The Mutual Assistance in Criminal Matters Act 1987 (Cth) (MACMA Australia) regulates the provision of assistance by Australia to other countries in criminal matters. Subject to MLA treaties with the requesting state, it says when Australia can provide (and refuse) assistance. As discussed elsewhere in this profile, it also says what kind of assistance it can provide.
I. When Australia can provide assistance
Under the MACMA Australia, Australia can only provide legal assistance in criminal matters if:
- foreign law enforcement authorities have formally requested help;
- the assistance relates to a criminal matter;
- there are no mandatory grounds for refusing assistance and any discretionary grounds have not been applied.
1. The request
The validity of a request depends on 1) its content and 2) its form.
a) Content of the request
The request should contain (or be submitted with):
- the name of the authority concerned with the criminal matter to which the request relates;
- a description of the nature of the criminal matter and a statement setting out a summary of the relevant facts and laws (including the penalty for the offence (s) under investigation;
- a description of the purpose of the request and of the nature of the assistance being sought;
- any information that may assist in giving effect to the request; and
- any information required for specific types of assistance: section 11(2)(a)-(d) MACMA Australia.
Kennedy v Australian Securities & Investment Commissioner & Ors [2005] FCAFC 32 discusses mistakes in requests. In that case, the request wrongly described the Australian law relied on to request help from Switzerland. The Full Federal Court held that the request was nonetheless acceptable: para. 100. Providing the requested state could still 'make an assessment of the nature of the suspected offence … technical misdescription of the legislative provision' was irrelevant: para. 100. Though that case was decided in the context of Australia's bilateral MLA treaty with Switzerland, the Court's obiter comments suggest it would also apply to other requests: para 101.
b) Form of the request
In terms of form, requests for MLA must be in writing, in English and addressed to the Assistant Secretary, Mutual Assistance and Extradition Branch, International Crime Cooperation Division, Attorney-General’s Department, which is the Australian Central Authority.
c) Getting it right
Though the Australian Attorney-General may not reject a request just because it does not meet these formal requirements (section 11(2) MACMA Australia), making a complete and correct request will improve your chances of receiving a positive response quickly. We recommend you consult the Australian Attorney-General's guide, 'Mutual assistance in criminal matters - Checklist for Requests from Other Countries to Australia' which contains more detail about the requirements of content and form.
2. Criminal Matter
A prerequisite for the request is that it relate to a 'criminal matter'. For the definition of 'criminal matter', and related concepts, please see section 3 MACMA Australia or 'Asset Recovery Mechanisms' in this profile.
3. Grounds for refusing a request
Even if the request is correct in terms of content and form, the Australian Attorney-General may still refuse the request in some circumstances. Section 8(1) MACMA Australia sets out the mandatory and discretionary grounds for rejecting an application for MLA.
a) Political and military offences
An MLA request to Australia must be refused if it relates to the prosecution or punishment of a political offence or an act or omission that that would be considered an offence under military law in Australia: section 8(1)(a), (b) and (d) MACMA Australia. Likewise, the request will be refused if there are substantial grounds for believing it was made with a view to prosecuting or punishing a person for a political offence: section 8(1)(b) MACMA Australia.
'Political offence' is defined in the Extradition Act 1988 (Extradition Act) as 'an offence against the law of the country that is of a political character (whether because of the circumstances in which it is committed or otherwise and whether or not there are competing political parties in the country)': section 5 Extradition Act, section 3 MACMA Australia. It does not include acts listed in an applicable multi-lateral treaty and declared by the MACMA Australia Regulations not to be a political offence. UNCAC has been incorporated into the MACMA Australia as a regulation. Therefore, offences under the UNCAC are not considered to be political offenses: Article 44(4) UNCAC, Schedule 1 Mutual Assistance in Criminal Matters (Convention against Corruption) Regulations 2005.
b) Discriminatory prosecutions and double jeopardy
Australia will not grant a request for assistance if there are substantial grounds for believing it was made for the purpose of prosecuting, punishing or otherwise causing prejudice to a person on account for her/his race, sex, religion, nationality or political opinions: 8(1) (c) MACMA Australia likewise, it will not assist if the request violates the principle of double jeopardy as the person to whom the request relates has been acquitted, pardoned, or punished under the law the requesting state: section 8(1)(f).
c) Death penalty
Australian law limits, but does not entirely exclude, assistance in death penalty cases. It distinguishes between two situations:
In the first situation, the request relates to the prosecution or punishment of a person charged with, or convicted of, an offence for which the death penalty may be imposed. The Australian Attorney-General must refuse this request unless, having regard to the special circumstances of the case, s/he is of the opinion that the request should be granted: section 8(1A) MACMA Australia. In other words, there is a presumption against granting the request, and a discretion to allow the request in special cases.
In the second situation, the offence is not subject to the death penalty under the foreign law but the Australian Attorney General believes the request may result in the imposition of the death penalty. In this situation, s/he may refuse the request if, 'after taking into consideration the interests of international criminal co?operation, [s/he] is of the opinion that in the circumstances of the case the request should not be granted': section 8(1B) MACMA Australia. Therefore, there is a presumption in favour of the request, and a discretion to refuse the request in some cases.
The MACMA Australia does not state what factors the Australian Attorney-General should consider in exercising his/her discretion in either situation. It is likely that these would include an undertaking by the requesting state not to apply the death penalty in that case, the frequency with which the death penalty is applied and the nature of the assistance sought. In short, it seems that the Australian Attorney-General will balance the risk to the accused of facing execution against the interests of international cooperation in criminal matters. (See the Attorney-General's Website in death penalty matters)
Section 8(2)(d) MACMA Australia also provides that requests which prejudice the safety of any person (whether in or outside Australia) may be refused.
d) Dual criminality
The Australian Attorney-General may refuse requests which relate to conduct which would not have been criminal under Australian law. Section 8(2) MACMA Australia states:
'A request by a foreign country for assistance under this Act may be refused if, in the opinion of the Australian 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; or
- (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'.
This 'dual criminality' requirement is discretionary and, according to some sources, it will usually be waived in corruption cases involving foreign public officials: OECD. Australia: Review of Implementation of the Convention and 1997 Recommendations (OECD, Paris 1999) (available at http://www.oecd.org/dataoecd/0/29/2378916.pdf) at 18. If it is applied, however, dual criminality means the requesting state must show that:
- the conduct has been criminalized in Australia (a 'criminalization' test)
- given where the offence was allegedly commited, Australia would have had jurisdiction over theoffence in like circumstances (a 'geographical jurisdiction' test).
i) Meeting the criminalization test
No single Australian jurisdiction recognizes an offence of 'corruption' as such. Rather a range of state and federal laws criminalizes various corrupt behaviors. The Commonwealth Criminal Code Act 1995 is particularly relevant to asset recovery cases as it contains the offences of:
These offences apply to 'legal entities' pursuant to section 12(1) of Part 2.5 (Chapter 2) of Criminal Code.
In addition, the Crimes Act 1914 criminalizes obstruction of justice and the Financial Management and Accountability Act 1997 and Commonwealth Authorities and Companies Act 1997 together penalize improper dealings with public money. State and territory criminal laws, moreover, contain general property offences such as theft, fraud and extortion (though note these differ from state to state due to Australia's federal structure). State and Commonwealth laws regulate money laundering (see the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth)).
ii) Meeting the geographical jurisdiction test
If the conduct which is the subject of the request occurred outside the requesting State, it will be necessary to show that Australia would have had jurisdiction under the same circumstances. Under Commonwealth law, there is a presumption that conduct is criminal if it was committed or has results at least in part in Australia (section 14.1 Criminal Code Act 1995). This presumption is often displaced in corruption offences. So, foreign bribery is subject to a special jurisdictional requirement in section 70.5 Criminal Code Act 1995 and domestic bribery and forgery are each subject to the extended geographical jurisdiction in section 15.4 Criminal Code Act 1995.
The Australian Attorney-General may also refuse the request, if the conduct could not have been prosecuted or punished due to a lapse of time or any bar to prosecution or punishment. The relevant law is the Australian law in effect at the time of the offence: section 8(2)(c) MACMA Australia.
Australia will refuse to assist if granting the request would:
- prejudice the sovereignty, security or national interest of Australia or the essential interests of a State or territory: section 8(1)(e)
- prejudice an Australian criminal investigation or proceeding: section 8(2)(d) MACMA Australia
- impose an excessive burden on Australian resources: section 8(2)(f) MACMA Australia.
Subject to an bi- or multi-lateral MLA treaties between Australia and the requesting state, the Australian Attorney-General has no power to refuse a request for assistance because it would violate banking secrecy or because the offence relates to a fiscal matter. To the contrary, 'criminal offence' is defined in section 3 MACMA Australia to include 'a criminal matter relating to revenue (including taxation and customs duties)' (see also the definition of offence in section 3). Moreover, section 34T MACMA Australia creates an immunity from suit for financial instituions and their employees, officers and agents, who provide information about customer activities in particular MLA proceedings. Australia may not rely on bank secrecy to refuse requests made under the UNCAC and OECD Bribery Convention.
4. General discretion to refuse requests and provide assistance subject to conditions
The Australian Attorney-General retains discretion to refuse requests if 'it is appropriate, in all the circumstances of the case, that the assistance requested should not be granted': section 8(2)(g) MACMA Australia. In addition, there is a speciality requirement ('restriction of use of information') under section 43B MACMA Australia and a power for the Australian Attorney General to provide assistance subject to conditions: section 9 MACMA Australia.
