Bali Process Technical Expert Workshop on Mutual Legal Assistance and Law Enforcement Bangkok, Thailand, June 2011 Celia Maunder International Crime Cooperation Central Authority Mutual Legal Assistance: the Australian Experience

Australia’s MA framework MA in Australia is regulated by the Mutual Assistance in Criminal Matters Act 1987 (MACMA) Governs the making/facilitation of MA requests Australia can receive MA requests from any country Australia can make MA requests to any country Australia has bilateral treaties with over 25 countries Australia is a member of a number of multilateral conventions which contain MA obligations e.g. United Nations Convention on Transnational Organised Crime

Role of the Central Authority ICCCA is Australia’s central authority for mutual legal assistance - drafts most Australian mutual assistance requests - refers foreign requests to the AFP for execution - obtains any Ministerial authorisations required to execute the request - liaises with foreign countries regarding the execution of Australian and foreign requests

Australian MA requests AGD drafts the majority of outgoing requests in consultation with the law enforcement or prosecution agency handling the matter The Commonwealth Director of Public Prosecutions (CDPP) drafts requests for Commonwealth law enforcement agencies in relation to the following: –matters where charges have been laid –terrorism matters –people smuggling matters, and –matters for which they have specific funding

General process of executing an Australian request Australian law enforcement (e.g. AFP) investigation, where foreign material is needed for purposes of the criminal matter AGD drafts request in consultation with AFP case officer Request is signed by Minister or delegate Request is sent to foreign country for action Material received back from foreign country Material certified and sealed under Foreign Evidence Act (if eligible) Material forwarded to requesting agency

Case study – mutual assistance request to Egypt

Requirements for Incoming MA requests MA requests may be made to the Attorney-General or his delegate The MACMA sets out the required form of mutual assistance requests. Requests should: o be in writing o include a description of the nature of the criminal matter o include a summary of the relevant facts, and o include a summary of the applicable law (including the penalty for the offence(s) under investigation).

Assistance that Australia can provide Executing search warrants to obtain evidence (search and seizure) – s15 Production of documents (production orders) and telecommunication intercept material - s13 Taking evidence from witness under oath (incl. video link) - s13 Provision of material obtained by law enforcement authorities – s13A Arranging for witnesses (including voluntary prisoners) to travel to give evidence in criminal proceedings – s26 and s27 Registering and enforcing orders to restrain and forfeit property (proceeds of crime orders) – s34 Additional assistance that is not specified in the MACMA (e.g. obtaining witness statements)

Process of executing an incoming request AGD receives request and assigns it to a case officer The case officer assesses the request and if necessary clarifies any aspects with the requesting country The case officer refers the request to the AFP for action The AFP assigns a case officer who makes preliminary inquiries If ministerial authorisation is required, AGD forwards a submission to the Minister The Minister considers the statutory criteria for providing the assistance and relevant grounds of refusal under the Act and treaty If the Minister authorises the assistance, AGD provides the authorisations to the AFP, who obtains the necessary warrants and executes them AFP provides evidential material to AGD AGD checks the material and provides it to the foreign country

Mandatory grounds for refusal The offence is a political offence The offence is a military offence The request relates to the prosecution of a person on account of their race, gender, religion or nationality Executing the request may prejudice sovereignty, security or national interest Double jeopardy applies Death penalty grounds of refusal

Discretionary grounds for refusal Dual criminality is not established Australia does not have an equivalent extraterritorial offence Lapse of time Executing the request would prejudice an ongoing domestic investigation or proceedings Executing the request would prejudice the safety of any person Executing the request would impose an excessive burden on resources Death penalty grounds of refusal (in some circumstances)

Challenges Evidentiary requirements Dual criminality assessment Witness sensitivities Further use/disclosure of evidence Timeframes Priorities and capacity of the foreign country

Contact us Assistant Secretary International Crime Cooperation Central Authority International Crime Cooperation Division Attorney-General’s Department 3-5 National Circuit BARTON ACT 2600 AUSTRALIA Telephone: Facsimile:

Questions?