A warrant in force in relation to premises authorises the executing officer or an officer assisting to do any of the following:

                     (a)  to enter the premises (in the case of a vehicle, wherever it may be);

                     (b)  to search the premises for the evidential material specified in the warrant, and to seize such material if found at the premises;

                     (c)  to seize other things that are found at the premises in the course of the search and that the executing officer or an officer assisting believes on reasonable grounds to be:

                              (i)  evidential material relating to the relevant proceeding or investigation; or

                             (ii)  things relevant to an indictable offence against an Australian law;

                            if the executing officer or officer assisting believes on reasonable grounds that seizure of the things is necessary to prevent their concealment, loss or destruction or their use in committing an indictable offence against an Australian law;

                     (d)  to seize other things found at the premises in the course of the search that the executing officer or an officer assisting believes on reasonable grounds to be seizable items;

                     (e)  if the warrant so allows—to conduct an ordinary search or a frisk search of a person at or near the premises, if the executing officer or an officer assisting suspects on reasonable grounds that the person has in his or her possession any evidential material relating to the relevant proceeding or investigation or any seizable items.

             (2)  If the warrant states that it may be executed only during particular hours, it must not be executed outside those hours.

38F  The things authorised by a search warrant in relation to a person

             (1)  A warrant in force in relation to a person authorises the executing officer or an officer assisting to do any of the following:

                     (a)  to:

                              (i)  search the person in the manner specified in the warrant; and

                             (ii)  search things found in the possession of the person; and

                            (iii)  search any vehicle recently used by the person;

                            for the evidential material specified in the warrant;

                     (b)  to seize such evidential material if found in the course of the search;

                     (c)  to seize other things that are found, in the course of the search, in the possession of the person or in or on any vehicle recently used by the person and that the executing officer or an officer assisting believes on reasonable grounds to be:

                              (i)  evidential material relating to the relevant proceeding or investigation; or

                             (ii)  things relevant to an indictable offence against an Australian law;

                            if the executing officer or police officer assisting believes on reasonable grounds that seizure of the things is necessary to prevent their concealment, loss or destruction or their use in committing an indictable offence against an Australian law;

                     (d)  to seize other things found in the course of the search that the executing officer or a police officer assisting believes on reasonable grounds to be seizable items.

             (2)  If the warrant states that it may be executed only during particular hours, it must not be executed outside those hours.

             (3)  If the warrant authorises an ordinary search or a frisk search of a person, a search of the person different to that so authorised must not be done under the warrant.

38G  Restrictions on personal searches

                   A warrant may not authorise a strip search or a search of a person’s body cavities.

38H  Warrants may be issued by telephone etc.

             (1)  A police officer may apply to a Magistrate for a warrant by telephone, telex, fax or other electronic means:

                     (a)  in an urgent case; or

                     (b)  if the delay that would occur if an application were made in person would frustrate the effective execution of the warrant.

             (2)  The Magistrate may require communication by voice to the extent that is practicable in the circumstances.

             (3)  In making the application, the police officer must give to the Magistrate all the information required to be provided in an application for the issue of a warrant under section 38C, but the application may, if necessary, be made before the information is sworn.

             (4)  If an application is made to a Magistrate under this section and the Magistrate, after considering the information and having received and considered such further information (if any) as the Magistrate requires, is satisfied that:

                     (a)  a warrant in the terms of the application should be issued urgently; or

                     (b)  the delay that would occur if an application were made in person would frustrate the effective execution of the warrant;

the Magistrate may complete and sign the same form of warrant that would be issued under section 38C.

38I  Formalities relating to warrants issued by telephone etc.

             (1)  If the Magistrate decides to issue the warrant under section 38H, the Magistrate is to inform the applicant, by telephone, telex, fax or other electronic means, of the terms of the warrant and the day on which and the time at which it was signed.

             (2)  The applicant must then complete a form of warrant in terms substantially corresponding to those given by the Magistrate, stating on the form the name of the Magistrate and the day on which and the time at which the warrant was signed.

             (3)  The applicant must, not later than the day after the day of expiry of the warrant or the day after the day on which the warrant was executed, whichever is the earlier, give or transmit to the Magistrate:

                     (a)  the form of warrant completed by the applicant; and

                     (b)  if the information referred to in subsection 38H(3) was not sworn—that information duly sworn.

             (4)  The Magistrate is to attach to the documents provided under subsection (3) the form of warrant completed by the Magistrate.

             (5)  If:

                     (a)  it is material, in any proceedings, for a court to be satisfied that the exercise of a power under a warrant issued under section 38H was duly authorised; and

                     (b)  the form of warrant signed by the Magistrate is not produced in evidence;

the court is to assume, unless the contrary is proved, that the exercise of the power was not duly authorised.


 

Division 3Execution of search warrants

38J  Availability of assistance and use of force in executing a warrant

                   In executing a search warrant:

                     (a)  the executing officer may obtain such assistance; and

                     (b)  the executing officer, or a police officer who is assisting in executing the warrant, may use such force against persons and things; and

                     (c)  a person who is not a police officer and who has been authorised to assist in executing the warrant may use such force against things;

as is necessary and reasonable in the circumstances.

38K  Copy of warrant to be shown to occupier etc.

             (1)  If:

                     (a)  a search warrant in relation to premises is being executed; and

                     (b)  the occupier of the premises, or another person who apparently represents the occupier, is present at the premises;

the executing officer or an officer assisting must make a copy of the warrant available to that person.

             (2)  If a search warrant in relation to a person is being executed, the executing officer or an officer assisting must make a copy of the warrant available to that person.

             (3)  If a person is searched under a search warrant in relation to premises, the executing officer or an officer assisting must show the person a copy of the warrant.

             (4)  The executing officer must identify himself or herself to:

                     (a)  the person present at the premises; or

                     (b)  the person being searched;

as the case requires.

             (5)  The copy of the warrant referred to in subsection (1), (2) or (3) need not include the signature of the Magistrate who issued it.

38L  Specific powers available to officers executing warrants

             (1)  When executing a search warrant in relation to premises, the executing officer or an officer assisting may:

                     (a)  for a purpose incidental to the execution of the warrant; or

                     (b)  with the written consent of the occupier of the premises;

photograph, film or videorecord the premises or things at the premises.

             (2)  The executing officer of a warrant in relation to premises and the officers assisting (if any) may not resume and complete the execution of the warrant if they:

                     (a)  cease to execute the warrant; and

                     (b)  leave the premises for a period of more than one hour without the written consent of the occupier of the premises.

             (3)  If:

                     (a)  the execution of a search warrant is stopped by an order of a court; and

                     (b)  the order is later revoked or reversed on appeal;

the execution of the warrant may be completed if the warrant is still in force.

38M  Use of equipment to examine or process things

             (1)  For the purpose of executing a warrant in relation to premises, the executing officer or an officer assisting may bring to the premises any equipment reasonably necessary to examine or process things found at the premises in order to determine whether the things may be seized under the warrant.

             (2)  If:

                     (a)  it is not practicable to examine or process the things at the premises; or

                     (b)  the occupier of the premises consents in writing;

the things may be moved to another place so that the examination or processing can be carried out.

             (3)  If things are moved to another place for the purpose of examination or processing, the executing officer must, if it is practicable to do so:

                     (a)  inform the occupier of the premises of:

                              (i)  the address of that place; and

                             (ii)  the day on which and the time at which the examination or processing will be carried out; and

                     (b)  allow the occupier or his or her representative to be present during the examination or processing.

             (4)  The executing officer or officer assisting may operate equipment already at the premises to examine or process a thing found at the premises in order to determine whether it may be seized under the warrant, if the executing officer or officer assisting believes on reasonable grounds that:

                     (a)  the equipment is suitable for the examination or processing; and

                     (b)  the examination or processing can be carried out without damaging the equipment or thing.

38N  Use of electronic equipment at premises

             (1)  The executing officer of a warrant in relation to premises or an officer assisting may operate electronic equipment at the premises to see whether evidential material is accessible by doing so, if he or she believes on reasonable grounds that the operation of the equipment can be carried out without damaging the equipment.

             (2)  If the executing officer or officer assisting finds that evidential material is accessible by operating the equipment, he or she may:

                     (a)  seize the equipment and any disk, tape or other associated device; or

                     (b)  if the material can be put in a documentary form by using facilities at the premises—operate those facilities to put the material in that form and seize the documents so produced; or

                     (c)  if the material can be transferred to a disk, tape or other storage device:

                              (i)  that is brought to the premises; or

                             (ii)  that is at the premises and the use of which for the purpose has been agreed to in writing by the occupier of the premises;

                            operate the equipment or other facilities to copy the material to the storage device and take the storage device from the premises.

             (3)  Equipment may be seized under paragraph (2)(a) only if:

                     (a)  it is not practicable to put the material in documentary form as mentioned in paragraph (2)(b) or to copy the material as mentioned in paragraph (2)(c); or

                     (b)  possession by the occupier of the equipment could constitute an offence against an Australian law.

             (4)  If the executing officer or officer assisting believes on reasonable grounds that:

                     (a)  evidential material may be accessible by operating electronic equipment at the premises; and

                     (b)  expert assistance is required to operate the equipment; and

                     (c)  the material may be destroyed, altered or otherwise interfered with if he or she does not take action under this subsection;

he or she may do whatever is necessary to secure the equipment, including locking it up or placing it under guard.

             (5)  The equipment may be secured:

                     (a)  for up to 24 hours; or

                     (b)  until the equipment has been operated by the expert;

whichever happens first.

             (6)  The executing officer or officer assisting must give to the occupier of the premises notice of his or her intention to secure equipment and of the fact that the equipment may be secured for up to 24 hours.

             (7)  If the executing officer or officer assisting believes on reasonable grounds that the expert assistance will not be available within 24 hours, he or she may apply to the Magistrate who issued the warrant for an extension of that period.

             (8)  The executing officer or officer assisting must give notice to the occupier of the premises of his or her intention to apply for an extension, and the occupier is entitled to be heard in relation to the application.

             (9)  Division 2 applies, with such modifications as are necessary, to the issuing of an extension.

38O  Compensation for damage to electronic equipment

             (1)  If:

                     (a)  damage is caused to equipment as a result of its being operated as mentioned in section 38M or 38N; and

                     (b)  the damage was caused as a result of:

                              (i)  a lack of reasonable care in selecting the person who was to operate the equipment; or

                             (ii)  a lack of reasonable care on the part of the person operating the equipment;

compensation for the damage is payable to the owner of the equipment.

             (2)  Compensation is payable out of money appropriated by the Parliament for the purpose.

             (3)  In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises or his or her employees or agents could have provided any warning or guidance as to the operation of the equipment that was appropriate in the circumstances but failed to do so.

38P  Copies of seized things to be provided

             (1)  Subject to subsection (2), if an executing officer or officer assisting seizes, under a warrant in relation to premises:

                     (a)  a document, film, computer file or other thing that can be readily copied; or

                     (b)  a storage device the information in which can be readily copied;

the executing officer or officer assisting must, if requested to do so by the occupier of the premises or another person who apparently represents the occupier and who is present when the warrant is executed, give a copy of the thing or the information to that person as soon as practicable after the seizure.

             (2)  Subsection (1) does not apply if:

                     (a)  the thing was seized under paragraph 38N(2)(b) or taken under paragraph 38N(2)(c); or

                     (b)  possession by the occupier of the document, film, computer file, thing or information could constitute an offence against an Australian law.

38Q  Occupier entitled to watch search

             (1)  If:

                     (a)  a warrant in relation to premises is being executed; and

                     (b)  the occupier of the premises or another person who apparently represents the occupier is present at the premises;

the occupier of the premises or that person is entitled to watch the search being conducted.

             (2)  The right to watch the search being conducted ceases if the person impedes the search.

             (3)  This section does not prevent 2 or more areas of the premises being searched at the same time.

38R  Receipts for things seized under warrant etc.

             (1)  If a thing is seized under a warrant or moved under subsection 38M(2), the executing officer or an officer assisting must provide a receipt for the thing.

             (2)  If 2 or more things are seized or moved, they may be covered in the one receipt.


 

Division 4Arrest and related matters

38S  Power to enter premises to arrest person

             (1)  Subject to subsection (2), if:

                     (a)  a police officer has, under this Act or under a warrant issued under the regulations, power to arrest a person; and

                     (b)  the police officer believes on reasonable grounds that the person is on any premises;

the police officer may, at any time of the day or night, enter the premises for the purpose of searching the premises for the person or arresting the person. In doing so, the police officer may use such force as is necessary and reasonable in the circumstances.

             (2)  A police officer must not enter a dwelling house at any time during the period commencing at 9 pm on a day and ending at 6 am on the following day unless the police officer believes on reasonable grounds that it will not be practicable to arrest the person, either at the dwelling house or elsewhere, at another time.

             (3)  In subsection (2):

dwelling house includes:

                     (a)  a vehicle; or

                     (b)  a room in a hotel, motel, boarding house or club, in which people ordinarily retire for the night.

38T  Use of force in making arrest

             (1)  In exercising powers of arrest under section 38S, a police officer must not use more force, or subject the person being arrested to greater indignity, than is necessary and reasonable to make the arrest or to prevent the escape of the person after the arrest.

             (2)  Without limiting subsection (1), a police officer must not, in the course of arresting a person:

                     (a)  if paragraph (b) does not applydo anything that is likely to cause the death of, or grievous bodily harm to, the person unless the police officer believes on reasonable grounds that doing that thing is necessary to protect a human life or to prevent serious injury to another person (including the police officer); or

                     (b)  if the person is attempting to escape arrest by fleeing—do anything that is likely to cause the death of, or grievous bodily harm to, the person unless:

                              (i)  the police officer believes on reasonable grounds that doing that thing is necessary to protect a human life or to prevent serious injury to another person (including the police officer); or

                             (ii)  the person has, if practicable, been called on to surrender and the police officer believes on reasonable grounds that the person cannot be arrested in any other manner.

38U  Persons to be informed of grounds of arrest

             (1)  When arresting a person, the police officer must inform the person of the reason for the arrest.

             (2)  It is sufficient if the person is informed of the substance of the reason, and it is not necessary that this be done in language of a precise or technical nature.

             (3)  Subsection (1) does not apply to the arrest of the person if:

                     (a)  the person should, in the circumstances, know the reason for the arrest; or

                     (b)  the person’s actions make it impracticable for the police officer to inform the person of the reason for the arrest.

38V  Power to search an arrested person

             (1)  The police officer arresting the person, or any police officer who is present at the arrest, may:

                     (a)  if he or she believes on reasonable grounds that it is prudent to do so in order to ascertain whether the person is carrying any seizable items—conduct a frisk search of the person at, or soon after, the time of arrest; or

                     (b)  if he or she suspects on reasonable grounds that the person is carrying any seizable items—conduct an ordinary search of the person at, or soon after, the time of the arrest.

             (2)  The police officer may seize any seizable items found as a result of the search.


 

Division 5General

38W  Conduct of ordinary searches and frisk searches

             (1)  An ordinary search or a frisk search of a person under this Part must, if practicable, be conducted by a person of the same sex as that of the person being searched.

             (2)  An officer assisting who is not a police officer must not take part in an ordinary search or a frisk search of a person under this Part.

38X  Announcement before entry

             (1)  A police officer must, before any person enters premises under a warrant or to arrest a person:

                     (a)  announce that he or she is authorised to enter the premises; and

                     (b)  give any person at the premises an opportunity to allow entry to the premises.

             (2)  A police officer is not required to comply with subsection (1) if he or she believes on reasonable grounds that immediate entry to the premises is required to ensure:

                     (a)  the safety of a person (including the police officer); or

                     (b)  that the effective execution of the warrant or the arrest is not frustrated.

38Y  Offence for making false statements in warrants

                   A person must not make, in an application for a warrant, a statement that the person knows to be false or misleading in a material particular.

Penalty:  Imprisonment for 2 years.

Note:          Under subsection 4D(1) of the Crimes Act 1914, this penalty is the maximum penalty for the offence. Subsection 4B(2) of that Act allows a court to impose an appropriate fine instead of, or in addition to, a term of imprisonment.

38Z  Offences relating to telephone warrants

                   A person must not:

                     (a)  state the name of a Magistrate in a document that purports to be a form of warrant under section 38H unless that Magistrate issued the warrant; or

                     (b)  state on a form of warrant under that section a matter that, to the person’s knowledge, departs in a material particular from the form authorised by the Magistrate; or

                     (c)  purport to execute, or present to a person, a document that purports to be a form of warrant under that section that:

                              (i)  the person knows has not been approved by a Magistrate under that section; or

                             (ii)  the person knows to depart in a material particular from the terms authorised by a Magistrate under that section; or

                     (d)  send to a Magistrate a form of warrant under that section that is not the form of warrant that the person purported to execute.

Penalty:  Imprisonment for 2 years.

Note:          Under subsection 4D(1) of the Crimes Act 1914, this penalty is the maximum penalty for any offence under this section. Subsection 4B(2) of that Act allows a court to impose an appropriate fine instead of, or in addition to, a term of imprisonment.

38ZA  Retention of things seized

             (1)  Subject to subsection (2), if a police officer seizes a thing while executing a warrant issued under Division 2, he or she must:

                     (a)  inform the Attorney‑General that the thing has been so seized; and

                     (b)  retain the thing pending the Attorney‑General’s direction under subsection (4) about how to deal with the thing; and

                     (c)  comply with any such direction that the Attorney‑General gives.

             (2)  If the thing seized is not evidential material relating to the proceeding or investigation relevant to the warrant, the police officer may make the thing available to officers of the police force of a State or Territory for the purpose of investigating or prosecuting an offence to which the thing relates.

             (4)  The Attorney‑General may, by written notice, give the police officer a direction about how to deal with the thing.

             (5)  Without limiting the directions that may be given, a direction may require the police officer to send the thing to a foreign country.

             (6)  The Attorney‑General must direct the police officer to return the thing if:

                     (a)  the reason for its seizure no longer exists; or

                     (b)  it is decided that the thing is not to be used in evidence in a foreign country or in respect of a criminal proceeding in Australia;

unless the thing is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.

38ZB  Arrest of person released on bail

             (1)  If:

                     (a)  a person arrested under a warrant issued under the regulations has been released on bail by order of a Magistrate; and

                     (b)  a police officer has reasonable grounds for believing that the person has contravened, or is about to contravene, a term or condition of a recognisance on which bail was granted to the person;

the police officer may, without warrant, arrest the person.

             (2)  A person arrested under subsection (1) must, as soon as practicable, be brought before a Magistrate.


 

Part VIIIMiscellaneous

  

39  Arrangements with Governors of States and Administrator of Norfolk Island

             (1)  The Governor‑General may make arrangements with the Governor of a State with respect to the administration of this Act, including arrangements for the performance of the functions of a Magistrate under this Act by a Magistrate of that State.

             (2)  The Governor‑General may arrange with the Governor of a State with whom an arrangement is in force under subsection (1) for the variation or revocation of the arrangement.

          (2A)  The Governor‑General may make arrangements with the Administrator of Norfolk Island with respect to the administration of this Act, including arrangements for the performance of the functions of a Magistrate under this Act by a Magistrate of Norfolk Island.

          (2B)  The Governor‑General may arrange with the Administrator of Norfolk Island for the variation or revocation of an arrangement in force under subsection (2A).

             (3)  A copy of each instrument by which an arrangement under this section is made, varied or revoked shall be published in the Gazette.

39A  Requests by Attorney‑General on behalf of a defendant

             (1)  If a defendant in a proceeding (original proceeding) relating to a criminal matter thinks that it is necessary for the purposes of the proceeding that:

                     (a)  evidence should be taken in a foreign country; or

                     (b)  a document or other article in a foreign country should be produced; or

                     (c)  a thing located in a foreign country should be seized; or

                     (d)  arrangements should be made for a person who is in a foreign country to come to Australia to give evidence relevant to the proceeding;

the defendant may apply to the relevant court (see subsection (1A)) for a certificate that it would be in the interests of justice for the Attorney‑General to make any appropriate request to the foreign country under Part II, III or IV so that:

                     (e)  the evidence may be taken; or

                      (f)  the document or article may be produced; or

                     (g)  the thing may be seized; or

                     (h)  the arrangements may be made.

          (1A)  For the purposes of subsection (1), the relevant court is:

                     (a)  if the proceeding is being heard in the Federal Court of Australia—that Court; or

                     (b)  otherwise—the Supreme Court of the State or Territory in which the proceeding is being heard.

             (2)  Before making a decision on the application, the court must give an opportunity to:

                     (a)  all parties to the original proceeding; and

                     (b)  the Attorney‑General;

to appear before the court and be heard on the merits of the application.

             (3)  In deciding whether to issue a certificate, the court must have regard to the following matters:

                     (a)  whether the foreign country is likely to grant such a request made by the Attorney‑General on behalf of the defendant;

                     (b)  the extent to which the material (whether it is evidence, a document, an article or a thing) that the defendant seeks to obtain from the foreign country would not otherwise be available;

                     (c)  whether the court hearing the original proceeding would be likely to admit the material into evidence in the proceeding;

                     (d)  the likely probative value of the material, if it were admitted into evidence in the proceeding, with respect to any issue likely to be determined in the proceeding;

                     (e)  whether the defendant would be unfairly prejudiced if the material were not available to the court.

             (4)  Subsection (3) does not prevent the court from having regard to any other matter that it considers relevant.

             (5)  If the court issues a certificate:

                     (a)  the court must send a copy of the certificate to the Attorney‑General; and

                     (b)  the Attorney‑General must, in accordance with the certificate, make a request on behalf of the defendant to the foreign country for international assistance unless he or she is of the opinion, having regard to the special circumstances of the case, that the request should not be made.

39B  Certificate by Attorney‑General if foreign country refuses request made under section 39A

             (1)  If a foreign country refuses a request made under subsection 39A(5), the Attorney‑General must give a certificate in writing to that effect.

             (2)  A certificate under subsection (1) is prima facie evidence of the facts stated in it.

40  Delegation

             (1)  The Attorney‑General may (including his or her powers under section 10) delegate to an officer of the Attorney‑General’s Department all or any of his or her powers under this Act.

41  Jurisdiction of courts

                   A matter arising under a mutual assistance treaty shall, for the purposes of section 38 of the Judiciary Act 1903, be deemed not to be a matter arising directly under a treaty.

42  Evidence

                   A certificate by the Attorney‑General stating that:

                     (a)  Australia or a specified foreign country is a party to a specified treaty;

                     (b)  a specified treaty entered into force for Australia or a specified foreign country on a specified day; or

                     (c)  on a day specified in the certificate, a specified treaty remained in force for Australia or a specified foreign country;

is, for the purpose of any proceedings under this Act, prima facie evidence of the matters stated in the certificate.

43  Authentication of documents

             (1)  In a proceeding under this Act or a proceeding under or pursuant to a proceeds of crime law arising directly or indirectly from a request made under this Act, any document that is duly authenticated is admissible in evidence.

             (2)  A document is duly authenticated for the purposes of subsection (1) if:

                     (a)  it purports to be signed or certified by a Judge, Magistrate or officer in or of a foreign country; and

                     (b)  it purports to be sealed with an official or public seal of the foreign country or of a Minister of State, or of a Department or officer of the Government, of the foreign country.

             (3)  Nothing in this section prevents the proof of any matter, or the admission in evidence of any document, in accordance with any other law of the Commonwealth or any law of a State or Territory.

43A  Admissibility of certain documents—requests under the Money‑Laundering Convention

             (1)  In any proceeding arising directly or indirectly from a request made by a foreign country for international assistance in a criminal matter (including a proceeding under a proceeds of crime law), a document is admissible in evidence if the Attorney‑General provides a certificate stating that the document was provided by a specified Party to the Money‑Laundering Convention, in connection with a request for assistance of the type covered by the Convention.

             (2)  The regulations may specify the Parties to the Money‑Laundering Convention for the purposes of subsection (1).

43B  Restriction on use of information etc.

             (1)  If, as a result of a request made by the Attorney‑General under this Act, any material (whether it is evidence, a document, an article or a thing) has been sent to Australia by a foreign country for the purposes of a proceeding or investigation in relation to a criminal matter, the material is not to be used intentionally for any other purpose without the approval of the Attorney‑General.

             (2)  The material is inadmissible in evidence in any proceeding other than the proceeding in respect of which it was obtained unless the Attorney‑General has approved its use for the purposes of that other proceeding.

             (3)  Any information, document, article or thing obtained directly or indirectly from a person by making use of the material:

                     (a)  otherwise than for the purposes of the proceeding or investigation in respect of which it was obtained; and

                     (b)  without the approval of the Attorney‑General;

is inadmissible in evidence in any other proceeding and may not be used for the purposes of any other investigation.

             (4)  Any person who contravenes subsection (1) is guilty of an offence punishable, on conviction, by a term of imprisonment not exceeding 2 years.

Note:          Subsection 4B(2) of the Crimes Act 1914 allows a court to impose an appropriate fine instead of, or in addition to, a term of imprisonment.

             (5)  For the purposes of this section, disclosure of any material is taken to be a use of that material.

43C  Requests for international assistance not to be disclosed

                   A person who, because of his or her office or employment, has knowledge of:

                     (a)  the contents of a request for international assistance made by a foreign country to Australia under this Act; or

                     (b)  the fact that such a request has been made; or

                     (c)  the fact that such a request has been granted or refused;

must not intentionally disclose those contents or that fact except if:

                     (d)  it is necessary to do so in the performance of his or her duties; or

                     (e)  the Attorney‑General has given his or her approval to the disclosure of those contents or that fact.

Penalty:  Imprisonment for 2 years.

Note:          Under subsection 4D(1) of the Crimes Act 1914, this penalty is the maximum penalty for any offence under this section. Subsection 4B(2) of that Act allows a court to impose an appropriate fine instead of, or in addition to, a term of imprisonment.

44  Regulations

                   The Governor‑General may make regulations, not inconsistent with this Act, prescribing matters:

                     (a)  required or permitted by this Act to be prescribed; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Act;

and, in particular:

                     (c)  prescribing the practice and procedure in relation to the performance by Magistrates of functions under this Act, including the summoning of witnesses, the production of documents, the taking of evidence on oath, the administering of oaths, the payment of expenses and allowances of witnesses and the protection and immunity of Magistrates, of barristers and solicitors appearing before Magistrates and of witnesses; and

                     (d)  prescribing penalties not exceeding a fine of $1,000 for offences against the regulations.


Notes to the Mutual Assistance in Criminal Matters Act 1987

Note 1

The Mutual Assistance in Criminal Matters Act 1987 as shown in this compilation comprises Act No. 85, 1987 amended as indicated in the Tables below.

All relevant information pertaining to application, saving or transitional provisions prior to 9 October 1996 are not included in this compilation. For subsequent information see Table A.

The Mutual Assistance in Criminal Matters Act 1987 was modified by the A.C.T. Self‑Government (Consequential Provisions) Regulations (as amended) see Table B.

Table of Acts

Act

Number
and year

Date
of Assent

Date of commencement

Application, saving or transitional provisions

Mutual Assistance in Criminal Matters Act 1987

85, 1987

5 June 1987

Ss. 1 and 2: Royal Assent
Remainder: 1 Aug 1988 (see Gazette 1988, No. S225)

 

Crimes Legislation Amendment Act (No. 2) 1988

66, 1988

15 June 1988

Ss. 1–3, 12 and 20–23: Royal Assent
Ss. 4–11: 13 July 1988
Ss. 13–19: 1 Dec 1988 (see Gazette 1988, No. S366)
S. 24: 15 June 1988
Part VI (ss.
25–28): 1 Sept 1988 (see s. 2(5) and Gazette 1988, No. S256)

as amended by

 

 

 

 

Law and Justice Legislation Amendment Act 1988

120, 1988

14 Dec 1988

Part VII (ss.
25–27): 15 June 1988 (a)

Law and Justice Legislation Amendment Act 1988

120, 1988

14 Dec 1988

Ss. 44–46: Royal Assent
S. 47: 5 Sept 1989 (see Gazette 1989, No. S296) (b)

Crimes Legislation Amendment Act (No. 2) 1991

123, 1991

23 Aug 1991

Part 7 (ss. 32–34): 20 Sept 1991 (c)

Cash Transaction Reports Amendment Act 1991

188, 1991

6 Dec 1991

Ss. 1–3 and 7: Royal Assent
Remainder: 6 Dec 1992 (see Gazette 1992, No. GN25)

S. 22

Crimes Legislation Amendment Act 1992

164, 1992

11 Dec 1992

Ss. 3–17: 1 Feb 1993 (see Gazette 1993, No. GN1)
Remainder: 8 Jan 1993

Crimes and Other Legislation Amendment Act 1994

182, 1994

19 Dec 1994

S. 31: Royal Assent (d)

Mutual Assistance in Criminal Matters Legislation Amendment Act 1996

40, 1996

9 Oct 1996

Schedule 1 (items 1–101): 1 Mar 1997 (see Gazette 1997, No. S50) (e)

Sch. 1 (item 101) [see Table A]

Crimes Amendment (Forensic Procedures) Act 2001

22, 2001

6 Apr 2001

Schedule 2: Royal Assent (f)

Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001

24, 2001

6 Apr 2001

S. 4(1), (2) and Schedule 36: (g)

S. 4(1) and (2) [see Table A]

International Criminal Court (Consequential Amendments) Act 2002

42, 2002

27 June 2002

Schedules 1–7: 26 Sept 2002 (see s. 2(1) (item 2) and Gazette 2002, No. GN38)
Remainder: 28 June 2002

Suppression of the Financing of Terrorism Act 2002

66, 2002

5 July 2002

Schedule 2 (item 22): Royal Assent

Proceeds of Crime (Consequential Amendments and Transitional Provisions) Act 2002

86, 2002

11 Oct 2002

Ss. 1–3: Royal Assent
Remainder: 1 Jan 2003 (see s. 2(1) and Gazette 2002, No. GN44)

Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act (No. 2) 2004

127, 2004

31 Aug 2004

Schedule 5 (items 10–16): 28 Sept 2004

Surveillance Devices Act 2004

152, 2004

15 Dec 2004

15 Dec 2004

Telecommunications (Interception) Amendment Act 2006

40, 2006

3 May 2006

Schedule 1 (item 22): 13 June 2006 (see F2006L01623)

Federal Court of Australia Amendment (Criminal Jurisdiction) Act 2009

106, 2009

6 Nov 2009

Schedule 1 (items 109, 110): 4 Dec 2009

Personal Property Securities (Corporations and Other Amendments) Act 2010

96, 2010

6 July 2010

Schedule 3 (items 3, 4): [see Note 2]

Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Act 2011

3, 2011

2 Mar 2011

Schedule 2 (items 26, 27): 3 Mar 2011


(a)     The Crimes Legislation Amendment Act (No. 2) 1988 was amended by Part VII (sections
25–27) only of the Law and Justice Legislation Amendment Act 1988, subsection 2(4) of which provides as follows:

                  (4)   Part VII shall be taken to have commenced on 15 June 1988.

(b)     The Mutual Assistance in Criminal Matters Act 1987 was amended by sections 44–47 only of the Law and Justice Legislation Amendment Act 1988, subsections 2(1) and (9) of which provide as follows:

                  (1)   Subject to this section, this Act commences on the day on which it receives the Royal Assent.

                  (9)   Sections 20, 47, 51, 52, 53, 57, 62 and 65 commence on a day or days to be fixed by Proclamation.

(c)     The Mutual Assistance in Criminal Matters Act 1987 was amended by Part 7 (sections 32–34) only of the Crimes Legislation Amendment Act (No. 2) 1991, subsection 2(2) of which provides as follows:

                  (2)   Sections 5 to 10 (inclusive), Parts 3, 4, 5, 6, 7 and 9 and sections 40 to 50 (inclusive) commence 28 days after the day on which this Act receives the Royal Assent.

(d)     The Mutual Assistance in Criminal Matters Act 1987 was amended by section 31 only of the Crimes and Other Legislation Amendment Act 1994, subsection 2(3) of which provides as follows:

                  (3)   The amendment made by this Act to the Mutual Assistance in Criminal Matters Act 1987 commences on the day on which this Act receives the Royal Assent.

(e)     The Mutual Assistance in Criminal Matters Act 1987 was amended by Schedule 1 (items
1–101) only of the Mutual Assistance in Criminal Matters Legislation Amendment Act 1996, subsection 2(2) of which provides as follows:

         (2)   The items in the Schedules commence on a day or days to be fixed by Proclamation.

(f)      The Mutual Assistance in Criminal Matters Act 1987 was amended by Schedule 2 only of the Crimes Amendment (Forensic Procedures) Act 2001, subsection 2(1) of which provides as follows:

         (1)   Sections 1, 2 and 3, items 2 and 3 of Schedule 1, and Schedule 2 commence on the day on which this Act receives the Royal Assent.

(g)     The Mutual Assistance in Criminal Matters Act 1987 was amended by Schedule 36 only of the Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001, subsection 2(1) of which provides as follows:

                 (1)   Subject to this section, this Act commences at the later of the following times:

                              (a)   immediately after the commencement of item 15 of Schedule 1 to the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000;

         Item 15 commenced on 24 May 2001.


Table of Amendments

ad. = added or inserted     am. = amended     rep. = repealed     rs. = repealed and substituted

Provision affected

How affected

Part I

 

S. 3......................................

am. No. 66, 1988; No. 164, 1992; No. 40, 1996; No. 22, 2001; No. 86, 2002

S. 4A....................................

ad. No. 24, 2001

Ss. 5, 6................................

rs. No. 40, 1996

S. 7......................................

am. Nos. 123 and 188, 1991; No. 182, 1994

 

rs. No. 40, 1996

S. 8......................................

am. No. 66, 1988; No. 40, 1996

S. 10....................................

rs. No. 40, 1996

S. 11....................................

am. No. 40, 1996

Part II

 

S. 12....................................

rs. No. 40, 1996

Heading to s. 13.................

am. No. 152, 2004

S. 13....................................

am. Nos. 66 and 120, 1988; No. 40, 1996

S. 13A..................................

ad. No. 152, 2004

 

am. No. 40, 2006

Part III

 

S. 14....................................

am. No. 40, 1996

Heading to s. 15.................

am. No. 40, 1996

S. 15....................................

am. No. 40, 1996; No. 127, 2004

Part IV

 

Division 1

 

S. 16....................................

am. No. 40, 1996

S. 19....................................

am. Nos. 66 and 120, 1988

S. 20....................................

am. No. 66, 1988

Heading to s. 21.................

am. No. 40, 1996

S. 21....................................

am. No. 40, 1996

S. 24....................................

rep. No. 40, 1996

S. 25....................................

am. No. 40, 1996

S. 25A..................................

ad. No. 40, 1996

 

rs. No. 3, 2011

Division 2

 

Ss. 26, 27............................

am. No. 66, 1988

Part V

 

S. 29....................................

am. No.  40, 1996

S. 30....................................

rep. No. 40, 1996

S. 31....................................

am. No. 40, 1996

S. 31A..................................

ad. No. 40, 1996

 

rs. No. 3, 2011

Part VI

 

Division 1

 

Ss. 32, 33............................

am. No. 40, 1996; No. 86, 2002

Division 2

 

Div. 2 of Part VI...................

rs. No. 86, 2002

Subdivision A

 

S. 34....................................

am. No. 120, 1988; No. 22, 2001

 

rs. No. 86, 2002

Ss. 34A–34H.......................

ad. No. 86, 2002

Subdivision B

 

Ss. 34J–34M.......................

ad. No. 86, 2002

Subdivision C

 

S. 34N..................................

ad. No. 86, 2002

Ss. 34P, 34Q.......................

ad. No. 86, 2002

Subdivision D

 

Ss. 34R–34W......................

ad. No. 86, 2002

Subdivision E

 

Ss. 34X–34Z........................

ad. No. 86, 2002

Subdivision F

 

Ss. 34ZA–34ZF...................

ad. No. 86, 2002

Division 3

 

Div. 3 of Part VI...................

ad. No. 86, 2002

S. 35....................................

am. No. 40, 1996

 

rs. No. 86, 2002

Ss. 35A–35H.......................

ad. No. 86, 2002

Ss. 35J–35M.......................

ad. No. 86, 2002

Ss. 36, 37............................

am. No. 40, 1996

 

rep. No. 86, 2002

Heading to Part VIA...........

am. No. 188, 1991

 

rep. No. 66, 2002

Part VIA...............................

ad. No. 123, 1991

 

rep. No. 66, 2002

S. 37A..................................

ad. No. 123, 1991

 

am. No. 188, 1991; No. 40, 1996

 

rep. No. 66, 2002

Part VII.................................

rep. No. 40, 1996

S. 38....................................

rep. No. 40, 1996

Part VIIA

 

Part VIIA..............................

ad. No. 40, 1996

Division 1

 

S. 38A..................................

ad. No. 40, 1996

Division 2

 

Ss. 38B–38I.........................

ad. No. 40, 1996

Division 3

 

Ss. 38J–38R........................

ad. No. 40, 1996

Division 4

 

Ss. 38S–38V........................

ad. No. 40, 1996

Division 5

 

Ss. 38W–38Z......................

ad. No. 40, 1996

S. 38ZA................................

ad. No. 40, 1996

 

am. No. 127, 2004

S. 38ZB................................

ad. No. 40, 1996

Part VIII

 

Heading to s. 39.................

rs. No. 40, 1996

S. 39....................................

am. No. 40, 1996

S. 39A..................................

ad. No. 40, 1996

 

am. No. 106, 2009

S. 39B..................................

ad. No. 40, 1996

S. 40....................................

am. No. 40, 1996

S. 43....................................

am. No. 40, 1996

S. 43A..................................

ad. No. 164, 1992

 

am. No. 40, 1996

Ss. 43B, 43C.......................

ad. No. 40, 1996


Note 2

Personal Property Securities (Corporations and Other Amendments) Act 2010 (No. 96, 2010)

The following amendments commence on 1 February 2012 or an earlier time determined by the Minister (see section 306 of the Personal Property Securities Act 2009):

Schedule 3

3  At the end of section 35J

Add:

             (4)  Subsection 73(2) of the Personal Property Securities Act 2009 applies to the charge (to the extent, if any, to which that Act applies in relation to the property charged).

Note 1:       The effect of this subsection is that the priority between the charge and a security interest in the property to which the Personal Property Securities Act 2009 applies is to be determined in accordance with this Act rather than the Personal Property Securities Act 2009.

Note 2:       Subsection 73(2) of the Personal Property Securities Act 2009 applies to charges created by this section after the commencement of subsection (4) (which is at the registration commencement time within the meaning of the Personal Property Securities Act 2009).

4  Subsection 35L(4) (definition of registration authority)

Repeal the definition, substitute:

registration authority, in relation to property of a particular kind, means:

                     (a)  an authority responsible for administering a law of the Commonwealth, a State or a Territory providing for registration of title to, or charges over, property of that kind; or

                     (b)  the Registrar of Personal Property Securities, if the Personal Property Securities Act 2009 provides for the registration of data in relation to that kind of personal property for the purposes of paragraph 148(c) of that Act.

Note:       The Personal Property Securities Act 2009 provides for the registration of such data if regulations are made for the purposes of paragraph 148(c) of that Act.

As at 7 March 2011 the amendments are not incorporated in this compilation.


Table A

Application, saving or transitional provisions

Mutual Assistance in Criminal Matters Legislation Amendment Act 1996 (No. 40, 1996)

Schedule 1

101  Regulations under subsection 7(2)

                   Any regulations:

                     (a)  made under subsection 7(2) of the Mutual Assistance in Criminal Matters Act 1987 as in force immediately before the commencement of item 3 in this Schedule; and

                     (b)  making provision to the effect that that Act applies to a country, or to a number of countries, subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect, in whole or in part, to a particular mutual assistance treaty;

continue in force on and after the commencement of that item, and may be amended or repealed, as if they were regulations made under subsection 7(2) of that Act as amended by that item.

 

Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001 (No. 24, 2001)

4  Application of amendments

             (1)  Subject to subsection (3), each amendment made by this Act applies to acts and omissions that take place after the amendment commences.

             (2)  For the purposes of this section, if an act or omission is alleged to have taken place between 2 dates, one before and one on or after the day on which a particular amendment commences, the act or omission is alleged to have taken place before the amendment commences.


Table B

Modifications

A.C.T. Self‑Government (Consequential Provisions) Regulations

Subsection 3 (1): (definition of Governor):

Omit the definition, substitute the following definition:

Governor, means:

                     (a)  in relation to the Australian Capital Territory—the Chief Minister of the Australian Capital Territory; and

                     (b)  in relation to the Northern Territory—the Administrator of the Northern Territory;”.

Subsection 3 (1): (Definition of State):

Before “the Northern Territory” insert “the Australian Capital Territory and”.

Subsection 3 (1): (Definition of Territory):

Before “the Northern Territory” insert “the Australian Capital Territory or”.