Commonwealth: Mutual Assistance in Criminal Matters Act 1987 (Cth)

Mutual Assistance in Criminal Matters Act 1987 No. 85, 1987 Compilation No. 41 Compilation date: 14 September 2023 Includes amendments up to: Act No. 63, 2023 Registered: 16 September 2023 About this compilation This compilation This is a compilation of the Mutual Assistance in Criminal Matters Act 1987 that shows the text of the law as amended and in force on 14 September 2023 (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 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 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 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 Self‑repealing provisions If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.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 Part I—Preliminary 1 Short title 2 Commencement 3 Interpretation 4 Act to extend to external Territories 4A Application of the Criminal Code 5 Objects of the Act 6 Act not to limit other provision etc. of assistance 7 Application of Act 8 Refusal of assistance 9 Assistance may be provided subject to conditions 10 Request by Australia 11 Request by foreign country Part II—Assistance in relation to taking of evidence and production of documents or other articles Division 1—Requests by Australia 12 Requests by Australia Division 2—Requests by foreign countries 13 Requests by foreign countries for the taking of evidence or the production of documents 13AA Enforcement of orders 13AB Commonwealth and State and Territory laws apply in relation to taking evidence and producing documents etc. 13A Requests by foreign countries for provision of material lawfully obtained Part III—Assistance in relation to search and seizure 14 Requests by Australia for search and seizure 15 Requests by foreign countries for search and seizure—action by Attorney‑General Part IIIA—Assistance in relation to stored communications 15B Requests by foreign countries for stored communications Part IIIBA—Assistance in relation to use of surveillance devices 15C Requests by Australia for surveillance devices 15CA Requests by foreign countries for surveillance devices Part IIIBB—Assistance in relation to data held in computers 15CB Simplified outline of this Part 15CC Requests by foreign countries for assistance in relation to data held in computers Part IIIB—Assistance in relation to telecommunications data 15D Requests by foreign countries for telecommunications data Part IV—Arrangements for persons to give evidence or assist investigations Division 1—Requests by Australia 16 Requests for removal of certain persons to Australia 17 Arrangements between Attorney‑General and State Ministers in relation to custody of certain persons 18 Custody of certain persons 19 Immunities 20 Status of person prosecuted for offence committed after departure from foreign country 21 Limitation on use of evidence or assistance given by certain persons 22 Conditions of imprisonment 23 Release of certain persons upon request by foreign country 25 Arrest of person who has escaped from custody 25A Aiding persons to escape etc. Division 2—Requests by foreign countries 26 Requests for giving of evidence at hearings in foreign countries 27 Requests for assistance in relation to investigations in foreign countries 28 Effect of removal to foreign country on prisoner's term of imprisonment Part IVA—Forensic procedures Division 1—Requests by Australia 28A Requests by Australia for forensic procedures Division 2—Requests by foreign countries 28B Requests by foreign countries for forensic procedures 28C Providing forensic evidence to foreign countries Part V—Custody of persons in transit 29 Transit 31 Arrest of person in transit 31A Aiding persons to escape etc. Part VI—Proceeds of crime Division 1—Requests by Australia 32 Requests for enforcement of orders 33 Requests for issue of orders in foreign countries Division 2—Requests by foreign countries Subdivision A—Enforcement of foreign orders 33A Object of Subdivision 34 Requests for enforcement of foreign orders 34A Registration of foreign orders 34B Enforcement of foreign forfeiture orders 34C Effect on third parties of registration of foreign forfeiture orders 34D Enforcement of foreign pecuniary penalty orders 34E Enforcement of foreign restraining orders 34F Copies of foreign orders sent by fax, email or other electronic means 34G Cancelling registration 34H Certain provisions of the Proceeds of Crime Act not to apply Subdivision B—Restraining orders relating to foreign criminal proceedings 34J Requests for restraining orders 34K Applying for and making restraining orders 34L Excluding property from restraining orders 34M Cessation of restraining orders Subdivision C—Production orders relating to foreign serious offences 34P Applying for and making production orders 34Q Retaining produced documents Subdivision D—Notices to financial institutions 34R Giving notices to financial institutions 34S Contents of notices to financial institutions 34T Protection from suits etc. for those complying with notices 34U Making false statements in applications 34V Disclosing existence or nature of notice 34W Failing to comply with a notice Subdivision E—Monitoring orders relating to foreign serious offences 34Y Applying for and making monitoring orders 34Z Passing on information given under monitoring orders Subdivision F—Search warrants relating to foreign serious offences 34ZB Applying for and issuing search warrants 34ZC Contents of POCA search warrants 34ZCA Seizure of certain property or things found in the course of search 34ZD Return of seized property to third parties 34ZE Dealing with certain seized property 34ZF Dealing with evidential material and certain property or things seized under POCA search warrants Subdivision G—Authorisation of authorised officers 34ZG Attorney‑General may authorise authorised officers Division 3—Provisions relating to registered foreign restraining orders 35 Court may order Official Trustee to take custody and control of property 35A Procedural matters 35B Ancillary orders 35C Dealing with restrained property 35D Money not to be paid into the Common Investment Fund 35E Undertakings 35F Order to discharge certain registered foreign pecuniary penalty orders 35G Official Trustee to carry out orders 35H Discharge of person's liability under foreign pecuniary penalty order 35J Creation of charge on property 35K When the charge ceases to have effect 35L Registering charges 35M When order ceases to be in force Part VIIA—Search, seizure and powers of arrest Division 1—General 38A Object of Part Division 2—Issue of search warrants 38B Application for search warrant 38C When search warrants may be issued 38D Content of warrants 38E The things authorised by a search warrant in relation to premises 38F The things authorised by a search warrant in relation to a person 38G Restrictions on personal searches 38H Warrants may be issued by telephone etc. 38I Formalities relating to warrants issued by telephone etc. Division 3—Execution of search warrants 38J Availability of assistance and use of force in executing a warrant 38K Copy of warrant to be shown to occupier etc. 38L Specific powers available to officers executing warrants 38M Use of equipment to examine or process things 38N Use of electronic equipment at premises 38O Compensation for damage to electronic equipment 38P Copies of seized things to be provided 38Q Occupier entitled to watch search 38R Receipts for things seized under warrant etc. Division 4—Arrest and related matters 38S Power to enter premises to arrest person 38T Use of force in making arrest 38U Persons to be informed of grounds of arrest 38V Power to search an arrested person Division 5—General 38W Conduct of ordinary searches and frisk searches 38X Announcement before entry 38Y Offence for making false statements in warrants 38Z Offences relating to telephone warrants 38ZA Retention of things seized 38ZB Arrest of person released on bail Part VIII—Miscellaneous 38ZC Judges of the Federal Circuit and Family Court of Australia (Division 2)—consent to nomination 38ZD Magistrates and Judges of the Federal Circuit and Family Court of Australia (Division 2)—personal capacity 39 Arrangements with Governors of States 39A Requests by Attorney‑General on behalf of a defendant 39B Certificate by Attorney‑General if foreign country refuses request made under section 39A 40 Delegation 41 Jurisdiction of courts 42 Evidence 43 Authentication of documents 43A Admissibility of certain documents—requests under the Money‑Laundering Convention 43B Restriction on use of information etc. 43C Requests for international assistance not to be disclosed 43D Collection, use or disclosure of personal information for international assistance purposes—the Privacy Act 1988 44 Regulations Endnotes Endnote 1—About the endnotes Endnote 2—Abbreviation key Endnote 3—Legislation history Endnote 4—Amendment history An Act relating to the provision and obtaining of international assistance in criminal matters Part I—Preliminary 1 Short title This Act may be cited as the Mutual Assistance in Criminal Matters Act 1987. 2 Commencement (1) Section 1 and this section shall come into operation on the day on which this Act receives the Royal Assent. (2) The remaining provisions of this Act shall come into operation on a day or days fixed by Proclamation. 3 Interpretation (1) In this Act, unless the contrary intention appears: account has the same meaning as in the Proceeds of Crime Act. agent has the same meaning as in the Proceeds of Crime Act. ancillary offence, in relation to an offence (in this definition called the main offence), means: (a) an offence of conspiring to commit the main offence; or (b) an offence of aiding, abetting, inciting, counselling or procuring, or being in any way knowingly concerned in, the commission of the main offence; or (c) an offence of receiving or assisting another person in order to enable the person to escape punishment for, or to dispose of the proceeds of, the main offence; or (d) an offence of attempting to commit the main offence. approved form means a form approved by the Attorney‑General in writing for the purposes of the provision in which the expression occurs. Australia, when used in a geographical sense, includes the external Territories. Australian forfeiture order means: (a) a forfeiture order within the meaning of a proceeds of crime law; or (aa) a declaration made under section 95 of the Proceeds of Crime Act; or (ab) a declaration made under subsection 30(8A) of the Proceeds of Crime Act 1987; or (b) an interstate forfeiture order within the meaning of the Proceeds of Crime Act; or (c) an order or declaration, made under Australian law, that: (i) orders the forfeiture of property in respect of an offence against Australian law or declares that property has been forfeited in respect of an offence against Australian law; and (ii) is, in accordance with the regulations, to be taken to be an Australian forfeiture order for the purposes of this Act. Australian law means the laws of the Commonwealth, the States and the Territories. Australian literary proceeds order means: (a) a literary proceeds order within the meaning of the Proceeds of Crime Act; or (b) an order, made under Australian law, that: (i) imposes a pecuniary penalty on a person in respect of an offence against Australian law; and (ii) is, in accordance with the regulations, to be taken to be an Australian literary proceeds order for the purposes of this Act. Australian pecuniary penalty order means: (a) a pecuniary penalty order within the meaning of a proceeds of crime law; or (b) an interstate pecuniary penalty order within the meaning of the Proceeds of Crime Act; or (c) an order, made under Australian law, that: (i) imposes a pecuniary penalty on a person in respect of an offence against Australian law; and (ii) is, in accordance with the regulations, to be taken to be an Australian pecuniary penalty order for the purposes of this Act. Australian restraining order means: (a) a restraining order within the meaning of a proceeds of crime law (other than a restraining order made by virtue of section 59 of the Proceeds of Crime Act 1987 or section 34K of this Act); or (b) an interstate restraining order within the meaning of the Proceeds of Crime Act; or (c) an order, made under Australian law, that: (i) restrains a particular person, or all persons, from dealing with property; and (ii) is, in accordance with the regulations, to be taken to be an Australian restraining order for the purposes of this Act. authorised officer has the same meaning as in the Proceeds of Crime Act. benefit has the same meaning as in the Proceeds of Crime Act. carrier has the same meaning as in the Telecommunications (Interception and Access) Act 1979 (other than Part 5‑4 or 5‑4A of that Act). cartel offence means an offence by a corporation involving cartel conduct. child has the same meaning as in Part ID of the Crimes Act 1914. committal proceeding, in relation to a foreign offence, includes: (a) any proceeding to determine whether a person should be tried for the offence (whether or not a particular person is specified at the commencement of that proceeding as the person in relation to whom the determination is to be made); and (b) a proceeding that is, in accordance with the regulations, to be taken to be a committal proceeding for the purposes of this Act. communication has the same meaning as in the Telecommunications (Interception and Access) Act 1979. Confiscated Assets Account means the account established under section 295 of the Proceeds of Crime Act. criminal investigation means an investigation into an offence (whether the offence is believed to have been committed, to be being committed or to be likely to be committed). criminal matter includes: (a) a criminal matter relating to revenue (including taxation and customs duties); (b) a criminal matter relating to foreign exchange control; (c) a matter relating to the forfeiture or confiscation of property in respect of an offence; (d) a matter relating to the imposition or recovery of a pecuniary penalty in respect of an offence; and (e) a matter relating to the restraining of dealings in property, or the freezing of assets, that may be forfeited or confiscated, or that may be needed to satisfy a pecuniary penalty imposed, in respect of an offence; whether arising under Australian law or a law of a foreign country. criminal proceeding, in relation to an offence, means a trial of a person for the offence or a committal proceeding in respect of the offence. eligible Judge means a Judge of the Federal Circuit and Family Court of Australia (Division 2) in relation to whom a consent under subsection 38ZC(1) and a nomination under subsection 38ZC(2) are in force. enforcement agency has the same meaning as in the Proceeds of Crime Act. evidential material means: (a) in Subdivision F of Division 2 of Part VI—evidence relating to: (i) property in relation to which a foreign forfeiture order or foreign restraining order has been or could be made; or (ii) property of a person in relation to whom a foreign pecuniary penalty order has been or could be made; or (iii) tainted property; or (iv) benefits derived from the commission of a foreign serious offence; or (b) otherwise—a thing relevant to a proceeding or investigation, including such a thing in electronic form. executing officer, in relation to a warrant, means: (a) the police officer named in the warrant, by the Magistrate or eligible Judge 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. federal prisoner means a person who is being held in custody pending trial for or sentence for, or is under a sentence of imprisonment for, an offence against a law of the Commonwealth or of a Territory, but does not include a person who is at large after having escaped from lawful custody. financial institution has the same meaning as in the Proceeds of Crime Act. foreign confiscation proceedings means proceedings in a foreign country in respect of the making of a foreign forfeiture order or a foreign pecuniary penalty order. foreign forfeiture order means: (a) an order, made under the law of a foreign country by a court or other judicial authority, for the forfeiture of property in respect of an offence against the law of that country; or (b) a declaration, direction, notice, decree or other decision (however described), made under the law of a foreign country by a court or other judicial authority, evidencing forfeiture of property under the law of that country. foreign law immunity certificate means a certificate given, or a declaration made, by a foreign country or under a law of a foreign country, certifying or declaring that, under the law of the foreign country, persons generally or a specified person could or could not, either generally or in specified proceedings and either generally or in specified circumstances, be required: (a) to answer a specified question; or (b) to produce a specified document. foreign offence means an offence against a law of a foreign country. foreign order means: (a) a foreign forfeiture order; or (b) a foreign pecuniary penalty order; or (c) a foreign restraining order. foreign pecuniary penalty order means an order, made under the law of a foreign country by a court or other judicial authority, imposing a pecuniary penalty in respect of an offence against the law of that country, but does not include an order for the payment of a sum of money by way of compensation, restitution or damages to an injured person. foreign prisoner means a person who is being held in custody pending trial for or sentence for, or is under a sentence of imprisonment for, an offence against a law of a foreign country, but does not include a person who is at large after having escaped from lawful custody. foreign restraining order means an order: (a) made under the law of a foreign country (whether or not by a court) in respect of an offence against the law of that country; and (b) which is, or purports to be, made for the purpose of preserving property (whether or not the order also purports to do other things) including an order: (i) restraining a particular person or persons from dealing with the property; or (ii) freezing the property; or (iii) directing the seizure of the property; or (iv) directing that the property be taken into official custody or control. foreign serious offence means a serious offence against a law of a foreign country. forensic evidence has the same meaning as in Part ID of the Crimes Act 1914. forensic material has the same meaning as in Part ID of the Crimes Act 1914. forensic procedure has the same meaning as in Part ID of the Crimes Act 1914. 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. 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. incapable person has the same meaning as in Part ID of the Crimes Act 1914. instrument, in relation to an offence, has the same meaning as in the Proceeds of Crime Act. interception warrant information has the same meaning as in the Telecommunications (Interception and Access) Act 1979. interest, in relation to property, has the same meaning as in the Proceeds of Crime Act. international production order has the same meaning as in Schedule 1 to the Telecommunications (Interception and Access) Act 1979. investigative proceeding means a proceeding covered by paragraph (a) or (b) of the definition of proceeding. lawfully accessed information has the same meaning as in the Telecommunications (Interception and Access) Act 1979. lawfully intercepted information has the same meaning as in the Telecommunications (Interception and Access) Act 1979. Magistrate means: (a) a Magistrate of a State (other than the Northern Territory) in respect of whom an arrangement under section 39 is in force; or (aa) a Judge, or an acting Judge, of the Local Court of the Northern Territory in respect of whom an arrangement under section 39 is in force; or (c) a Magistrate of an external Territory. Money‑Laundering Convention means the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime, done at Strasbourg on 8 November 1990. 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. mutual assistance treaty means a treaty relating in whole or in part to the provision of assistance in criminal matters. narcotic substance has the same meaning as in the Proceeds of Crime Act. offence includes an offence against a law relating to taxation, customs duties or other revenue matters or relating to foreign exchange control. offence under the ordinary criminal law of Australia means an offence against Australian law other than an offence under the military law of Australia. officer, in relation to a financial institution, has the same meaning as in the Proceeds of Crime Act. 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. Official Trustee means the Official Trustee in Bankruptcy. 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. parent has the same meaning as in the Crimes Act 1914. person assisting has the same meaning as in the Proceeds of Crime Act. POCA search warrant means a search warrant issued under Part 3‑5 of the Proceeds of Crime Act in relation to a foreign serious offence. police officer means a member or special member of the Australian Federal Police or a member of the police force of a State or Territory. political offence has the same meaning as in the Extradition Act 1988, but does not include an offence constituted by conduct that, by a mutual assistance treaty (not being a bilateral treaty) in relation to the relevant country or any country, may be the subject of a request for mutual assistance, being an offence declared by regulations for the purposes of this paragraph not to be a political offence in relation to the country or all countries. premises includes: (a) a structure, building or vehicle; and (b) a place (whether enclosed or built upon or not); and (c) a part of premises (including premises of a kind referred to in paragraph (a) or (b)). prison includes a gaol, lock‑up or other place of detention. 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. proceeds, in relation to an offence, has the same meaning as in the Proceeds of Crime Act. proceeds jurisdiction has the same meaning as in the Proceeds of Crime Act. Proceeds of Crime Act means the Proceeds of Crime Act 2002. proceeds of crime authority has the same meaning as in the Proceeds of Crime Act. Note: Under that Act, the proceeds of crime authority is either the Commissioner of the Australian Federal Police or the Director of Public Prosecutions (see the definition of proceeds of crime authority in section 338 of that Act). proceeds of crime law means: (a) the Proceeds of Crime Act 2002; or (b) the Proceeds of Crime Act 1987. property has the same meaning as in the Proceeds of Crime Act. protected IPO intercept information means information that: (a) is protected information (within the meaning of Schedule 1 to the Telecommunications (Interception and Access) Act 1979); and (b) either: (i) was obtained in accordance with an international production order issued under clause 30 or 60 of that Schedule; or (ii) relates to such an international production order. protected IPO stored communications information means information that: (a) is protected information (within the meaning of Schedule 1 to the Telecommunications (Interception and Access) Act 1979); and (b) either: (i) was obtained in accordance with an international production order issued under clause 39 or 69 of that Schedule; or (ii) relates to such an international production order. protected IPO telecommunications data information means information that: (a) is protected information (within the meaning of Schedule 1 to the Telecommunications (Interception and Access) Act 1979); and (b) either: (i) is telecommunications data obtained in accordance with an international production order; or (ii) relates to an international production order that required the disclosure of telecommunications data. protected SD information means information that is protected information within the meaning of paragraph 44(1)(a), (aa), (b) or (c) of the Surveillance Devices Act 2004. public authority of a foreign country means any authority or body constituted by or under a law of a foreign country. 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. related foreign serious offence: a foreign serious offence is a related foreign serious offence in relation to another foreign serious offence if the physical elements of the 2 offences are: (a) substantially the same acts or omissions; or (b) acts or omissions in a single series. 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. 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. responsible enforcement agency head means the head of the enforcement agency whose authorised officer is responsible for executing a POCA search warrant. search warrant means a warrant issued under section 38C. 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. serious offence means an offence the maximum penalty for which is: (a) death; or (b) imprisonment for a period exceeding 12 months; or (c) a fine exceeding 300 penalty units. Note 1: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit. Note 2: Paragraph (c)—see also subsection (1A) of this section. State includes: (a) the Australian Capital Territory; and (b) the Northern Territory. 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. State prisoner means a person who is being held in custody pending trial for or sentence for, or under a sentence of imprisonment for, an offence against a law of a State, but does not include a person who is at large after having escaped from lawful custody. stored communication has the same meaning as in the Telecommunications (Interception and Access) Act 1979. stored communications warrant information has the same meaning as in the Telecommunications (Interception and Access) Act 1979. 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. tainted property means: (a) proceeds of a foreign serious offence; or (b) an instrument of a foreign serious offence. tape recording means audio recording, video recording or recording by other electronic means. telecommunications data (except when used in Part IIIB) has the same meaning as in Schedule 1 to the Telecommunications (Interception and Access) Act 1979. telecommunications system has the same meaning as in the Telecommunications (Interception and Access) Act 1979. Territory does not include: (a) the Australian Capital Territory; or (b) the Northern Territory. treaty includes a convention, protocol or agreement. trial, in relation to a foreign offence, includes any proceeding to determine whether a person should be convicted of the offence. vehicle includes any means of transport. 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. (1AA) A reference to an order in the definitions of foreign forfeiture order, foreign pecuniary penalty order and foreign restraining order in subsection (1) includes a reference to a declaration, direction, notice, decree or other decision (however described). (1A) In determining, for the purpose of a request by a foreign country, the Australian dollar equivalent of a fine (whether expressed as an amount or by way of penalty units) or pecuniary penalty (however described) that may be imposed on a person for an offence to which the request relates, the fine or penalty is to be translated to Australian currency: (a) in relation to a country for which the Australian Tax Office publishes exchange rates—at the daily exchange rate listed on the Australian Tax Office website that applies on the day on which the request is received; and (b) in relation to any other country—at the exchange rate that applies at the time when the request is received. (2) For the purposes of this Act: (a) a colony, territory or protectorate of a foreign country; (b) a territory for the international relations of which a foreign country is responsible; and (c) a ship or aircraft of, or registered in, a foreign country; shall, unless the contrary intention appears, be deemed to be part of that foreign country. (3) Subsection (2) does not apply to a colony, territory or protectorate that is itself a foreign country to which this Act applies. (4) A reference in this Act to a law of a foreign country includes a reference to a law of a part of, or a law in force in a part of, the foreign country. (5) A reference in this Act to an Australian criminal offence is a reference to an offence against a law of the Commonwealth or of a Territory. (6) Without prejudice to its effect by virtue of subsection (5), this Act has effect as if a reference in this Act to an Australian criminal offence included a reference to an offence against a law of a State. 4 Act to extend to external Territories This Act extends to every external Territory. 4A Application of the Criminal Code Chapter 2 of the Criminal Code applies to all offences against this Act. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. 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 in respect of which powers may be exercised under this Act (whether or not in conjunction with other Australian laws); and (c) to facilitate the obtaining by Australia of international assistance in criminal matters. 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. 7 Application of Act (1) Subject to this section, this Act applies to all foreign countries. (2) The regulations may provide that this Act applies to a foreign country subject to: (a) any mutual assistance treaty between that country and Australia that is referred to in the regulations; and (b) any multilateral mutual assistance treaty (being a treaty to which that country is a party) that is referred to in the regulations. (3) If the regulations provide, in accordance with subsection (2), that this Act applies to a foreign country subject to a mutual assistance treaty, then: (a) if the treaty relates wholly to the provision of assistance in criminal matters—this Act applies subject to the limitations, conditions, exceptions or qualifications that are necessary to give effect to the treaty in relation to that country; or (b) if the treaty relates in part to the provision of assistance in criminal matters—this Act applies subject to the limitations, conditions, exceptions or qualifications that are necessary to give effect, in relation to that country, to that part of the treaty that relates to the provision of assistance in criminal matters. 8 Refusal of assistance (1) A request by a foreign country for assistance under this Act shall be refused if, in the opinion of the Attorney‑General: (a) the request relates to the investigation, prosecution or punishment of a person for an offence that is, or is by reason of the circumstances in which it is alleged to have been committed or was committed, a political offence; or (b) there are substantial grounds for believing that the request has been made with a view to investigating, prosecuting or punishing a person for a political offence; or (ba) the request relates to a foreign order in relation to an offence that is, or is by reason of the circumstances in which it is alleged to have been committed or was committed, a political offence; or (c) there are substantial grounds for believing that the request was made for the purpose of investigating, prosecuting, punishing or otherwise causing prejudice to a person on account of the person's race, sex, sexual orientation, religion, nationality or political opinions; or (ca) there are substantial grounds for believing that, if the request was granted, a person would be in danger of being subjected to torture; or (d) the request relates to the investigation, prosecution or punishment of a person in respect of an act or omission that if it had occurred in Australia, would have constituted an offence under the military law of Australia but not also under the ordinary criminal law of Australia; or (da) both of the following subparagraphs are satisfied: (i) the request relates to a foreign order in relation to an offence; (ii) an act or omission constituting the offence, had the act or omission occurred in Australia, would have constituted an offence under the military law of Australia but not also under the ordinary criminal law of Australia; or (e) the granting of the request would prejudice the sovereignty, security or national interest of Australia or the essential interests of a State or Territory. (1A) A request by a foreign country for assistance under this Act must be refused if: (a) the request relates to the investigation, prosecution or punishment of: (i) a person arrested or detained on suspicion of having committed an offence; or (ii) a person charged with, or convicted of, an offence; and (b) the offence is one in respect of which the death penalty may be imposed in the foreign country; unless the Attorney‑General is of the opinion, having regard to the special circumstances of the case, that the assistance requested should be granted. (1B) A request by a foreign country for assistance under this Act may be refused if the Attorney‑General: (a) believes that the provision of the assistance may result in the death penalty being imposed on a person; and (b) after taking into consideration the interests of international criminal co‑operation, is of the opinion that in the circumstances of the case the request should not be granted. (2) A request by a foreign country for assistance under this Act may be refused if, in the opinion of the Attorney‑General: (a) the request relates to the investigation, 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 at the time at which the request was received; or (b) both of the following subparagraphs are satisfied: (i) the request relates to a foreign order in relation to an offence; (ii) an act or omission constituting the offence, had the act or omission occurred in Australia, would not have constituted an offence against Australian law at the time at which the request was received; or (c) the request relates to the investigation, prosecution or punishment of a person for an offence in a case where: (i) the person has been acquitted or pardoned by a competent tribunal or authority in the foreign country, or in Australia or another country; or (ii) the person has undergone the punishment provided by the law of the foreign country, or of Australia or another country; in respect of that offence or of another offence constituted by the same act or omission as that offence; or (d) the provision of the assistance could prejudice an investigation or proceeding in relation to a criminal matter in Australia; or (e) the provision of the assistance would, or would be likely to, prejudice the safety of any person (whether in or outside Australia); or (f) the provision of the assistance would impose an excessive burden on the resources of the Commonwealth or of a State or Territory; or (g) it is appropriate, in all the circumstances of the case, that the assistance requested should not be granted. 9 Assistance may be provided subject to conditions Assistance under this Act may be provided to a foreign country subject to such conditions as the Attorney‑General determines. 10 Request by Australia (1) A request for international assistance in a criminal matter that Australia is authorised to make under this Act may be made only by the Attorney‑General. (2) Subsection (1) does not prevent the Attorney‑General on behalf of Australia from requesting international assistance in a criminal matter other than assistance of a kind that may be requested under this Act. 11 Request by foreign country (1) A request by a foreign country for international assistance in a criminal matter may be made to the Attorney‑General or a person authorised by the Attorney‑General, in writing, to receive requests by foreign countries under this Act. (2) A request must be in writing and must include or be accompanied by the following information: (a) the name of the authority concerned with the criminal matter to which the request relates; (b) a description of the nature of the criminal matter and a statement setting out a summary of the relevant facts and laws; (c) a description of the purpose of the request and of the nature of the assistance being sought; (d) any information that may assist in giving effect to the request. However, a failure to comply with this subsection is not a ground for refusing the request. (3) Where a request by a foreign country is made to a person authorised under subsection (1), the request shall be taken, for the purposes of this Act, to have been made to the Attorney‑General. (4) If a foreign country makes a request to a court in Australia for international assistance in a criminal matter: (a) the court must refer the request to the Attorney‑General; and (b) the request is then taken, for the purposes of this Act, to have been made to the Attorney‑General. Part II—Assistance in relation to taking of evidence and production of documents or other articles Division 1—Requests by Australia 12 Requests by Australia (1) Australia may request the appropriate authority of a foreign country: (a) to arrange for: (i) evidence to be taken in the foreign country; or (ii) a document or other article in the foreign country to be produced; for the purposes of a proceeding or investigation relating to a criminal matter in Australia; and (aa) if subparagraph (a)(i) applies—to arrange for a tape recording to be made of the evidence to be taken; and (b) to arrange for the evidence (and if paragraph (aa) applies, the tape recording or a copy of it), document or other article to be sent to Australia. (2) To remove any doubt, it is stated that: (a) any evidence may be taken; or (b) any document or other article may be obtained; in the foreign country even though, under Australian law: (c) the evidence could not have been taken; or (d) the document or other article could not have been obtained; by using in the circumstances processes similar to those used in the foreign country. (3) When making a request under subsection (1), Australia may also request that an opportunity be given for the person giving evidence, or producing the document or other article, to be examined or cross‑examined in person, or through a video link from Australia, by: (a) any party to the proceeding or that party's legal representative; or (b) any person being investigated or that person's legal representative. Division 2—Requests by foreign countries 13 Requests by foreign countries for the taking of evidence or the production of documents (1) This section applies if a foreign country (the requesting country) requests: (a) any of the following: (i) that evidence be taken in Australia; (ii) that evidence be taken in Australia and a tape recording be made of the evidence taken; (iii) that evidence be taken in Australia for live transmission by means of video link to a courtroom or other place in the requesting country; or (b) that documents or other articles in Australia be produced; for the purposes of a proceeding in relation to a criminal matter in that country or another foreign country (the foreign proceeding). (1A) The Attorney‑General may, by writing in accordance with the approved form, authorise: (a) the taking of the evidence and its transmission to the requesting country; or (b) the production of the documents or other articles and their transmission to the requesting country. (2) If the Attorney‑General gives an authorisation under subsection (1A): (a) in the case of the taking of evidence—a Magistrate or eligible Judge may do all or any of the following: (i) take evidence on oath or affirmation of the witness appearing before the Magistrate or Judge to give evidence in relation to the matter; (ii) direct that all or part of the proceeding be conducted in private; (iii) require a person to leave the place in Australia where the giving of evidence is taking place or going to take place; (iv) prohibit or restrict the publication of evidence given in the proceeding or of the name of a party to, or a witness in, the foreign proceeding; (v) subject to subsection 13AB(1), require the production of documents or other articles; (vi) take such action as the Magistrate or Judge considers appropriate to facilitate the foreign proceeding; (vii) perform any other function required by the regulations; or (b) in the case of the production of documents or other articles—a Magistrate or eligible Judge may, subject to subsection 13AB(1), require the production of the documents or other articles and, where the documents or other articles are produced, a Magistrate or eligible Judge must send the documents, or copies of the documents certified by that Magistrate or Judge to be true copies, or the other articles, to the Attorney‑General. Note 1: Subparagraph (2)(a)(i)—see also subsection (2C). Note 2: Subparagraphs (2)(a)(ii), (iii) and (iv)—see also subsection (2B). (2A) However, a Magistrate or eligible Judge may not make a ruling about the admissibility of evidence in a foreign proceeding. (2B) If a Magistrate or eligible Judge is taking evidence for live transmission by means of video link to a courtroom or other place in the requesting country, the Magistrate or Judge: (a) may only exercise the powers mentioned in subparagraphs (2)(a)(ii), (iii) and (iv) at the request of the foreign court; and (b) may, at the request of the foreign court, assist with the administering by the foreign court of an oath or affirmation; and (c) may administer an oath or affirmation. (2C) If a Magistrate or eligible Judge takes evidence as mentioned in subparagraph (2)(a)(i) but not for live transmission by means of video link to a courtroom, or other place, in the requesting country, the Magistrate or Judge must: (a) if the requesting country requests that a tape recording be made of the evidence taken—cause a tape recording to be made of the evidence, certify that the evidence on the tape recording was taken by the Magistrate or Judge and cause the tape recording, or a copy of it, to be sent to the Attorney‑General; and (b) in any other case—cause the evidence to be put in writing, certify that the evidence was taken by the Magistrate or Judge and cause the writing so certified to be sent to the Attorney‑General. (2D) If, in taking evidence as mentioned in paragraph (2)(a), a Magistrate or eligible Judge requires the production of documents or other articles under subparagraph (2)(a)(v), a Magistrate or eligible Judge must send the documents, or copies of the documents certified by that Magistrate or Judge to be true copies, or the other articles, to the Attorney‑General. (3) The evidence of such a witness may be taken in the presence or absence of the person to whom the proceeding in the requesting country relates or of his or her legal representative (if any). (4) The Magistrate or eligible Judge conducting a proceeding under subsection (2) may permit: (a) the person to whom the proceeding in the requesting country relates; (b) any other person giving evidence or producing documents or other articles at the proceeding before the Magistrate or Judge; and (c) the relevant authority of the requesting country; to have legal representation at the proceeding before the Magistrate or Judge. (4A) If the requesting country has so requested, the Magistrate or eligible Judge conducting a proceeding under subsection (2) may permit: (a) any person to whom the proceeding in the requesting country relates or that person's legal representative; or (b) the legal representative of the relevant authority of the requesting country; to examine or cross‑examine in person, or through a video link from the requesting country, any person giving evidence or producing a document or other article, at the proceeding. (4B) For the purposes of Part III of the Crimes Act 1914: (a) the proceeding before the Magistrate or eligible Judge is a judicial proceeding; and (b) evidence taken from a witness on oath or affirmation is testimony given in a judicial proceeding. (5) The certificate by the Magistrate or eligible Judge under subsection (2) shall state whether, when the evidence was taken or the documents or other articles were produced, any of the following persons were present: (a) the person to whom the proceeding in the requesting country relates or his or her legal representative (if any); (b) any other person giving evidence or producing documents or other articles or his or her legal representative (if any). 13AA Enforcement of orders (1) If a Magistrate or eligible Judge is conducting a proceeding under subsection 13(2) and makes an order relating to the conduct of the proceeding, the order must be complied with. (2) In the case of an eligible Judge, subject to the Rules of Court made under Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021, the order may be enforced as if the order were an order of the Federal Circuit and Family Court of Australia (Division 2). (3) In any other case, subject to the rules of the court of which the Magistrate is a member, the order may be enforced as if the order were an order of that court. 13AB Commonwealth and State and Territory laws apply in relation to taking evidence and producing documents etc. (1) Subject to subsection (2), the following laws apply, so far as they are capable of application, for the purposes of a proceeding under section 13 in a State or Territory: (a) laws of the Commonwealth with respect to the compelling of persons to attend before an eligible Judge; (b) laws of the Commonwealth with respect to giving evidence, answering questions and producing documents or other articles before an eligible Judge; (c) laws of a State or Territory with respect to the compelling of persons to attend before a Magistrate; (d) laws of that State or Territory with respect to giving evidence, answering questions and producing documents or other articles before a Magistrate. (2) For the purposes of section 13: (a) the person to whom the proceeding in the requesting country relates is competent but not compellable to give evidence; and (b) a person who is required to give evidence, or produce documents or other articles, for the purposes of a proceeding in relation to a criminal matter in the requesting country or another foreign country, is not compellable to answer a question, or produce a document or article, that the person is not compellable to answer or produce, as the case may be, in the proceeding in that country. (3) Paragraph (2)(b) does not apply if its application would be inconsistent with a provision of a mutual assistance treaty between Australia and the requesting country concerned. (4) A duly authenticated foreign law immunity certificate is admissible in proceedings under section 13 as prima facie evidence of the matters stated in the certificate. 13A Requests by foreign countries for provision of material lawfully obtained (1) If: (a) a foreign country (the requesting country) has commenced an investigation into, or proceedings in relation to, a serious offence against the laws of that country; and (b) that foreign country requests the provision of material relevant to that investigation or those proceedings; and (c) the Attorney‑General is satisfied that the material requested is: (i) material lawfully obtained by an enforcement agency in Australia; and (ii) material lawfully in the possession of that enforcement agency; the Attorney‑General may, by writing in accordance with the approved form, authorise the provision of that material to the requesting country. (2) The Attorney‑General may only authorise the provision to the requesting country of material specified in column 1 of the following table if the request relates to a serious offence against the laws of that country specified in column 2 of the table: Offences for which provision of particular material may be authorised Item Column 1 Column 2 1 material that is or includes protected SD information a serious offence punishable by a maximum penalty of imprisonment for 3 years or more, imprisonment for life or the death penalty 2 material that is or includes lawfully accessed information or stored communications warrant information a serious offence punishable by a maximum penalty of: (a) imprisonment for 3 years or more, imprisonment for life or the death penalty; or (b) a fine of an amount that is at least equivalent to 900 penalty units 3 material that is or includes lawfully intercepted information or interception warrant information (a) a serious offence punishable by a maximum penalty of imprisonment for 7 years or more, imprisonment for life or the death penalty; or (b) a cartel offence punishable by a maximum penalty of a fine of an amount that is at least equivalent to $10,000,000 4 material that is or includes protected IPO intercept information a serious offence punishable by a maximum penalty of imprisonment for 7 years or more, imprisonment for life or the death penalty 5 material that is or includes: a serious offence punishable by a maximum penalty of imprisonment for 3 years or more, imprisonment for life or the death penalty (a) protected IPO stored communications information; or (b) protected IPO telecommunications data information (3) An authorisation by the Attorney‑General under subsection (1) may include a direction to an authorised officer of the enforcement agency having possession of the material about how the material is to be provided to that foreign country. (4) In authorising the provision of material to a foreign country, the Attorney‑General may specify the uses to which that material can be put. (5) An authorisation by the Attorney‑General under subsection (1) is not a legislative instrument. (6) In this section: authorised officer includes a law enforcement officer within the meaning of the Surveillance Devices Act 2004. enforcement agency includes a law enforcement agency within the meaning of the Surveillance Devices Act 2004. material lawfully obtained by an enforcement agency in Australia includes: (a) material obtained from individuals or entities by consent; and (b) material obtained by warrant or the exercise of a coercive power by a court in Australia for the purposes of a domestic investigation or prosecution. Part III—Assistance in relation to search and seizure 14 Requests by Australia for search and seizure (1) This section applies to a proceeding or investigation relating to a criminal matter involving a serious offence against an Australian law if there are reasonable grounds to believe that a thing relevant to the proceeding or investigation may be located in a foreign country. (2) If this section applies to a proceeding or investigation, Australia may request the appropriate authority of the foreign country: (a) to obtain a warrant or other instrument that, in accordance with the law of the foreign country, authorises: (i) a search for a thing relevant to the proceeding or investigation; and (ii) if such a thing, or any other thing that is or may be relevant to the proceeding or investigation is found as a result of the search—the seizure of that thing; and (b) to arrange for the thing that has been seized to be sent to Australia. (3) If the appropriate authority of the foreign country has obtained any thing relevant to the proceeding or investigation by means of a process authorised by the law of that country other than the issue (as requested by Australia) of a warrant or other instrument authorising the seizure of the thing, the thing: (a) is not inadmissible in evidence in the proceeding; or (b) is not precluded from being used for the purposes of the investigation; on the ground alone that it was obtained otherwise than in accordance with the request. 15 Requests by foreign countries for search and seizure—action by Attorney‑General Where: (a) a proceeding or investigation relating to a criminal matter involving a serious offence has commenced in a foreign country; (b) there are reasonable grounds to believe that evidential material relating to the investigation or proceeding is located in Australia; and (c) the foreign country requests the Attorney‑General to arrange for the evidential material to be obtained; the Attorney‑General may, in his or her discretion, authorise a police officer, in writing, to apply to a Magistrate or eligible Judge for one or more search warrants in respect of the evidential material. Note: Divisions 2 and 3 of Part VIIA make provision relating to applications for, and the issue and execution of, search warrants requested by foreign countries. Part IIIA—Assistance in relation to stored communications 15B Requests by foreign countries for stored communications The Attorney‑General may, in his or her discretion, authorise the Australian Federal Police or a police force or police service of a State, in writing, to apply for a stored communications warrant under section 110 of the Telecommunications (Interception and Access) Act 1979 if the Attorney‑General is satisfied that: (a) an investigation, or investigative proceeding, relating to a criminal matter involving an offence against the law of a foreign country (the requesting country) has commenced in the requesting country; and (b) the offence to which the investigation, or investigative proceeding, relates is punishable by a maximum penalty of: (i) imprisonment for 3 years or more, imprisonment for life or the death penalty; or (ii) a fine of an amount that is at least equivalent to 900 penalty units; and (c) there are reasonable grounds to believe that stored communications relevant to the investigation, or investigative proceeding, are held by a carrier; and (d) the requesting country has requested the Attorney‑General to arrange for access to the stored communications. Note: Information obtained under the warrant may only be communicated to the requesting country on certain conditions: see subsection 142A(1) of the Telecommunications (Interception and Access) Act 1979. Part IIIBA—Assistance in relation to use of surveillance devices 15C Requests by Australia for surveillance devices (1) This section applies if: (a) an investigation in relation to an offence punishable by a maximum penalty of imprisonment for 3 years or more has commenced in Australia; and (b) the use of a surveillance device (however described) is reasonably necessary for the purpose of obtaining information relevant to: (i) the commission of the offence; or (ii) the identity or location of the offenders. (2) Australia may request an appropriate authority of a foreign country: (a) to authorise the use of a surveillance device (however described), in accordance with the law of that country, to obtain the information referred to in paragraph (1)(b); and (b) to arrange for any such information that has been obtained to be sent to Australia. (3) Subsection (4) applies if: (a) Australia makes a request under this section; and (b) the foreign country obtains any information referred to in paragraph (1)(b) by means of a process authorised by the law of that country other than the use (as requested by Australia) of a surveillance device. (4) The information obtained by the foreign country: (a) is not inadmissible in evidence in a proceeding that relates to the investigation; or (b) is not precluded from being used for the purposes of the investigation; on the ground alone that it was obtained otherwise than in accordance with the request. 15CA Requests by foreign countries for surveillance devices (1) The Attorney‑General may, in his or her discretion, authorise an eligible law enforcement officer, in writing, to apply for a surveillance device warrant under section 14 of the Surveillance Devices Act 2004 if the Attorney‑General is satisfied that: (a) an investigation, or investigative proceeding, relating to a criminal matter involving an offence against the law of a foreign country (the requesting country) that is punishable by a maximum penalty of imprisonment for 3 years or more, imprisonment for life or the death penalty has commenced in the requesting country; and (b) the requesting country requests the Attorney‑General to arrange for the use of a surveillance device; and (c) the requesting country has given appropriate undertakings in relation to: (i) ensuring that the information obtained as a result of the use of the surveillance device will only be used for the purpose for which it is communicated to the requesting country; and (ii) the destruction of a document or other thing containing information obtained as a result of the use of the surveillance device; and (iii) any other matter the Attorney‑General considers appropriate. (2) In this section: eligible law enforcement officer means a person mentioned in column 3 of item 5 of the table in subsection 6A(6), or in column 3 of item 5 of the table in subsection 6A(7), of the Surveillance Devices Act 2004. Part IIIBB—Assistance in relation to data held in computers 15CB Simplified outline of this Part • If a foreign country requests the Attorney‑General to arrange for access to data held in a computer, the Attorney‑General may authorise an eligible law enforcement officer to apply for a computer access warrant under section 27A of the Surveillance Devices Act 2004. • The authorisation relates to an investigation, or investigative proceeding, relating to a criminal matter involving an offence against the law of the foreign country. Note: See subsection 27A(4) of the Surveillance Devices Act 2004. 15CC Requests by foreign countries for assistance in relation to data held in computers (1) The Attorney‑General may, in the Attorney‑General's discretion, authorise an eligible law enforcement officer, in writing, to apply for a computer access warrant under section 27A of the Surveillance Devices Act 2004 if the Attorney‑General is satisfied that: (a) an investigation, or investigative proceeding, relating to a criminal matter involving an offence against the law of a foreign country (the requesting country) that is punishable by a maximum penalty of imprisonment for 3 years or more, imprisonment for life or the death penalty has commenced in the requesting country; and (b) the requesting country requests the Attorney‑General to arrange for access to data held in a computer (the target computer); and (c) the requesting country has given appropriate undertakings in relation to: (i) ensuring that data obtained as a result of access under the warrant will only be used for the purpose for which it is communicated to the r