Compilation #0 | Effective 1996-10-09
FRBR Work URI: /akn/au/act/1996/40
Schedule 2—Amendment of the Financial Transaction Reports Act 1988 1060
Schedule 3—Amendment of the Proceeds of Crime Act 1987 1061
Mutual Assistance in Criminal Matters Legislation Amendment Act 1996
No. 40, 1996
An Act to amend the Mutual Assistance in Criminal Matters Act 1987, and for related purposes
[Assented to 9 October 1996]
The Parliament of Australia enacts:
1 Short title
This Act may be cited as the Mutual Assistance in Criminal Matters Legislation Amendment Act 1996.
2 Commencement
1 Section 5
Repeal the section, substitute:
5 Objects of the Act
The objects of this Act are:
(a) to regulate the provision by Australia of international assistance in criminal matters when a request is made by a foreign country for any of the following:
(i) the taking of evidence, or the production of any document or other article, for the purposes of a proceeding in the foreign country;
(ii) the issue of a search warrant and the seizure of anything relevant to a proceeding or investigation in the foreign country;
(iii) the forfeiture or confiscation of property in respect of a foreign serious offence;
(iv) the recovery of pecuniary penalties in respect of a foreign serious offence;
(v) the restraining of dealings in property that may be forfeited or confiscated, or that may be needed to satisfy pecuniary penalties imposed, because of the commission of a foreign serious offence; and
(b) to facilitate the provision by Australia of international assistance in criminal matters when a request is made by a foreign country for the making of arrangements for a person who is in Australia to travel to the foreign country to give evidence in a proceeding or to give assistance in relation to an investigation; and
(c) to facilitate the obtaining by Australia of international assistance in criminal matters.
2 Section 6
Repeal the section, substitute:
6 Act not to limit other provision etc. of assistance
This Act does not prevent the provision or obtaining of international assistance in criminal matters other than assistance of a kind that may be provided or obtained under this Act.
3 Section 7
Repeal the section, substitute:
7 Application of Act
10 Subsection 3(1)
Insert:
video link means a video and sound system that enables persons assembled in a place in a country to see, hear and talk to persons assembled in a place in another country.
11 Section 10
Repeal the section, substitute:
10 Request by Australia
38 At the end of paragraphs 8(1)(a), (b), (c), (d) and (e)
Add “or”.
39 Paragraph 8(1)(f)
Omit “or” (last occurring).
40 Paragraph 8(1)(g)
Repeal the paragraph.
41 After subsection 8(1)
Insert:
44 After section 43A
Insert:
43B Restriction on use of information etc.
45 Subsection 3(1) (paragraph (a) of the definition of premises)
Omit aircraft, vehicle or vessel", substitute “or vehicle”.
46 Subsection 3(1)
Insert:
evidential material means a thing relevant to a proceeding or investigation, including such a thing in electronic form.
47 Subsection 3(1)
Insert:
executing officer, in relation to a warrant, means:
(a) the police officer named in the warrant, by the Magistrate who issued the warrant, as being responsible for executing the warrant; or
(b) if that police officer does not intend to be present at the execution of the warrant—another police officer whose name has been written in the warrant by the police officer so named; or
(c) another police officer whose name has been written in the warrant by the police officer last named in the warrant.
48 Subsection 3(1)
Insert:
fax means facsimile transmission.
49 Subsection 3(1)
Insert:
frisk search means:
(a) a search of a person conducted by quickly running the hands over the person’s outer clothes; and
(b) an examination of anything worn or carried by the person that is conveniently and voluntarily removed by the person.
50 Subsection 3(1)
Insert:
officer assisting, in relation to a warrant, means:
(a) a person who is a police officer and who is assisting in executing the warrant; or
(b) a person who is not a police officer and who has been authorised by the relevant executing officer to assist in executing the warrant.
51 Subsection 3(1)
Insert:
ordinary search means a search of a person or of articles in the possession of a person that may include:
(a) requiring the person to remove his or her overcoat, coat or jacket and any gloves, shoes and headgear; and
(b) an examination of those items.
52 Subsection 3(1)
Insert:
recently used vehicle, in relation to a search of a person, means a vehicle that the person has operated or occupied at any time within 24 hours before the search commenced.
53 Subsection 3(1)
Insert:
relevant investigation, in relation to a search warrant issued under Division 2 of Part VIIA, means the investigation to which the evidential material authorised to be searched and seized under the warrant relates.
54 Subsection 3(1)
Insert:
relevant proceeding, in relation to a search warrant issued under Division 2 of Part VIIA, means the proceeding to which the evidential material authorised to be searched and seized under the warrant relates.
55 Subsection 3(1)
Insert:
search warrant means a warrant issued under section 38C.
56 Subsection 3(1)
Insert:
seizable item means anything that would present a danger to a person or that could be used to assist a person to escape from lawful custody.
57 Subsection 3(1)
Insert:
strip search means a search of a person or of articles in the possession of a person that may include:
(a) requiring the person to remove all of his or her clothes; and
(b) an examination of the person’s body (but not of the person’s body cavities) and of those clothes.
58 Subsection 3(1)
Insert:
vehicle includes any means of transport.
59 Before Part VIII
Insert:
38A Object of Part
This Part makes provision:
(a) for the issue and execution in Australia, at the request of a foreign country, of a search warrant in respect of evidential material in Australia relating to an investigation or proceeding in the foreign country that relates to a criminal matter involving a serious offence; and
(b) for matters relating to the arrest of a person when the arrest has been authorised by this Act or by a warrant issued under the regulations.
38B Application for search warrant
38J Availability of assistance and use of force in executing a warrant
In executing a search warrant:
(a) the executing officer may obtain such assistance; and
(b) the executing officer, or a police officer who is assisting in executing the warrant, may use such force against persons and things; and
(c) a person who is not a police officer and who has been authorised to assist in executing the warrant may use such force against things;
as is necessary and reasonable in the circumstances.
38K Copy of warrant to be shown to occupier etc.
38S Power to enter premises to arrest person
38W Conduct of ordinary searches and frisk searches
60 Subsection 3(1) (definition of facsimile copy)
Omit “by facsimile transmission”, insert “or sent by fax".
61 Subsection 3(1)
Insert:
foreign organised fraud offence means an offence against the law of a foreign country that is committed by a person engaging in 2 or more acts or omissions:
(a) each of which constitutes an offence of defrauding, or conspiring to defraud, the government or a public authority of the foreign country; and
(b) from which the person derives substantial benefit (within the meaning of the Proceeds of Crime Act).
62 Subsection 3(1) (definition of Governor)
Repeal the definition, substitute:
Governor means:
(a) in relation to the Australian Capital Territory—the Chief Minister of the Territory; or
(b) in relation to the Northern Territory—the Administrator of the Territory.
63 Subsection 3(1) (definition of Magistrate)
Repeal the definition, substitute:
Magistrate means:
(a) a Magistrate of a State in respect of whom an arrangement under section 39 is in force; or
(b) a Magistrate of Norfolk Island in respect of whom an arrangement under section 39 is in force; or
(c) a Magistrate of an external Territory (other than Norfolk Island).
64 Subsection 3(1) (definition of money laundering offence)
Repeal the definition, substitute:
money laundering offence, in relation to the proceeds of a serious offence, means an offence that is committed by a person:
(a) engaging, directly or indirectly, in a transaction that involves money, or other property, that is proceeds of the offence; or
(b) receiving, possessing, concealing, disposing of or bringing into a country money, or other property, that is proceeds of the offence;
when the person knows that, or is reckless of whether or not, the money or other property is proceeds of a serious offence.
65 Subsection 3(1)
Insert:
proceeding, in relation to a criminal matter, includes a proceeding before a judicial officer or a jury for the purpose of:
(a) gathering evidential material that may lead to the laying of a criminal charge; or
(b) assessing evidential material in support of the laying of a criminal charge.
66 Subsection 3(1)
Insert:
public authority of a foreign country means any authority or body constituted by or under a law of a foreign country.
67 Subsection 3(1) (definition of State)
Repeal the definition, substitute:
State includes:
(a) the Australian Capital Territory; and
(b) the Northern Territory.
68 Subsection 3(1) (definition of State Minister)
Repeal the definition, substitute:
State Minister means:
(a) in relation to a State other than the Australian Capital Territory or the Northern Territory—a Minister of the Crown of that State; or
(b) in relation to the Australian Capital Territory or the Northern Territory—a Minister of that Territory.
69 Subsection 3(1) (definition of Territory)
Repeal the definition, substitute:
Territory does not include:
(a) the Australian Capital Territory; or
(b) the Northern Territory.
70 Subsection 3(1) (definition of treaty)
Omit agreement or arrangement”, substitute “or agreement”.
71 Paragraph 21 (1)(a)
Repeal the paragraph, substitute:
(a) a person is in Australia to give evidence in a proceeding:
(i) because of a request under subsection 16(1); or
(ii) because of a request (other than a request under that subsection) made by the Attorney-General for international assistance in a criminal matter; and
72 After subsection 21(1)
Insert:
101 Regulations under subsection 7(2)
Any regulations:
(a) made under subsection 7(2) of the Mutual Assistance in Criminal Matters Act 1987 as in force immediately before the commencement of item 3 in this Schedule; and
(b) making provision to the effect that that Act applies to a country, or to a number of countries, subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect, in whole or in part, to a particular mutual assistance treaty;
continue in force on and after the commencement of that item, and may be amended or repealed, as if they were regulations made under subsection 7(2) of that Act as amended by that item.
Schedule 2—Amendment of the Financial Transaction Reports Act 1988
1 Paragraph 27(1)(d)
Omit “to which the Mutual Assistance in Criminal Matters Act 1987 applies because of regulations made under subsection 7(2A) of that Act", substitute “for international assistance in a criminal matter”.
Schedule 3—Amendment of the Proceeds of Crime Act 1987
1 Subsection 59(1)
After “under this Act”, insert “against any property of a person”.
2 At the end of paragraphs 59(1)(a) and (b)
Add “and”.
3 Paragraph 59(1)(c)
Repeal the paragraph, substitute:
(c) a reference in this Division to a person charged or about to be charged with an indictable offence were a reference to a person against whom a criminal proceeding in respect of a foreign serious offence has commenced, or is reasonably believed to be about to commence, in a foreign country; and
4 At the end of paragraph 59(1)(d)
Add “and”.
5 After paragraph 59(1)(d)
Insert:
(da) a reference in subsection 44(4) to the proposed charging of a person with an offence were a reference to the proposed commencement of a criminal proceeding in a foreign country against a person in respect of a foreign serious offence; and
6 Paragraph 59(1)(f)
Omit “(4),”
[Minister's second reading speech made in—
House of Representatives on 26 June 1996 Senate on 10 September 1996]