Interpretation

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

“ancillary offence” has the same meaning as in section 7 of the Proceeds of Crime Act;

“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 the Proceeds of Crime Act;

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

(i) orders the forfeiture of property 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 pecuniary penalty order” means:

(a) a pecuniary penalty order within the meaning of the Proceeds of Crime Act;

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

(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 the Proceeds of Crime Act (other than a restraining order made by virtue of section 59 of that Act);

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

(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;

“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;

“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;

(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;

“facsimile copy” means a copy obtained by 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 forfeiture order” means 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;

“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, made under the law of a foreign country, restraining a particular person, or all persons, from dealing with property, being an order made in respect of an offence against the law of that country;

“foreign offence” means an offence against a law of a foreign country;

“foreign serious offence” means a serious offence against a law of a foreign country;

“Governor”, in relation to the Northern Territory, means the Administrator of the Northern Territory;

“Magistrate” means:

(a) a Magistrate of a Territory; or

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

“money laundering offence”, in relation to the proceeds of a serious narcotics offence, means an offence involving:

(a) the engaging, directly or indirectly, in a transaction that involves money, or other property, that is, within the meaning of the Proceeds of Crime Act, proceeds of the serious narcotics offence; or

(b) the receiving, possessing, concealing, disposing of or bringing into a country of money, or other property, that is, within the meaning of the Proceeds of Crime Act, proceeds of the serious narcotics offence;

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

“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;

“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;

“premises” includes:

(a) a structure, building, aircraft, vehicle or vessel;

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

“prison” includes a gaol, lock-up or other place of detention;

“proceeds” has the same meaning as in the Proceeds of Crime Act;

“Proceeds of Crime Act” means 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;

“serious narcotics offence” has the same meaning as in section 7 of the Proceeds of Crime Act;

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

“State” includes the Northern Territory;

“State Minister”, in relation to a State or the Northern Territory, means a Minister of the Crown of the State or a Minister of the Northern Territory, as the case may be;

“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;

“tainted property” has the same meaning as in the Proceeds of Crime Act;

“Territory” does not include the Northern Territory;

“treaty” includes a convention, protocol, agreement or arrangement;

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

(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

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.

Act to extend to external Territories

4. This Act extends to every external Territory.

Object of Act

5. The object of this Act is to facilitate the provision and obtaining by Australia of international assistance in criminal matters, including:

(a) the obtaining of evidence, documents or other articles;

(b) the provision of documents and other records;

(d) the execution of requests for search and seizure;

(e) the making of arrangements for persons to give evidence or assist investigations;

(f) the forfeiture or confiscation of property in respect of offences;

(g) the recovery of pecuniary penalties in respect of offences;

(h) the restraining of dealings in property, or the freezing of assets, that may be forfeited or confiscated, or that may be needed to satisfy pecuniary penalties imposed, in respect of offences;

(j) the location of property that may be forfeited, or that may be needed to satisfy pecuniary penalties imposed, in respect of offences; and

(k) the service of documents.

Act not to limit other provision of assistance

6. Nothing in this Act prevents the provision or obtaining of international assistance in criminal matters otherwise than as mentioned in this Act or otherwise than pursuant to a treaty or other arrangement between Australia and a foreign country.

Application of Act

7. (1) The regulations may provide that this Act applies to a foreign country specified in the regulations.

(2) The regulations may:

(a) state that this Act applies in relation to a specified foreign country subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to a bilateral mutual assistance treaty between Australia and that country, being a treaty a copy of which is set out in the regulations; or

(b) make provision instead to the effect that this Act applies in relation to a specified foreign country subject to other limitations, conditions, exceptions or qualifications.

(3) Where the regulations state, or make provision to the effect, that this Act applies as mentioned in subsection (2), this Act applies accordingly.

Refusal of assistance

8. (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, an offence of a political character;

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

(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;

(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;

(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;

(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; or

(g) except in the case of a request under section 13—the foreign country is not a country to which this Act applies.

(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;

(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;

(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;

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

(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.

Assistance may be provided subject to conditions

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

Requests by Australia

10. Requests by Australia for international assistance in criminal matters may be made by the Attorney-General.

Request by foreign country

11. (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) Such a request shall be accompanied by:

(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;

(d) details of the procedure that the foreign country wishes to be followed by Australia in giving effect to the request, including details of the manner and form in which any information, document or thing is to be supplied to the foreign country pursuant to the request;

(e) a statement setting out the wishes of the foreign country concerning the confidentiality of the request and the reasons for those wishes;

(f) details of the period within which the foreign country wishes the request be complied with;

(g) if the request involves a person travelling from Australia to the foreign country—details of allowances to which the person will be entitled, and of the arrangements for accommodation for the person, while the person is in the foreign country pursuant to the request;

(h) any other information required to be included with the request under a treaty or other arrangement between Australia and the foreign country; and

(j) any other information that may assist in giving effect to the request; but 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.

PART II—ASSISTANCE IN RELATION TO TAKING OF EVIDENCE AND PRODUCTION OF DOCUMENTS OR OTHER ARTICLES

Requests by Australia

12. The Attorney-General may, in his or her discretion, request an appropriate authority of a foreign country to arrange for:

(a) evidence to be taken in the foreign country; or

(b) documents or other articles in the foreign country to be produced;

for the purposes of a proceeding in relation to a criminal matter in Australia.

Requests by foreign countries

13. (1) Where a request is made by a foreign 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 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 foreign 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 foreign 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 foreign country relates;

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

to have legal representation at the proceeding before the Magistrate.

(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 foreign 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 subsection (7), 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 foreign country relates is competent but not compellable to give evidence.

PART III—ASSISTANCE IN RELATION TO SEARCH AND SEIZURE

Requests by Australia for search and seizure

14. (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 to which this Act applies.

(2) Where this section applies to a proceeding or investigation, the Attorney-General may, in his or her discretion, request an appropriate authority of the foreign country to obtain a warrant or other instrument authorising a search for a thing relevant to the proceeding or investigation and, if such a thing, or any other thing that is or may be relevant to the

proceeding or investigation, as the case may be, is found pursuant to such a search, authorising the seizure of that thing.

(3) A request shall be accompanied by an affidavit by a person verifying the grounds on which the request is made.

Requests by foreign countries for search and seizure

15. (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 a thing relevant to the investigation or proceeding is located in Australia; and

(c) the foreign country requests the Attorney-General to arrange for the issue of a search warrant under this section in relation to that thing;

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 that thing is believed to be located for the search warrant requested by the foreign country.

(2) Where a police officer authorised under subsection (1) has reason to believe that the thing to which the request relates is, or will, at a specified time, be:

(a) on a person;

(b) in the clothing that is being worn by a person; or

the police officer may:

(d) lay before a Magistrate an information on oath setting out the grounds for that belief; and

(e) apply for the issue of a warrant under this section to search the person for that thing.

(3) Where an application is made under subsection (2), the Magistrate may, subject to subsection (6), issue a warrant authorising a police officer (whether or not named in the warrant), with such assistance, and by such force, as is necessary and reasonable:

(a) to search the person for the thing; and

(b) to seize any thing found in the course of the search that the police officer believes, on reasonable grounds, to be relevant to the proceeding or investigation.

(4) Where a police officer authorised under subsection (1) has reason to believe that the thing to which the request relates is, or will, at a specified time, be, upon any land, or upon or in any premises, the police officer may:

(a) lay before a Magistrate an information on oath setting out the grounds for that belief; and

(b) apply for the issue of a warrant under this section to search the land or premises for that thing.

(5) Where an application is made under subsection (4), the Magistrate may, subject to subsection (6), issue a warrant authorising a police officer (whether or not named in the warrant), with such assistance, and by such force, as is necessary and reasonable:

(a) to enter upon the land, or upon or into the premises;

(b) to search the land or premises for the thing; and

(c) to seize any thing found in the course of the search that the police officer believes, on reasonable grounds, to be relevant to the proceeding or investigation.

(6) A Magistrate shall not issue a warrant under this section unless:

(a) the informant or some other person has given to the Magistrate either orally or by affidavit, such further information (if any) as the Magistrate requires concerning the grounds on which the issue of the warrant is sought; and

(b) the Magistrate is satisfied that there are reasonable grounds for issuing the warrant.

(7) There shall be stated in a warrant issued under this section:

(a) the purpose for which the warrant is issued, including a reference to the nature of the criminal matter in relation to which the search is authorised;

(b) whether the search is authorised at any time of the day or night or during specified hours of the day or night;

(d) a day, not being later than one month after the issue of the warrant, on which the warrant ceases to have effect.

(8) If, in the course of searching, under a warrant issued under this section, for a thing of a kind specified in the warrant, the police officer finds another thing that the police officer believes on reasonable grounds:

(a) to be relevant to the proceeding or investigation in the foreign country or to afford evidence as to the commission of an Australian criminal offence; and

(b) is likely to be concealed, lost or destroyed if it is not seized;

the warrant shall be deemed to authorise the police officer to seize the other thing.

(9) Where a police officer finds, as a result of a search in accordance with a warrant issued under this section, a thing which the police officer seizes wholly or partly because he or she believes the thing on reasonable grounds to be relevant to the proceeding or investigation in the foreign country, the police officer shall deliver the thing into the custody and control of the Commissioner of the Australian Federal Police.

(10) Where a thing is delivered into the custody and control of the Commissioner of the Australian Federal Police under subsection (9), the Commissioner shall arrange for the thing to be kept for a period not exceeding one month from the day on which the thing was seized pending a direction in writing from the Attorney-General as to the manner in which the thing is to be dealt with (which may include a direction that the thing be sent to an authority of a foreign country).

(11) A police officer who executes a search warrant issued under subsection (3) or (5) shall, as soon as practicable after the execution of the warrant, give to the person, or give to the owner or occupier of the land or premises or leave in a prominent position on the land or at the premises, as the case requires, a notice setting out:

(a) the name and rank of the police officer;

(b) the name of the Magistrate who issued the warrant and the day on which it was issued; and

(12) A police officer acting in accordance with a warrant issued under subsection (3) may remove, or require a person to remove, any of the clothing that the person is wearing but only if the removal of the clothing is necessary and reasonable for an effective search of the person under the warrant.

(13) A person shall not be searched under a warrant issued under subsection (3) except by a person of the same sex.

(14) Nothing in this section shall be taken to authorise a police officer, in executing a warrant under subsection (3), to carry out a search by way of an examination of a body cavity of a person.

(15) Where a police officer is authorised, under a warrant issued under subsection (3), to search a person, the police officer may also search:

(a) the clothing that is being worn by the person; and

(b) any property in, or apparently in, the person’s immediate control.

PART IV—ARRANGEMENTS FOR PERSONS TO GIVE EVIDENCE OR ASSIST INVESTIGATIONS

Division 1—Requests by Australia

Requests for removal of certain persons to Australia

16. (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 to which this Act applies:

(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;

the Attorney-General may, in his or her discretion, 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 to which this Act applies:

(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;

the Attorney-General may, in his or her discretion, 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) Where the Attorney-General makes a request 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;

(d) other relevant matters.

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

17. (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.

Custody of certain persons

18. 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.

Immunities

19. (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; or

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

(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.

(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.

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

20. (1) Where a person has come to Australia pursuant to a request by a foreign country 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.

Limitation on use of evidence given by certain persons

21. (1) Where:

(a) a person is in Australia:

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

(ii) 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; 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.

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

Conditions of imprisonment

22. 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

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.

Release of certain persons upon request by foreign country

23. 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.

Escaping

24. (1) Any person who escapes from lawful custody while in Australia pursuant to a request under section 16 shall be guilty of an offence.

Penalty: Imprisonment for 2 years.

(2) Sections 46 and 47 of the Crimes Act 1914 apply as if a reference in those sections to custody in respect of any offence against a law of the Commonwealth were a reference to custody while in Australia pursuant to a request under section 16.

Arrest of person who has escaped from custody

25. (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) A person who has been arrested pursuant to subsection (1) shall be returned to custody in accordance with this Act.

Division 2—Requests by foreign countries

Requests for giving of evidence at hearings in foreign countries

26.(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 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 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; 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 thin 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;

(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.

Requests for assistance in relation to investigations in foreign countries

27. (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 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:

(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

(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

(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 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:

(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; 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;

(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.

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

28. 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 V—CUSTODY OF PERSONS IN TRANSIT

Transit

29. (1) Where:

(a) a person is to be transported in custody from a foreign country through Australia to another foreign country for the purpose of

giving evidence in a proceeding, or giving assistance in relation to an investigation, relating to a criminal matter in the other foreign country; and

(b) at least one of those foreign countries is a foreign country to which this Act applies;

the person:

(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.

Escaping

30. (1) Any person who, being a person being kept in custody pursuant to a direction under paragraph 29 (1) (d), escapes from such custody, shall be guilty of an offence.

Penalty: Imprisonment for 2 years.

(2) Sections 46 and 47 of the Crimes Act 1914 apply as if a reference in those sections to custody in respect of any offence against a law of the Commonwealth were a reference to custody pursuant to a direction under paragraph 29 (1) (d).

Arrest of person in transit

31. (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) A person who has been arrested pursuant to subsection (1) shall be returned to custody in accordance with this Act.

PART VI—PROCEEDS OF CRIME

Division 1—Requests by Australia

Requests for enforcement of orders

32. The Attorney-General may, in his or her discretion, request an appropriate authority of a foreign country to which this Act applies 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 where some or all of the property available to satisfy the order is believed to be located in that country; or

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

Requests for issue of orders in foreign countries

33. Where a criminal proceeding or criminal investigation has commenced in Australia in relation to a serious offence, the Attorney-General may, in his or her discretion, request an appropriate authority of a foreign country to which this Act applies 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:

(a) a search warrant for tainted property;

(b) a restraining order;

(d) a search warrant in respect of a property-tracking document;

(e) a monitoring order.

Division 2—Requests by foreign countries

Requests for enforcement of orders

34. (1) Where:

(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 serious offence, against property that is believed to be located in Australia; or

(ii) a foreign pecuniary penalty order, made in respect of a serious offence, where some or all of the property available to satisfy the order is believed to be 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, in his or her discretion, authorise the DPP, in writing, to apply for the registration of the order in a specified court.

(2) Where a foreign country requests the Attorney-General to make arrangements for the enforcement of a foreign restraining order, made in respect of a serious offence, against property that is believed to be located in Australia, the Attorney-General may, in his or her discretion, authorise

the DPP, in writing, to apply for the registration of the order in a specified court.

(3) The court specified shall be the Supreme Court of a State or Territory in which the property, or some or all of the property, is believed to be located.

(4) Where the DPP applies to a court for registration of a foreign order in accordance with an authorisation under this section, the court shall register the order accordingly.

(5) A foreign forfeiture order registered in a court in accordance with this section 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.

(6) A foreign pecuniary penalty order registered in a court in accordance with this section has effect, and may be enforced, as if it were a pecuniary penalty order made by the court under the Proceeds of Crime Act at the time of registration and requiring the payment to the Commonwealth of the amount payable under the order.

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

(8) Where an order is registered in a court in accordance with this section, 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 the amendments do not, for the purposes of this Act and the Proceeds of Crime Act, have effect until they are registered.

(9) An order or an amendment of an order shall 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).

(10) A facsimile copy of a sealed or authenticated copy of an order or an amendment of an order shall be regarded for the purposes of this Act as the same as the sealed or authenticated copy but registration effected by means of the facsimile copy ceases to have effect at the end of 21 days unless the sealed or authenticated copy has been registered by then.

(11) The Attorney-General may, in his or her discretion, direct the DPP to apply to a court in which:

(a) a foreign forfeiture order;

(b) a foreign pecuniary penalty order; or

has been registered in accordance with this section for cancellation of the registration.

(12) Without limiting the generality of subsection (11), 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.

(13) Where the DPP applies to a court for cancellation of a registration in accordance with a direction under subsection (11), the court shall cancel the registration accordingly.

(14) Sections 100, 101 and 102 of the Proceeds of Crime Act do not apply to an order registered in accordance with this section.

Requests for search and seizure warrants in respect of tainted property

35. (1) Where:

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

(b) there are reasonable grounds to believe that tainted property in relation to the offence is located in Australia; and

(c) the foreign country requests the Attorney-General to obtain the issue of a search warrant under the Proceeds of Crime Act in relation to the tainted property;

the Attorney-General may, in his or her discretion, authorise a police officer to apply to a magistrate of a specified State or Territory (within the meaning of the Proceeds of Crime Act) for the search warrant requested by the foreign country.

(2) The State or Territory specified shall be a State or Territory in which the tainted property, or some or all of the tainted property, is believed to be located.

Requests for restraining orders

36. (1) Where:

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

(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 under the Proceeds of Crime Act against the property;

the Attorney-General may, in his or her discretion, authorise the DPP to apply to a specified court for the restraining order requested by the foreign country.

(2) The court specified shall be the Supreme Court of a State or Territory in which the property, or some or all of the property, is believed to be located.

Requests for information gathering orders

37. (1) Where:

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

(b) a property-tracking document in relation to the offence is reasonably believed to be located in Australia; and

(i) a production order under the Proceeds of Crime Act in respect of the document; or

(ii) a search warrant under the Proceeds of Crime Act in respect of the document;

the Attorney-General may, in his or her discretion, authorise a police officer to apply to a judge of a specified court for the order requested by the foreign country.

(2) The court specified shall be the Supreme Court of a State or Territory in which the document is, or some or all of the documents are, believed to be located.

(3) Where:

(a) a criminal proceeding or criminal investigation has commenced in a foreign country in respect of a serious offence that is:

(i) a serious narcotics offence;

(ii) a money laundering offence in respect of proceeds of a serious narcotics offence; or

(iii) an ancillary offence in relation to an offence of a kind referred to in subparagraph (i) or (ii);

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

(c) the foreign country requests the Attorney-General to obtain the issue of a monitoring order under the Proceeds of Crime Act directing the financial institution to give information to the Australian Federal Police about transactions conducted through the account;

the Attorney-General may, in his or her discretion, authorise a police officer to apply to a judge of a specified court for the order requested by the foreign country.

(4) The court specified shall be the Supreme Court of a State or Territory.

PART VII—SERVICE OF DOCUMENTS

Service of documents

38. (1) Where a foreign country requests the Attorney-General to arrange for the service in Australia of a process relating to a criminal matter in the foreign country, the Attorney-General may, in his or her discretion, arrange for the service of the process.

(2) Without limiting the manner in which the service of a document in a foreign country may be proved in Australia, service of such a document may be proved by affidavit of the person who served the document.

PART VIII—MISCELLANEOUS

Arrangements with States

39. (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.

(3) A copy of each instrument by which an arrangement under subsection (1) or (2) is made, varied or revoked shall be published in the Gazette.

Delegation

40. (1) The Attorney-General may, either generally or as otherwise provided by the instrument of delegation, delegate to an officer of the Attorney-General’s Department all or any of his or her powers under this Act, other than this power of delegation or his or her powers under section 8.

(2) A power so delegated, when exercised by the delegate, shall, for the purposes of this Act, be deemed to have been exercised by the Attorney-General.

(3) A delegation under this section does not prevent the exercise of a power by the Attorney-General.

Jurisdiction of courts

41. 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.

Evidence

42. 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.

Authentication of documents

43. (1) In a proceeding under this Act or a proceeding under or pursuant to the Proceeds of Crime Act 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 authenticated by the oath of a witness or an officer of the Government of the foreign country or 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.

Regulations

44. 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.

[Minister’s second reading speech made in—

House of Representatives on 30 April 1987

Senate on 29 May 1987]