Mutual Assistance in Criminal Matters Regulations 1988

Statutory Rules No. 126, 1988

made under the

Mutual Assistance in Criminal Matters Act 1987

Compilation No. 9

Compilation date: 1 September 2021

Includes amendments up to: F2021L01204

Registered: 12 October 2021

About this compilation

This compilation

This is a compilation of the Mutual Assistance in Criminal Matters Regulations 1988 that shows the text of the law as amended and in force on 1 September 2021 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law.

Self‑repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

Contents

1 Name of Regulations

2 Interpretation

2A Application of Criminal Code

3 Power of Magistrate or eligible Judge to send for witnesses and documents

4 Duty of person to continue in attendance

5 Arrest of person failing to attend

6 Fees for person attending

7 Power to examine on oath or affirmation

8 Offences by persons

9 Offences in relation to Magistrates or eligible Judges

10 Protection in relation to functions under the Act

11 Forfeiture of recognizance

12 Application of amendments made by the Crimes Legislation Amendment (International Crime Cooperation and Other Measures) Regulations 2018

Schedule 

Form 1—Summons

Form 2—Warrant of Apprehension

Endnotes

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

1  Name of Regulations

  These Regulations are the Mutual Assistance in Criminal Matters Regulations 1988.

2  Interpretation

 (1) In these Regulations, unless the contrary intention appears, the Act means the Mutual Assistance in Criminal Matters Act 1987.

 (2) In these regulations, a reference to a form by number is a reference to the form in the Schedule which bears that number.

2A  Application of Criminal Code

  Chapter 2 of the Criminal Code applies to offences against these Regulations.

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

3  Power of Magistrate or eligible Judge to send for witnesses and documents

 (1) A Magistrate or an eligible Judge acting under the Act may issue a summons in accordance with Form 1:

 (a) requiring a named person to attend as a witness before a Magistrate or an eligible Judge to do any of the following:

 (i) to give evidence as required under the summons;

 (ii) to answer questions as required under the summons;

 (iii) to produce documents and other articles in the person’s custody or control as required under the summons; or

 (b) requiring a named person who is only to produce documents, other articles, or both:

 (i) to attend before a Magistrate or an eligible Judge; and

 (ii) produce the documents (if any) in the person’s custody or control; and

 (iii) produce the other articles (if any) in the person’s custody or control.

 (2) Service on a person of a summons under this regulation may be effected in any State or Territory and shall be effected by delivering a copy of the summons to the person personally or to a duly authorised person (authorised by the person to be served) and, at the same time, showing the summons to the person.

 (3) If service on a person cannot be effected under subregulation (2) for any reason, a Magistrate or an eligible Judge may, on application, order that, instead of service, the steps specified in the order are to be taken to bring the document to the notice of a person named in the summons.

 (4) If a Magistrate or an eligible Judge makes an order under subregulation (3), the Magistrate or Judge may order that the document be taken to have been served on the happening of a specified event, or on the expiry of any specified time.

4  Duty of person to continue in attendance

  A person summoned under regulation 3 to attend before a Magistrate or an eligible Judge must attend at the place and time, and on the date, specified in the summons and then from day to day unless excused or released from attending by a Magistrate or Judge.

5  Arrest of person failing to attend

 (1) If a person summoned under regulation 3 to attend before a Magistrate or an eligible Judge fails to attend as required by regulation 4, a Magistrate or an eligible Judge may, on being satisfied that the summons has been duly served and that a reasonable sum for the expenses of attendance has been paid or tendered to that person, issue a warrant for the apprehension of that person in accordance with Form 2.

 (2) A person named in a warrant issued under subregulation (1) may, under the warrant, be apprehended, brought before a Magistrate or an eligible Judge and detained in custody until released by order of a Magistrate or an eligible Judge.

 (3) A warrant issued under subregulation (1) may be executed in any State or Territory.

 (4) The apprehension of a person under this regulation does not relieve the person from any liability incurred by the person because of his or her failure to attend before a Magistrate or an eligible Judge.

6  Fees for person attending

 (1) A person who attends before a Magistrate or an eligible Judge in a State or Territory in accordance with a summons under regulation 3 is entitled to be paid witness fees and travelling allowances as if attending before a court of summary jurisdiction in that State or Territory or, in special circumstances, such fees and allowances as the Magistrate or Judge directs.

 (2) Fees and allowances are payable to a person in accordance with subregulation (1) subject to the deduction of any amount previously paid to the person for expenses of attendance.

 (3) Fees and allowances are payable by the person at whose request the person named in the summons was summoned.

7  Power to examine on oath or affirmation

 (1) A Magistrate or an eligible Judge performing functions under the Act may administer an oath or affirmation to any person appearing as a witness before the Magistrate or Judge and may examine the witness on oath or affirmation.

 (2) A person may, for the purposes of any proceeding in relation to the Act, make an affirmation instead of taking an oath.

 (3) Subject to any rules of court applicable to a proceeding in relation to the Act, the forms of oaths and affirmations shall be the same, as nearly as practicable, as those used in the Supreme Court of the State or Territory in which the oath or affirmation is administered.

 (4) An affirmation made by a person pursuant to this regulation has the same effect for all purposes as if the person had taken an oath.

8  Offences by persons

 (1) A person who is summoned to attend before a Magistrate or an eligible Judge must not:

 (a) without reasonable excuse, fail to attend as required by the summons, after payment or tender of a reasonable sum for expenses of attendance;

 (b) refuse to be sworn or to make an affirmation as a witness or, without reasonable excuse, to answer any question when required to do so by the Magistrate or Judge; or

 (c) without reasonable excuse, refuse or fail to produce any document or other article that the person was required to produce by the summons.

Penalty: 5 penalty units.

 (2) An offence against paragraph (1)(a) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

9  Offences in relation to Magistrates or eligible Judges

  A person shall not, when a Magistrate or an eligible Judge is performing functions under the Act:

 (a) intentionally insult or disturb the Magistrate or Judge;

 (b) interrupt the proceedings before the Magistrate or Judge;

 (c) use insulting language to the Magistrate or Judge; or

 (d) by writing or speech use words calculated:

 (i) to influence improperly the Magistrate or Judge, a witness or any other person appearing before the Magistrate or Judge; or

 (ii) to bring the Magistrate or Judge into disrepute.

Penalty: 10 penalty units.

10  Protection in relation to functions under the Act

 (1) A Magistrate who performs functions under the Act in a State or Territory has the same protection and immunity as a judge of the Supreme Court of that State or Territory has in the performance of his or her duty as a judge of the Supreme Court.

 (2) A barrister or solicitor appearing before a Magistrate or an eligible Judge in a State or Territory in connection with the performance by the Magistrate or Judge of functions under the Act has the same protection and immunity as a barrister or solicitor, as the case may be, has in appearing for a party in proceedings in the Supreme Court of that State or Territory.

 (3) Where a person who is not represented by a barrister or solicitor appears before a Magistrate or an eligible Judge in a State or Territory in connection with the performance by the Magistrate or Judge of functions under the Act, the person has the same protection and immunity as a party to proceedings in the Supreme Court of the State or Territory has in appearing before that Court when not so represented.

 (4) A person summoned as a witness to attend or appearing before a Magistrate or an eligible Judge who performs functions under the Act in a State or Territory has the same protection as a witness in proceedings in the Supreme Court of that State or Territory.

11  Forfeiture of recognizance

 (1) If any of the following is satisfied that a person admitted to bail in a State or Territory in relation to a proceeding under the Act has failed to comply with the conditions of the recognisance upon which the person was admitted to bail:

 (a) a Magistrate in the State or Territory;

 (b) an eligible Judge;

 (c) a Judge of the Supreme Court in the State or Territory;

the Magistrate, the eligible Judge or the Judge of the Supreme Court may, by order, declare the recognisance to be forfeited.

 (2) If the recognisance has been declared to be forfeited, a court having jurisdiction in the State or Territory in which the recognisance was declared to be forfeited may enforce payment of any amount due under the recognisance by a person residing in that State or Territory.

 (3) An amount recovered pursuant to this section shall be transmitted to the Attorney‑General of the Commonwealth.

12  Application of amendments made by the Crimes Legislation Amendment (International Crime Cooperation and Other Measures) Regulations 2018

  The amendments of subregulation 3(3) and regulation 5 made by the Crimes Legislation Amendment (International Crime Cooperation and Other Measures) Regulations 2018 apply in relation to a summons issued before, on or after the commencement of this regulation.

Schedule  

Form 1—Summons

Note: See regulation 3.

Commonwealth of Australia

SUMMONS

Mutual Assistance in Criminal Matters Act 1987

In the Matter of proceedings relating to

under the Mutual Assistance in Criminal Matters Act 1987

To: (name and address)

YOU ARE HEREBY summoned pursuant to regulation 3 of the Mutual Assistance in Criminal Matters Regulations 1988 to appear at (place, date and time) and to attend from day to day unless you are excused or released from so attending to *give evidence/ *answer questions/ *and/ *to produce the following/ *documents/ *and/ *other/ *articles:

Dated

(Signature)

(Description)

* Omit if inapplicable.

Note: If a person who has been served with a summons under the Mutual Assistance in Criminal Matters Regulations 1988 and has been paid or tendered a reasonable sum for the person’s expenses then fails to attend as required by the summons, the person:

(a) is guilty of an offence and is liable, on conviction, to a fine not exceeding 5 penalty units; and

(b) is liable without further notice to be apprehended and brought before a Magistrate or an eligible Judge.

Form 2—Warrant of Apprehension

Note: See regulation 5.

Commonwealth of Australia

Mutual Assistance in Criminal Matters Act 1987

WARRANT OF APPREHENSION

To all police officers within the meaning of the Mutual Assistance in Criminal Matters Act 1987.

WHEREAS:

 (a) (name and address of person) was summoned to attend before *a Magistrate, being a person performing functions under an arrangement in force under section 39 of the Act, / *an eligible Judge/ on (date), and then from day to day unless excused or released from so attending;

 (b) (name of person) has failed to attend on (date) as required by the summons; and

 (c) I am satisfied that the summons was duly served on (name of person) and that a reasonable sum for the expenses of attendance was *paid/ *tendered/ to (name of person);

NOW THEREFORE I, pursuant to regulation 5 of the Mutual Assistance in Criminal Matters Regulations 1988, authorise and request you to find (name of person) in any State or Territory of the Commonwealth and to bring (name of person) before a Magistrate, being a person performing functions under an arrangement in force under section 39 of the Act, or an eligible Judge to *give evidence/ *answer questions/ *and/ *produce/ *documents/ *and/ *other/ *articles/ as required by the summons, and to detain (name of person) in custody for that purpose.

(Date)

(Signature)

(Description)

*  Omit if inapplicable.

Endnotes

Endnote 1—About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Abbreviation key—Endnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history—Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.

Editorial changes

The Legislation Act 2003 authorises First Parliamentary Counsel to make editorial and presentational changes to a compiled law in preparing a compilation of the law for registration. The changes must not change the effect of the law. Editorial changes take effect from the compilation registration date.

If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe the amendment to be made. If, despite the misdescription, the amendment can be given effect as intended, the amendment is incorporated into the compiled law and the abbreviation “(md)” added to the details of the amendment included in the amendment history.

If a misdescribed amendment cannot be given effect as intended, the abbreviation “(md not incorp)” is added to the details of the amendment included in the amendment history.

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history