Under Australia's federal division of powers, the Commonwealth is primarily responsible for matters relating to international asset recovery. It has a complex but comprehensive suite of legislation on civil and criminal asset forfeiture.
I. Mutual assistance legislation
The federal Mutual Assistance in Criminal Matters Act 1987 (Cth) (Act No. 85 of 1978, as amended) (MACMA Australia) regulates how Australia gives and requests international assistance in criminal matters. It empowers the Australian government to assist foreign countries to gather evidence, search premises, seize, restrain and confiscate property and enforce pecuniary penalties: section 5(a) MACMA Australia. It also faciliates the participation of certain witnesses in foreign criminal proceedings.
The MACMA Australia applies to all foreign requests for assistance in criminal matters. It is subject to anylimitations, conditions, exceptions or qualifications necessary to give effect to a treaty between Australia and the requesting state, which have been referred to in the MACMA's regulations: sections 3, 5, 7(1)-(3) and 44 MACMA Australia, see also Kennedy v Australian Securities & Investment Commissioner & Ors [2005] FCAFC 32 at paras 11 and 12. At present, the MACMA Australia Regulations refer to some 26 bi-lateral MLA treaties, as well as to a number of multi-national treaties relating wholly or partially to the provision of assistance in criminal matters: see also section 3 MACMA Australia.
In this Profile we assume that the MACMA Australia alone applies to the MLA request. However, it is important, in practice, to check whether and how the MACMA Australia interacts with applicable MLA treaties, indeed, how these treaties interact with each other. Failure to do so may lead the Australian authorities to refuse the request or may allow the assistance process to be challenged in the Australian or foreign courts. For example, in Kennedy v Australian Securities & Investment Commissioner & Ors, the defendant (unsuccessfully) challenged a request by Australia to Switzerland on the basis that the request did not fulfill the requirement of the Swiss MLA treaty: [2005] FCAFC 32 at paras 85 – 92.
The MACMA Australia does not prevent Australia from providing other types of assistance, such as agency-to-agency (informal) assistance: section 6 MACMA Australia.
During 2005 and 2006, the Federal Government conducted a review of Australia's mutual assistance law and practice. A discussion paper from the Attorney-General's Department was issued and comments received during October 2006, however, no final report was published and it seems that one is unlikely.
See the Law Council of Australia, 'Federal Inquiries – Part D Submissions Closed with No Final Report Date Given - Report Unlikely' available at http://www.lawcouncil.asn.au/fedinquiries.html.
Complementing the MACMA Australia, the Mutual Assistance in Business Matters Regulation Act 1992 (MABMRA AUstralia) facilitates assistance between Commonwealth business regulators and their foreign counterparts in non-penal proceedings. 'Commonwealth regulator' is defined broadly to include the Australian Competition and Consumer Commission (ACCC), the Australian Prudential Regulation Authority (APRA) and the Australian Securities and Investments Commission (ASIC): section 3(1) MABMRA Australia, section 4 MABMRA Australia Regulations. These bodies may use their substantial powers in regulating the Australian economy to arrange for information, documents or evidence to be gathered and transmitted overseas: section 6 MABMRA Australia. The information cannot be used to impose penalties on a person or in criminal proceedings: section 6(2) MABMRA Australia.
The Commonwealth and all states government have introduced laws to enable the confiscation of the proceeds and instruments of crime or substitute property. Of these, the Commonwealth's Proceeds of Crime Act 2002 (POCA Australia 2002) is most relevant to international asset recovery cases. First, it contains the mechanisms for the identification, restraint and forfeiture of the proceeds and instruments of foreign crime. Second, in some cases, it permits restraint and forfeiture of the proceeds of a foreign indictable offence where there is no investigation, criminal proceeding or conviction: see sections 19, 337A and 49 POCA Australia 2002. Third, if there is evidence of an offence against Australian law, POCA Australia 2002 may be used to restain and forfeit the proceeds of that crime or the property of that suspect.
The Proceeds of Crime Act 1987 (POCA Australia 1987) continues to apply to proceedings commenced before 1 January 2003.
IV. Criminal law
Though the federal Constitution assigns primary responsibility for criminal law to the states, Commonwealth laws are generally most relevant to international asset recovery cases involving corruption. The Criminal Code Act 1995 codifies the general principles of criminal responsibility under Commonwealth law and contains most of the major Commonwealth offences, including offences mentioned in the UNCAC. Other relevant offences are contained in the Financial Management and Accountability Act 1997, the Suppression of the Financing of Terrorism Act 2002, the Commonwealth Authorities and Companies Act 1997, Corporations Law and the Anti-Money Laundering and Counter-Terrorism Financing Act 2006. This will be relevant when considering the dual criminality requirement.
V. International laws on MLA
Pursuant to section 51xxix of the Constitution, the Commonwealth government has broad power to conclude treaties for Australia. The treaty is binding within Australia when it is incorporated into Australia’s internal law through legislation.
1. Bilateral MLA treaties
The Australian government has made bi-lateral MLA treaties with the Argentine Republic, Austria, Canada, Ecuador, Finland, French Republic, Greece, Hong Kong, Republic of Hungary, Republic of Indonesia, State of Israel, Republic of Italy, Republic of Korea, Grand Duchy of Luxembourg, Malaysia, United Mexico States, Monaco, Kingdom of the Netherlands, Republic of the Philippines, Republic of Portugal, Spain, Sweden, Switzerland, People's Republic of China, Thailand United Kingdom and United States of America.
These treaties have been incorporated into Australian law as Regulations to the MACMA Australia. According to the CDPP website, 'Australia also has a number of important bilateral relationships with non-treaty countries based on the principle of reciprocity'.
2. Multi-lateral treaties
Australia is also party to a number of multi-lateral conventions that deal, in whole or in part, with MLA. It has signed and ratified the UNCAC and incorporated its mandatory requirements, as well as some non-mandatory requirements, into Australian law (see the Mutual Assistance in Criminal Matters (Convention against Corruption) Regulations 2005 and Extradition (Convention against Corruption) Regulations 2005): Australian Attorney General’s Department Australia’s Approach to Fighting Corruption available at: http://www.ag.gov.au/foreignbribery.
Other important multi-lateral instruments to which Australia is a party include:
3. Other non-treaty international instruments
As a member of the Commonwealth, Australia participates in the Harare Scheme for Mutual Assistance in Criminal Matters 1986, which aims to 'increase the level and scope for assistance in criminal matters between Commonwealth governments', as discussed in the UK profile.
