Statutory Rules 1993 No. 3051

__________________

Mutual Assistance in Criminal Matters (Republic of Korea) Regulations

I, The Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Mutual Assistance in Criminal Matters Act 1987.

Dated 17 December 1993.

BILL HAYDEN

Governor-General

By His Excellency’s Command,

M. LAVARCH

Attorney-General

____________

Citation

1. These Regulations may be cited as the Mutual Assistance in Criminal Matters (Republic of Korea) Regulations.

Commencement

2. These Regulations commence on 19 December 1993.

Interpretation

3. In these Regulations:

“the Act” means the Mutual Assistance in Criminal Matters Act 1987;

“the Treaty” means the Treaty between Australia and the Republic of Korea done at Canberra on 25 August 1992 (being the Treaty a copy of the English text of which is set out in the Schedule).

Application of the Act

4. The Act applies in relation to the Republic of Korea subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to the Treaty.

_______________________________________________________

SCHEDULE Regulations 3 and 4

TREATY BETWEEN AUSTRALIA AND THE REPUBLIC OF KOREA ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS

Australia and the Republic of Korea,

Desiring to improve the effectiveness of both countries in the prevention, investigation, prosecution and suppression of crime through cooperation and mutual assistance in criminal matters,

Have agreed as follows:

Article 1

Scope of application

1. The Contracting Parties shall, in accordance with this Treaty, grant to each other assistance in investigations or proceedings in respect of criminal matters.

2. Criminal matter includes matters connected with offences against a law relating to taxation, customs duties, foreign exchange control and other revenue matters.

3. Such assistance shall consist of:

(a) taking of evidence and obtaining of statements of persons;

(b) provision of documents and other records;

(d) location and identification of persons;

(e) execution of requests for search and seizure;

(f) measures to assist in relation to proceeds of crime;

(g) seeking the consent of persons to be available to give evidence or to assist in investigations in the Requesting State, and where such persons are in custody arranging for their temporary transfer to that State;

(h) service of documents; and

(i) other assistance consistent with the objects of this Treaty which is not inconsistent with the law of the Requested State.

4. Assistance shall not include:

(a) the extradition of any person;

(b) the execution in the Requested State of criminal judgments imposed in the Requesting State except to the extent permitted by the law of the Requested State and this Treaty; and

Article 2

Other assistance

This Treaty shall not derogate from obligations subsisting between the Contracting Parties whether pursuant to other treaties or arrangements or otherwise nor prevent the Contracting Parties providing assistance to each other pursuant to other treaties or arrangements or otherwise.

Article 3

Central authorities

1. The Contracting Parties shall each appoint a Central Authority to transmit and receive requests for the purpose of this Treaty. The Central Authority of Australia shall be the Attorney-General of the Commonwealth or the Attorney-General’s Department if so designated by the Attorney-General and the Central Authority of the Republic of Korea shall be the Minister of Justice or an official designated by that Minister. On entry into force of this Treaty, each Contracting Party shall inform the other of the title of its respective Central Authority. Each Contracting Party shall inform the other of any change in its Central Authority.

2. The Central Authorities shall communicate through the diplomatic channel or directly with one another for the purposes of this Treaty.

Article 4

Refusal of assistance

1. Assistance may be refused if:

(a) the request relates to the prosecution or punishment of a person for an offence that is regarded by the Requested State as:

(i) an offence of a political character; or

(ii) an offence under military law of the Requested State which is not also an offence under the ordinary criminal law of the Requested State;

(b) the request relates to the prosecution of a person for an offence in respect of which, in the Requested or Requesting State, the offender has been finally acquitted or pardoned or has served the sentence imposed;

(c) there are substantial grounds for believing that the request for assistance has been made for the purpose of prosecuting or punishing a person on account of that person’s race, sex, religion, nationality or political opinions or that that person’s position may be prejudiced for any of these reasons;

(d) the Requested State is of the opinion that the request, if granted, would prejudice its sovereignty, security, national interest or other essential interests;

(e) the request relates to the prosecution or punishment of a person for an offence where the acts or omissions alleged to constitute that offence would not, if they had taken place within the jurisdiction of the Requested State, have constituted an offence;

(f) the request relates to the prosecution or punishment of a person for an offence which, had it been committed in the Requested State, could no longer be prosecuted by reason of lapse of time or any other reason; or

(g) provision of the assistance sought could prejudice an investigation or proceeding in the Requested State or prejudice the safety of any person.

2. Before refusing to grant a request for assistance the Requested State shall consider whether assistance may be granted subject to such conditions as it deems necessary. If the Requesting State accepts assistance subject to conditions, it shall comply with those conditions.

Article 5

Contents of requests

1. Requests for assistance shall include:

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

(b) the name of the competent authority conducting the investigation or proceedings to which the request relates;

(d) except in cases of request for service of documents, a description of the acts or omissions or matters alleged to constitute the offence;

(e) the court order, if any, sought to be enforced and a statement to the effect that it is a final order;

(f) details of any particular procedure or requirement that the Requesting State wishes to be followed, including a statement as to whether sworn or affirmed evidence or statements are required;

(g) the requirements, if any, of confidentiality and the reasons therefore; and

(h) specification of any time limit within which compliance with the request is desired.

2. Requests for assistance, to the extent necessary and insofar as possible, shall also include:

(a) the identity, nationality and location of the person or persons who are the subject of or who may have information relevant to the investigation or proceeding;

(b) a description of the information, statement or evidence sought;

(c) a description of the documents, records or articles of evidence to be produced as well as a description of the appropriate person to be asked to produce them; and

(d) information as to the allowances and expenses to which a person appearing in the Requesting State will be entitled.

3. Requests, supporting documents and other communications made pursuant to this Treaty shall be in the language of the Requesting State and accompanied by a translation into the language of the Requested State.

4. If the Requested State considers that the information contained in the request is not sufficient in accordance with this Treaty to enable the request to be dealt with, it may request additional information.

Article 6

Execution of requests

1. Requests for assistance shall be carried out in accordance with the law of the Requested State and, insofar as it is not incompatible with that law, in the manner requested by the Requesting State.

2. The Requested State may postpone the delivery of material requested if such material is required for proceedings in respect of criminal or civil matters in that State. The Requested State shall, upon request, provide certified copies of documents.

3. The Requested State shall promptly inform the Requesting State of circumstances, when they become known to the Requested State, which are likely to cause a significant delay in responding to the request.

4. The Requested State shall promptly inform the Requesting State of a decision of the Requested State not to comply in whole or in part with a request for assistance and the reason for that decision.

Article 7

Return of material to requested state

Where required by the Requested State, the Requesting State shall return the material provided under this Treaty when no longer needed for the relevant investigation or proceeding.

Article 8

Protecting confidentiality and restricting use of

evidence and information

1. The Requested State, if so requested, shall keep confidential the application for assistance, the contents of a request and its supporting documents, and the fact of granting of such assistance. If the request cannot be executed without breaching confidentiality, the Requested State shall so inform the Requesting State which shall then determine whether the request should nevertheless be executed.

2. The Requesting State, if so requested, shall keep confidential information and evidence provided by the Requested State, except to the extent that the evidence and information is needed for the investigation and proceeding described in the request.

3. The Requesting State shall not use information or evidence obtained, nor anything derived from either, for purposes other than those stated in a request without the prior consent of the Requested State.

Article 9

Service of documents

1. The Requested State shall effect service of documents which are transmitted to it for this purpose by the Requesting State.

2. A request to effect service of a document requiring the appearance of a person shall be made to the Requested State not less than forty-five days before the date on which the appearance is required. In urgent cases, the Requested State may waive this requirement.

3. The Requested State may effect service of any document by mail or, if the Requesting State so requests, in any other manner required by the law of the Requesting State which is not inconsistent with the law of the Requested State.

4. The Requested State shall forward to the Requesting State proof of service of the documents. If service cannot be effected, the Requesting Party shall be so informed and advised of the reasons.

Article 10

Taking of evidence

1. Where a request is made for the purpose of proceedings in relation to a criminal matter in the Requesting State, the Requested State shall, upon request, take the evidence of witnesses for transmission to the Requesting State.

2. For the purposes of this Treaty, the giving or taking of evidence shall include the production of documents, records or other material.

3. For the purposes of requests under this Article the Requesting State shall specify the subject matter about which persons are to be examined, including any questions to be put.

4. To the extent not prohibited by the law of the Requested State, judges or officials of the Requesting State and other persons involved in the investigation or proceedings shall be permitted to be present at the execution of the request and to participate in the proceedings in the Requested State. The right to participate in the proceedings shall include the right of any person present to pose questions through the judges or officials of the Requested State.

5. A person who is required to give evidence in the Requested State under this Article may decline to give evidence where the law of the Requested State permits that witness to decline to give evidence in similar circumstances in proceedings originating in the Requested State.

6. Where a person who is required to give evidence in the Requested State under this Article claims that there is a right to decline to give evidence in the proceedings in the Requesting State, referred to in paragraph 1, the Requested State shall either:

(a) request the Central Authority of the Requesting State to provide a certificate as to the existence of that right; or

(b) nevertheless require the person to give the evidence and transmit the evidence to the Requesting State for its determination as to the existence of the right claimed by the person.

7. Where the Requested State receives a certificate from the Requesting State as to the existence of the right claimed by the person, that certificate, in the absence of evidence to the contrary, shall provide sufficient evidence as to the existence of the right.

Article 11

Obtaining of statements of persons

1. The Requested State shall, upon request, endeavour to obtain statements of persons for the purpose of an investigation or proceeding in relation to a criminal matter in the Requesting State.

2. For the purposes of requests under this Article, the Requesting State shall specify the subject matter about which it seeks statements from persons including any questions which it seeks to be put to the person.

Article 12

Availability of persons in custody to give evidence or

to assist investigations

1. A person in custody in the Requested State may, at the request of the Requesting State, be temporarily transferred to the Requesting State to assist investigations or to give evidence.

2. The Requested State shall not transfer a person in custody to the Requesting State unless the person consents to that transfer.

3. While the person transferred is required to be held in custody under the law of the Requested State, the Requesting State shall hold that person in custody and shall return that person in custody to the Requested State at the conclusion of the matter in relation to which transfer was sought under paragraph 1 or at such earlier time as the person’s presence is no longer required.

4. Where the Requested State advises the Requesting State that the transferred person is no longer required to be held in custody, that person shall be set at liberty and be treated as a person referred to in Article 13.

5. For the purposes of this Article, the person transferred shall receive credit for service of any sentence imposed in the Requested State for time served in the custody of the Requesting State.

Article 13

Availability of other persons in custody to give evidence or

to assist investigations

1. The Requesting State may request the assistance of the Requested State in obtaining a person’s consent to:

(a) appear as a witness in proceedings in relation to a criminal matter in the Requesting State unless that person is the person charged; or

(b) assist investigations in relation to a criminal matter in the Requesting State.

2. The Requested State shall, if satisfied that satisfactory arrangements for that person’s security will be made by the Requesting State, invite the person to consent to appear as a witness in proceedings or to assist in the investigations. The Requested State shall promptly inform the Requesting State of that person’s response.

Article 14

Safe conduct

1. Subject to paragraph 2, where a person is in the Requesting State pursuant to a request made under Articles 12 or 13:

(a) that person shall not be detained, prosecuted or punished in the Requesting State, for any offence, nor be subject to any civil suit, being a civil suit to which the person could not be subjected if the person were not in the Requesting State, in respect of any act or omission which preceded the person’s departure from the Requested State; and

(b) that person shall not, without that person's consent, be required to give evidence in any proceeding or to assist any investigation other than the proceeding or investigation to which the request relates.

2. Paragraph 1 shall cease to apply if that person, being free to leave, has not left the Requesting State within a period of fifteen days after that person has been officially notified that that person’s presence is no longer required or, having left, has voluntarily returned.

3. A person who does not consent to a request pursuant to Articles 12 or 13 shall not, by reason thereof, be liable to any penalty or be subjected to any coercive measure notwithstanding any contrary statement in the request or in any document accompanying the request.

Article 15

Provision of publicly available and official documents

1. The Requested State shall provide copies of documents and records that are open to public access as part of a public register or otherwise, or that are available for purchase by the public.

2. The Requested State may provide copies of any official document or record in the same manner and under the same conditions as such document or record may be provided to its own law enforcement and judicial authorities.

Article 16

Certification and authentication

1. Documents or materials supporting a request for assistance involving the use of compulsory measures or the forfeiture of proceeds of crime shall be authenticated in accordance with paragraph 2. Documents or materials furnished in response to a request shall be similarly authenticated if requested.

2. Documents and materials are authenticated for the purposes of this Treaty if:

(a) they purport to be signed or certified by a judge, magistrate or other officer in or of the State sending the document; and

(b) they purport to be sealed with an official seal of the State sending the document or of a Minister, a Department or an officer of the Government, of that State.

Article 17

Search and seizure

1. The Requested State shall, insofar as its law permits, carry out requests for search and seizure and delivery of material to the Requesting State provided the information supplied, including additional information requested pursuant to paragraph 4 of Article 5, if any, would justify such action under the law of the Requested State.

2. The Requested State shall provide such information as may be required by the Requesting State concerning the result of any search, the place of seizure, the circumstances of seizure, and the subsequent custody of the material seized.

3. The Requesting State shall observe any conditions imposed by the Requested State in relation to any seized material which is delivered to the Requesting State, including any terms and conditions to protect third party interests in the material.

Article 18

Proceeds of crime

1. The Requested State shall, upon request, endeavour to ascertain whether any proceeds of a crime are located within its jurisdiction and shall notify the Requesting State of the results of its inquiries. In making the request, the Requesting State shall notify the Requested State of the basis of its belief that such proceeds may be located in its jurisdiction.

2. Where, pursuant to paragraph 1, suspected proceeds of crime are found, the Requested State shall take such measures as are permitted by its law to restrain and forfeit such proceeds.

3. In the application of this Article, the rights of bona fide third parties shall be respected under the law of the Requested State.

4. The Requested State, when in control of forfeited proceeds, shall deal with those proceeds in accordance with its law.

Article 19

Subsidiary arrangements

The Central Authorities of the Contracting Parties may enter into subsidiary arrangements to implement this Treaty in accordance with the laws of both Contracting Parties.

Article 20

Representation and expenses

1. Unless otherwise provided in this Treaty the Requested State shall make all necessary arrangements for the representation of the Requesting State in any proceedings arising out of a request for assistance and shall otherwise represent the interests of the Requesting State.

2. The Requested State shall meet the cost of fulfilling the request for assistance except that the Requesting State shall bear:

(a) the expenses associated with conveying any person to or from the territory of the Requested State, and any fees, allowances or expenses payable to that person whilst in the Requesting State pursuant to a request under Articles 9, 12 or 13;

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

Article 21

Consultation

The Contracting Parties shall consult promptly, at the request of either, concerning the interpretation, the application or the carrying out of this Treaty either generally or in relation to a particular case.

Article 22

Entry into force and termination

1. This Treaty shall enter into force thirty days after the date on which the Contracting Parties have notified each other in writing that their respective requirements for the entry into force of this Treaty have been complied with.

2. This Treaty shall apply to requests whether or not the relevant acts or omissions occurred prior to this Treaty entering into force.

3. Either Contracting Party may terminate this Treaty by notice in writing at any time and it shall cease to be in force six months after the day on which notice is given.

IN WITNESS WHEREOF, the undersigned, being duly authorised thereto by their respective Governments, have signed this Treaty.

DONE at CANBERRA on this TWENTY-FIFTH day of August One thousand nine hundred and ninety-two in the English and Korean languages, both texts being equally authentic.

FOR AUSTRALIA: FOR THE REPUBLIC OF KOREA:

MICHAEL DUFFY KIM KI-CHOON

_____________________________________________

NOTE

1. Notified in the Commonwealth of Australia Gazette on 25 November 1993.