Mutual Assistance in Criminal Matters (Brazil) Regulation 2016
In ForceCTH
Jurisdiction
Commonwealth
Collection
legislative instrument
Plain English Summary
4/10 complexity
This regulation applies the Mutual Assistance in Criminal Matters Act 1987 to Brazil by adopting the 2014 Australia–Brazil mutual legal assistance treaty (text in Schedule 1). It governs how Australian and Brazilian authorities request and provide cross‑border assistance in criminal investigations and prosecutions.
Mechanics to note: Central Authorities manage requests (Art 6); there are express grounds for refusal and postponement (Art 4), confidentiality and use limits (Art 7), and cost allocation (Requesting Party pays travel, escorts and expert fees — Art 11). It fixes who decides, who pays, and what procedural steps must be followed.
This Regulation brings the Australia-Brazil mutual legal assistance treaty into the legal framework of the Mutual Assistance in Criminal Matters Act 1987. Mechanically it does three things.
First, it declares the instrument name and commencement mechanics (regs 1 and 2). The instrument as made will come into force on the later of: the day after it is registered, and the day the Treaty between Australia and the Federative Republic of Brazil on Mutual Legal Assistance in Criminal Matters, done at Brisbane on 15 November 2014, comes into force for Australia (reg 2(1) table). The instrument requires the Minister to announce the day the Treaty enters into force for Australia by notifiable instrument (reg 2(1) column 2). The instrument also contains a formal note that any information placed in column 3 of the commencement table is not part of the instrument (reg 2(2)); that table includes an editorial entry (not part of the instrument) referencing a notifiable instrument dated 18 February 2026.
Second, it states the legislative authority under which the Regulation is made: subsection 7(2) of the Mutual Assistance in Criminal Matters Act 1987 (reg 3). It defines the term Act as the Mutual Assistance in Criminal Matters Act 1987 (reg 4).
Third, and most substantively for practice, reg 5 applies the Mutual Assistance in Criminal Matters Act 1987 to Brazil subject to the Treaty text reproduced at Schedule 1. Schedule 1 sets out the full Treaty text concluded in Brisbane on 15 November 2014, comprising general provisions, procedures, specific measures (evidence, search and seizure, asset measures, transfer and witness attendance provisions), and final provisions (entry into force, amendment, termination, dispute settlement).
Operationally, once in force, the effect is to make Brazil a State to which Australia’s Mutual Assistance Act applies but subject to the Treaty terms. The Treaty identifies Central Authorities (Article 6), specifies the content requirements of requests (Article 5), lists the forms of assistance available and excluded (Articles 1 and 2), lays out grounds and processes for refusal or postponement (Article 4), and prescribes rules on confidentiality, costs, translations and the handling of evidence and seized property (Articles 7, 11, 8, 9, 12-22). The Treaty also provides diplomatic dispute resolution (Article 27) and specifies that assistance may be refused where execution would impose an excessive burden, subject to Article 11 (Article 4(1)(j)).
The Schedule reproduces the Treaty in English and records that it was signed in English and Portuguese, each text being equally authentic. The Regulation integrates that treaty text into the domestic statutory regime for mutual legal assistance by affirmative application under reg 5.
Main concepts
The Treaty in Schedule 1 organises mutual legal assistance around a small set of legal technology concepts that will determine how requests are prepared, assessed and executed.
Mutual legal assistance scope. Article 1 defines the scope: assistance for investigation, prosecution and suppression of crime and for proceedings related to criminal matters. Article 1 expressly includes taxation, customs duties, foreign exchange and other financial or revenue matters in the meaning of criminal matters. The forms of assistance are enumerated and non‑exclusive: taking evidence, obtaining statements, providing documents and records, locating persons and objects, examining sites, search and seizure, delivery of property, making persons in custody available, service of documents, measures to locate restrain and forfeit proceeds and instruments of crime, and other assistance consistent with the Treaty and the law of the Requested Party (Article 1(3)(a)-(k)).
Exclusions and limits. Article 2 lists explicit exclusions: extradition, enforcement of criminal sentences in the territory of the Requested Party except as allowed by that Party’s law, and transfer of persons to serve sentences. Article 4 provides grounds for refusal including death penalty issues, threats to sovereignty, public order or safety, political offences, discriminatory prosecution, double jeopardy incompatibility, military‑only offences, lack of dual criminality where the acts would not constitute an offence in the Requested Party, and excessive burden on resources (subject to Article 11).
Central Authorities and channels. Article 6 establishes designated Central Authorities: for Australia the Commonwealth Attorney‑General’s Department, for Brazil the Ministry of Justice. Requests are made and received through those Central Authorities; direct communication is permitted between Central Authorities and diplomatic channels remain available.
Procedural content rules. Article 5 prescribes what must be included in a request. Core items are the identity and contact details of the competent authority, description of the investigation or proceedings with facts and applicable laws, purpose and nature of assistance, confidentiality needs, and any desired time limit. Additional specifics required where relevant include identity and location of persons, particular procedures desired, basis for belief that evidence is within the Requested Party, detailed description for search and seizure, questions to be asked of witnesses, custody and return arrangements for evidence and persons, any final court order to be enforced and allowances and expenses payable.
Who it affects
At the institutional level the Treaty and Regulation directly affect three groups of actors.
Central Authorities and government agencies. The primary administrative actors are the Central Authorities named in Article 6: the Commonwealth Attorney‑General’s Department for Australia and the Ministry of Justice for Brazil. Those Central Authorities are responsible for receiving, transmitting and liaising about requests. They will decide whether requests as drafted meet Treaty contents (Article 5), whether confidentiality conditions can be accommodated (Article 7), and whether to request additional information. Domestic law enforcement and prosecuting agencies that depend on mutual assistance will need to route requests through the Attorney‑General’s Department and follow the Treaty’s content and format rules.
Investigative and prosecuting authorities. Law enforcement, prosecution services, regulatory investigative bodies and tax authorities in the Requesting Party who seek evidence, documents, search and seizure, service, witness attendance, or asset recovery in Brazil will be affected. Article 1 explicitly includes investigations and proceedings relating to taxation, customs duties, foreign exchange and financial or revenue matters, bringing revenue and regulatory agencies into scope. Such authorities must prepare requests that specify facts, legal bases, evidence to be sought, witness questions, translations, and time limits per Article 5. They must plan for costs borne by the Requesting Party where required by Article 11, such as travel and expert fees.
Persons and entities subject to requests. Individuals and organisations who are the subject of investigations or prosecutions are directly affected. The Treaty enables location, questioning, taking of statements, search and seizure, and temporary transfer for testimony (Articles 1, 12, 13, 16, 17, 22). Persons temporarily transferred are afforded safe conduct protections in Article 18 for prior acts and compelled testimony beyond the target proceeding, but those protections lapse after set conditions such as failure to leave within 30 days after notification that attendance is no longer required. Bona fide third parties who hold property potentially subject to restraint or confiscation under Article 19 are implicated because the Requested Party must respect third party rights under its law.
Legal practitioners and courts. Legal representatives may be permitted to appear or question witnesses during the execution of requests subject to the law and procedures of the Requested Party (Article 12(4)). Courts in both countries will be implicated where judicial cooperation, enforcement of foreign final orders for confiscation, or service of documents is sought; Article 15 requires return of originals or objects upon request and Article 19 contemplates giving effect to foreign final confiscation orders to the extent domestic law permits.
Key duties and rights
The Treaty prescribes affirmative duties, conditional powers and reciprocal rights that structure mutual assistance.
Duties of the Central Authorities. Article 6 requires each Party to designate a Central Authority for transmitting and receiving requests and enables direct communication between Central Authorities. The Australian Central Authority is the Commonwealth Attorney‑General’s Department; the Brazilian Central Authority is the Ministry of Justice (Article 6(1)). The Central Authorities must handle requests, make inquiries about progress (Article 3(3)), promptly inform the other Party of circumstances likely to cause significant delay (Article 3(4)), and inform the Requesting Party of the outcome of execution (Article 3(5)).
Content and form duties on requesters. Article 5 mandates what requests must include: identity and contact details of the competent authority, a description of the investigation or proceedings with facts and applicable laws, the purpose and nature of the assistance sought, any need for confidentiality and reasons, and any time limit. Where necessary and possible requests must also include identity, nationality and location of persons, particular procedures sought, the basis for belief that evidence may be found in the Requested Party, precise descriptions for search and seizure, the form of evidence or statements, custody and return arrangements, statement of a final court order sought to be enforced, and information on allowances and expenses for persons giving evidence. Requests must be in writing but may be made by other means in urgent circumstances provided authenticity can be established; confirmation in writing must follow unless waived (Article 5).
Duties on the Requested Party. Article 3 requires prompt execution in accordance with the Requested Party’s law and, as far as not prohibited by that law, in the manner requested. The Requested Party shall, where possible, execute requests regardless of bank secrecy (Article 3(2)). The Requested Party must respond to reasonable inquiries about progress and advise of significant delays and outcomes (Article 3(3)-(5)). Article 15 requires that originals and objects transmitted shall be returned upon request. Article 19 imposes duties to endeavour to ascertain location of proceeds and instruments of crime, to take permitted measures to freeze, seize and confiscate, and, to the extent permitted by its law, to give effect to a Requesting Party’s final order to forfeit or to return/share confiscated property.
Refusal and postponement rights. Article 4 gives the Requested Party specific grounds for refusal or postponement: death penalty issues, impairment of sovereignty/security/public order, political character of the offence, discriminatory or abusive prosecution purposes, double jeopardy incompatibility, military law offences not criminal under ordinary law, acts that would not be offences under the Requested Party’s law, and excessive burden on human or financial resources (subject to Article 11). Article 4 obliges the Requested Party to inform the Requesting Party promptly of decisions not to comply or to postpone and to give reasons, and to consider whether assistance may be provided subject to conditions.
Penalties and enforcement
The Treaty and Regulation are intergovernmental cooperation instruments; they do not themselves create novel criminal offences or prescribe domestic criminal penalties. Enforcement and penalties are therefore procedural and administrative rather than punitive in the Treaty text.
Administrative enforcement and compliance monitoring. The principal enforcement mechanism is the Central Authority channel. The Attorney‑General’s Department and Brazil’s Ministry of Justice are tasked with receiving, executing and overseeing requests (Article 6). Article 3 imposes obligations on the Requested Party to respond to inquiries, inform the Requesting Party of delays and outcomes, and consider conditions for assistance. Central Authorities will therefore enforce compliance through diplomatic and administrative means: refusing or postponing requests on the grounds articulated in Article 4, requesting additional information per Article 5, or imposing conditions under Article 4(3).
Refusal, postponement and conditional compliance. Article 4 sets out explicit legal bases for refusing assistance; it requires the Requested Party to inform the Requesting Party of the decision and to give reasons. The ability to refuse provides a practical enforcement lever within the Treaty for protection of sovereignty, public order and other core interests. Where necessary, assistance may be granted subject to conditions the Requested Party deems necessary; acceptance by the Requesting Party binds it to comply with those conditions (Article 4(3)). Those mechanisms work as the principal means by which compliance is managed between the Parties.
Judicial and domestic enforcement. Where the Requested Party’s domestic law requires judicial process to execute certain forms of assistance (for example to authorise a search warrant or to execute a foreign confiscation order), judicial bodies within the Requested Party will exercise their domestic enforcement powers under national law. The Treaty contemplates that the Requested Party will take measures permitted by its law to freeze, seize and confiscate proceeds and instruments of crime (Article 19(2)); any domestic penalties or remedies applied will derive from the Requested Party’s law and procedural safeguards, including respect for bona fide third party rights (Article 19(5)).
No Treaty criminal sanctions. The Treaty does not prescribe fines or prison penalties for failure to comply with a request; nor does it create automatic cross‑border enforcement of domestic criminal sanctions. Instead enforcement is through administrative refusal, condition imposition, domestic judicial processes for execution of requests and diplomatic consultation. Article 27 provides a mechanism for settling disputes through diplomatic channels; there is no arbitration or international court enforcement mechanism in the text.
How it interacts with other laws
The Treaty’s architecture is explicitly subordinated to the domestic law and procedures of the Requested Party at multiple points, and it contains cross‑referencing clauses that require careful coordination with existing statutes, procedural rules and evidentiary regimes.
Application under the Mutual Assistance Act. The Regulation applies the Mutual Assistance in Criminal Matters Act 1987 to Brazil subject to the Treaty (reg 5). The instrument is made under subsection 7(2) of the Act (reg 3). That means requests governed by the Treaty will be processed through the legal framework, administrative procedures and judicial mechanisms established or permitted by the Mutual Assistance Act, subject to any specific departures in the Treaty text. Practitioners must therefore read the Treaty alongside the Mutual Assistance Act to determine domestic processes for request transmission, execution and judicial authorisations.
Priority of domestic law in execution. The Treaty repeatedly conditions execution on the law and procedures of the Requested Party. Article 3 requires execution in accordance with the Requested Party’s law and, insofar as not prohibited by that law, in the manner required by the Requesting Party. Article 1(3)(k) confines assistance to forms that are consistent with the law of the Requested Party. Article 8(2) allows certification of documents only insofar as not prohibited by the Requested Party’s law. Article 22 requires requests for search and seizure to be executed insofar as the Requested Party’s law permits. These provisions mean the Requested Party’s domestic criminal procedure, evidence, privacy and property laws will shape what steps are actually possible under a request.
Interplay with bank secrecy and confidentiality regimes. Article 3(2) states that the Requested Party, in accordance with its laws and procedures, may execute a request regardless of bank secrecy. That does not automatically abrogate bank secrecy regimes; it authorises the Requested Party to proceed if its law permits. Thus where a request seeks banking records, the Requested Party must reconcile the Treaty request with its bank secrecy and privacy rules. The Requested Party’s decision to execute despite bank secrecy may itself be governed by domestic legal standards, judicial authorisations and administrative safeguards.
Conflict with double jeopardy and human rights standards. Article 4(1)(f) allows refusal where the request relates to an offence the prosecution of which in the Requesting Party would be incompatible with the Requested Party’s law on double jeopardy. Article 4(1)(a) permits refusal where the request relates to an offence carrying the death penalty. Article 4(1)(b) allows refusal where execution would impair sovereignty, security, public order or prejudice safety. These grounds require comparison with domestic constitutional, human rights or statutory protections in the Requested Party; domestic courts may be drawn on to resolve tensions between execution of a request and rights protections.
Amendment history
This Regulation contains internal statements about commencement and the status of the instrument as originally made, and the Schedule contains the 2014 Treaty text. The instrument itself was made under subsection 7(2) of the Mutual Assistance in Criminal Matters Act 1987 and was dated 14 April 2016, signed by the Governor‑General and the Minister for Justice. The Regulation’s commencement provision (reg 2) establishes that the whole instrument commences on the later of registration and the Treaty coming into force for Australia, and contains a ministerial notifiable‑instrument requirement for announcing the Treaty’s entry into force.
The instrument includes a formal note that the commencement table relates only to the provisions as originally made and will not be amended in that published table to deal with later amendments of this instrument. Reg 2(2) states that any information in column 3 of the commencement table is not part of the instrument and may be edited in any published version. The commencement table as printed contains an editorial entry listing 18 February 2026 and a notifiable instrument number (F2026N00118); reg 2(2) makes clear that such editorial items are not part of the legal instrument.
Schedule 1 reproduces the Treaty signed on 15 November 2014. Article 25 of the Treaty provides that the Treaty may be amended at any time by mutual consent of the Parties, in accordance with domestic procedures. Article 26 sets out entry into force and termination mechanics: the Treaty enters into force 30 days after the Parties notify each other in writing through diplomatic channels that their respective requirements for entry into force have been fulfilled; either Party may terminate the Treaty by written notice through diplomatic channels and termination takes effect 180 days after notice is given.
The Regulation text contains no subsequent amending provisions or schedules of amendments. It also contains no record of domestic Parliamentary amendments or modifications to the Treaty text. Practitioners must therefore check parliamentary and Federal Register of Legislation records for any later amending instruments or for the Minister’s notifiable instrument announcing the Treaty’s entry into force for Australia, because reg 2 requires the Minister to make that announcement and the commencement of the instrument depends on that event.
Because the Treaty itself contemplates amendment by mutual consent and allows termination on notice, the bilateral legal framework can change by diplomatic agreement and domestic implementing steps. The instrument provides no retrospective amendment history or list of later ministerial instruments; the text as provided should be treated as the original instrument dated 2016 with the 2014 Treaty text in Schedule 1.
Litigation history
The Regulation and Treaty text reproduced in Schedule 1 contain no cases, adjudications or references to litigation arising under this specific instrument. The printed instrument does not cite any judicial decisions, nor does the Treaty invoke any international adjudicative forum for dispute settlement beyond diplomatic consultation under Article 27. Article 27 provides for consultation and diplomatic channels to resolve any disputes concerning interpretation, application or implementation of the Treaty; it does not provide for referral to an international court or arbitration.
Because the Treaty explicitly permits the Parties to consult and to resolve disputes by diplomatic channel when Central Authorities cannot agree, legal disputes about execution or interpretation would first be directed through Central Authorities and diplomatic negotiation rather than immediate judicial enforcement under the Treaty text.
Practitioners should therefore assume there is no direct international case law attached to this instrument within the Schedule. Any litigation arising from the execution of a specific request will proceed under domestic law in the relevant jurisdiction; those domestic proceedings are not recorded in the instrument. To determine whether any domestic litigation has interpreted or applied the Treaty or the Regulation since its signing, practitioners must search domestic case law databases and administrative records beyond the instrument text provided here.
Gotchas
Several concrete practical traps and points of friction arise directly from the Treaty text and the way the Regulation incorporates it. These are matters that practitioners and compliance officers should watch for.
Commencement dependency and ministerial announcement. The Regulation’s operational existence depends on two events: registration and the Treaty entering into force for Australia. Reg 2 requires the Minister to make a notifiable instrument announcing entry. The commencement table contains editorial information that is not part of the instrument (reg 2(2)); do not rely on the column 3 editorial material as authoritative law. Verify the Minister’s published notifiable instrument before relying on the instrument for action.
Translation requirements. Article 9 requires requests and supporting documents to be accompanied by a translation into the language of the Requested Party. For Brazil that means Portuguese translations are necessary. Failing to provide accurate and complete translations risks delay under Article 5(7), which allows the Requested Party to ask for additional details. Urgent requests may be transmitted by means capable of producing a written record provided authenticity can be established, but written confirmation must follow (Article 5(4)). Budget for translation costs and time.
Dual criminality considered by totality not label. Article 4(1)(g) and its explanatory paragraph clarify dual criminality: whether the acts would constitute an offence in the Requested Party does not depend on terminological match or categorisation; the totality of acts or omissions shall be taken into account and differences in constituent elements under domestic law do not necessarily defeat dual criminality. Practitioners must frame requests by describing the totality of acts and the underlying conduct, not merely citing the domestic offence label.
Bank secrecy and privacy. Article 3(2) permits the Requested Party to execute requests regardless of bank secrecy insofar as that Party’s laws and procedures permit. That does not mean bank secrecy is overridden automatically; the Requested Party will apply its law. Expect requests for financial records to trigger domestic statutory checks, judicial authorisations, and potential delays. Where secrecy regimes exist, be prepared to justify requests and supply the factual basis called for in Article 5(2)(c) for search and seizure or production.
Costs and resource refusal interaction. Article 11 assigns execution costs to the Requested Party, but Article 4(1)(j) permits refusal where assistance would impose an excessive burden on human or financial resources, “subject to Article 11”. That creates an interaction: if extraordinary expenses are needed, Parties must consult (Article 11(2)). Practically, if the Requested Party deems execution would require extraordinary resources and the Requesting Party is unwilling to pay, the request may be refused. Budget and resource planning is therefore a strategic consideration for requesters.
How to comply
This section gives a practical, source‑grounded checklist and workflow for preparing, lodging and following up mutual assistance requests under the Treaty, grounded in the specific Treaty provisions reproduced in Schedule 1.
Confirm Treaty in force and Central Authority route
Verify the Minister’s notifiable instrument announcing the Treaty’s entry into force for Australia as required by reg 2(1). Do not rely on commencement table editorial notes alone. Once in force, route requests through the Commonwealth Attorney‑General’s Department, Australia’s designated Central Authority (Article 6(1)).
Prepare a compliant written request
Ensure requests include the mandatory items in Article 5(1): name and contact details of the competent authority, description of the investigation or proceedings including summary of relevant facts and the laws applicable, the purpose and nature of the assistance sought, any confidentiality requirements and justification, and any desired time limit.
Where applicable, provide additional details per Article 5(2): identity, nationality and location of subjects; the specific procedure or requirement to be followed and reasons; in search and seizure requests, the basis for belief that evidence is in the Requested Party’s jurisdiction and a precise description of the place and articles; for taking evidence, whether sworn or affirmed statements are required, the subject matter and a list of questions; for delivery of evidence, custody and return arrangements and any tests to be conducted; in transfer requests for persons, custody arrangements and date of return; the finality and copy of a court order to be enforced where relevant; and information on allowances and expenses for witnesses.
Attach all available supporting documents and, where applicable, certified copies. Remember Article 8(1) exempts documents processed through Central Authorities from certification unless otherwise required; still provide certifications where the Requesting Party’s admissibility rules require them and Article 8(2) permits such certification under the Requested Party’s law.
Translation and authenticity
Provide a translation of the request and supporting documents into the language of the Requested Party per Article 9. For Brazil that means Portuguese. For urgent requests transmitted by other means, ensure the transmission device allows authenticity verification, and follow up with written confirmation promptly as required by Article 5(4).
Current sections
Direct links to the current provisions in Mutual Assistance in Criminal Matters (Brazil) Regulation 2016.
1
1
Mutual Assistance in Criminal Matters (Brazil) Regulation 2016
Mutual Assistance in Criminal Matters (Brazil) Regulation 2016
I, General the Honourable Sir Peter Cosgrove AK MC (Ret’d), Governor‑General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following regulation.
Dated 14 April 2016
Peter Cosgrove
Governor‑General
By His Excellency’s Command
Michael Keenan
Minister for Justice
Contents
1 Name
2 Commencement
3 Authority
4 Definitions
5 Application of the Act
Schedule 1—Treaty between Australia and the Federative Republic of Brazil on Mutual Legal Assistance in Criminal Matters
1 Name
This is the Mutual Assistance in Criminal Matters (Brazil) Regulation 2016.
2 Commencement
(1) Each provision of this instrument specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information
Column 1 Column 2 Column 3
Provisions Commencement Date/Details
The whole of this instrument The later of:(a) the day after this instrument is registered; and(b) the day the Treaty between Australia and the Federative Republic of Brazil on Mutual Legal Assistance in Criminal Matters, done at Brisbane on 15 November 2014, comes into force for Australia.However, the provisions do not commence at all if the event mentioned in paragraph (b) does not occur.The Minister must announce, by notifiable instrument, the day the Treaty enters into force for Australia. 18 February 2026(F2026N00118)(paragraph (b) applies)
Note: This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.
(2) Any information in column 3 of the table is not part of this instrument. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument.
3 Authority
This instrument is made under subsection 7(2) of the Mutual Assistance in Criminal Matters Act 1987.
4 Definitions
In this instrument:
Act means the Mutual Assistance in Criminal Matters Act 1987.
5 Application of the Act
For paragraph 7(2)(a) of the Act, the Act applies to Brazil subject to the Treaty between Australia and the Federative Republic of Brazil on Mutual Legal Assistance in Criminal Matters, done at Brisbane on 15 November 2014, the English text of which is set out in Schedule 1.
Schedule 1—Treaty between Australia and the Federative Republic of Brazil on Mutual Legal Assistance in Criminal Matters
Note: See section 5.
Australia and the Federative Republic of Brazil hereinafter referred to as “the Parties”,
Desiring to improve the effectiveness of both countries in the investigation, prosecution and suppression of crime through co‑operation and mutual legal assistance in criminal matters,
Have agreed as follows:
PART I
GENERAL PROVISIONS
Article 1
Scope of assistance
The Parties shall provide mutual legal assistance in accordance with the provisions of this Treaty, in connection with the investigation and prosecution of offences, in proceedings related to criminal matters, irrespective of whether the assistance is sought or to be provided by a court or other competent authority.
Criminal matters shall also include investigations or proceedings relating to offences concerning taxation, customs duties, foreign exchange and other financial or revenue matters.
Assistance shall include:
taking of evidence and obtaining statements of persons, including experts;
provision of information, documents and other records, including criminal and government records, judicial documents and expert evaluations;
location of persons and objects, including their identification;
examining objects and sites to the extent that it is not inconsistent with the laws of the Requested Party;
search and seizure;
delivery of property and evidence;
making persons in custody and others available to give evidence or assist investigations;
service of documents, including documents seeking the attendance of persons;
measures to locate, restrain and forfeit the proceeds and instruments of crime and return and share assets;
other assistance consistent with the objects of this Treaty and the law of the Requested Party.
For the purposes of this Treaty, the Central Authority of the Requesting Party may, in accordance with its domestic laws, process or make requests for mutual legal assistance on behalf of other authorities, including those authorities responsible for, or entitled to conduct, investigations, prosecutions or judicial proceedings in accordance with the domestic law of the Requesting Party.
Article 2
Exclusions
Assistance shall not include:
the extradition of any person;
the execution in the territory of the Requested Party of criminal judgments imposed in the territory of the Requesting Party except to the extent permitted by the law of the Requested Party and this Treaty; and
the transfer of persons in custody to serve sentences.
Article 3
Execution of Requests
Requests for assistance shall be executed promptly in accordance with the law of the Requested Party and, insofar as it is not prohibited by that law, in the manner required by the Requesting Party.
The Requested Party, in accordance with its laws and procedures, may execute a request for assistance regardless of bank secrecy.
The Requested Party shall respond to reasonable inquiries by the Requesting Party concerning progress toward execution of the request.
The Requested Party shall promptly inform the Requesting Party of circumstances, when they become known, which are likely to cause a significant delay in responding to the request.
The Requested Party shall promptly inform the Requesting Party of the outcome of the execution of the request.
Article 4
Refusal or Postponement of Assistance
Assistance may be refused if:
the request relates to an offence in respect of which the death penalty may be imposed or executed;
the execution of the request would impair its sovereignty, security, public order, essential public interest or prejudice the safety of any person;
the request relates to an offence that is regarded by the Requested Party as an offence that is, or is by reason of the circumstances in which it is alleged to have been committed or was committed, of a political character;
there are grounds to believe the request has been made for the purpose of prosecuting a person on account of race, sex, religion, nationality, ethnic origin or political opinions, or that that person’s position may be prejudiced for any of these reasons;
the request relates to an offence the prosecution of which in the Requesting Party would be incompatible with the Requested Party’s law on double jeopardy;
the request relates to an offence that is regarded by the Requested Party as an offence under military law, which is not also an offence under ordinary criminal law;
the request related to an offence where acts or omissions alleged to constitute that offence would not, if they had taken place within the jurisdiction of the Requested Party, have constituted an offence, or could not be prosecuted in the Requested Party in similar circumstances; or
subject to Article 11, provision of the assistance sought could impose an excessive burden on the human or financial resources of that Party.
Assistance may be temporarily delayed by the Requested Party if execution of the request would interfere with an ongoing investigation, prosecution or civil proceeding in the territory of the Requested Party. Where appropriate, the Requested Party may, upon request, provide certified copies of documents.
The Requested Party shall promptly inform the Requesting Party of a decision not to comply in whole or in part with a request for assistance, or to postpone execution, and shall give reasons for that decision.
Before refusing to grant a request for assistance or before postponing the grant of such assistance, the Requested Party shall consider whether assistance may be granted subject to such conditions as it deems necessary. If the Requesting Party accepts assistance subject to these conditions it shall comply with them.
For the purposes of Article 4(1)(g), in determining whether the offence is an offence against the law of both Parties:
it shall not matter whether the laws of the Parties place the acts or omissions constituting the offence within the same category of the offence or denominate the offence by the same terminology;
the totality of the acts or omissions shall be taken into account and it shall not matter whether, under the laws of the Parties, the constituent elements of the offence differ.
PART II
PROCEDURES
Article 5
Contents of Requests
In all cases requests for assistance shall include:
the name and contact details of the competent authority conducting the investigation or proceedings to which the request relates;
a description of the nature of the investigation or proceedings, including a summary of the relevant facts and provision of the laws applicable to the request;
the purpose for which the request is made and the nature of the assistance sought;
the need, if any, for confidentiality and the reasons therefore; and
any time limit within which compliance with the request is desired.
To the extent necessary and possible, requests for assistance shall also contain the following information:
the identity, nationality and location of the person or persons who are the subject of the investigation or proceedings;
details of any particular procedure or requirement that the Requesting Party wishes to be followed and the reasons therefore;
in the case of requests for the taking of evidence or search and seizure, a statement indicating the basis for belief that evidence may be found in the jurisdiction of the Requested Party, as well as a precise description of the place to be searched and the articles to be seized or the appropriate person to be asked to produce the evidence;
in the case of requests to take evidence from a person, a statement as to whether sworn or affirmed statements are required, a description of the subject matter of the evidence or statement sought, and a list of questions to be asked;
in the case of delivery of evidence, the person or class of persons who will have custody of the evidence, the place to which the evidence is to be removed, any tests to be conducted and the date, if any, by which the evidence will be returned;
in the case of making persons in custody available for giving evidence or assisting in investigations, the person or class of persons who will have custody during the transfer, the place to which the detained person is to be transferred and the date of that person’s return;
the court order, if any, sought to be enforced and a statement to the effect that it is a final order; and/or
information as to any allowances and/or expenses to which a person giving evidence or assisting in investigations in the Requesting Party would be entitled.
If the Requested Party considers that the information contained in the request is not sufficient in accordance with this Treaty to enable the request to be dealt with, that Party may request that additional details be furnished.
A request for assistance shall be in writing. However, in urgent circumstances, a request may be made by any means capable of producing a written record under conditions allowing the Requested Party to establish authenticity. In such cases the Requesting Party shall confirm the request in writing promptly thereafter unless the Requested Party agrees otherwise.
Article 6
Central Authorities
Each Party shall designate a Central Authority for transmitting and receiving requests under this Treaty. The Central Authority for Australia shall be the Commonwealth Attorney‑General’s Department; the Central Authority for Brazil shall be the Ministry of Justice.
Requests under this Treaty shall be made by the Central Authority of the Requesting Party to the Central Authority of the Requested Party. However, the Parties may at any time designate any other authority as a Central Authority for the purposes of this Treaty. Notification of such a designation will take place through diplomatic channels.
The Central Authorities shall communicate directly with each other, however this does not preclude communication through diplomatic channels.
Article 7
Limitation of use and Confidentiality
The Requested Party may require, after consultation with the Requesting Party, that information or evidence furnished or the source of such information or evidence be kept confidential or be disclosed or used only subject to such terms and conditions as it may specify.
The Requesting Party shall not disclose or use information or evidence furnished for purposes other than those stated in the request without the prior consent of the Central Authority of the Requested Party.
The Requested Party shall, to the extent requested, keep confidential a request, its contents, supporting documents and any action taken pursuant to the request except to the extent necessary to execute it or where the disclosure is specifically authorised by the Requesting Party in accordance with any terms and conditions it may specify.
Subject to paragraph 3 of this Article, if the request cannot be executed without breaching the confidentially requirements stated in the request, the Requested Party shall so inform the Requesting Party which shall then determine the extent to which it wishes the request to be executed.
Article 8
Certification and Authentication
Subject to paragraph 2, documents processed through the Central Authorities in accordance with this treaty shall be exempt from certification or authentication, unless otherwise required.
Insofar as not prohibited by the law of the Requested Party, documents, records or objects shall be provided in a form or accompanied by such certification as may be specified by the Requesting Party in order to make them admissible according to the law of the Requesting Party.
Article 9
Language
Requests and supporting documents shall be accompanied by a translation into the language of the Requested Party.
Article 10
Representation
Unless otherwise provided in this Treaty, the Requested Party shall make all necessary arrangements for the representation of the Requesting Party in any proceedings arising out of a request for assistance and shall otherwise represent the interests of the Requesting Party.
Article 11
Expenses
The Requested Party shall meet the cost of executing the request for assistance, except that the Requesting Party shall bear:
the expenses associated with conveying any person to or from the territory of the Requested Party at the request of the Requesting Party, and any allowance and/or expenses payable to that person while in the territory of the Requesting Party pursuant to a request under Article 16 or 17 of this Treaty;
the expenses associated with conveying custodial or escorting officers; and
the expenses and fees of experts in the territory of either the Requested Party or the Requesting Party.
If it becomes apparent that the execution of the request requires expenses of an extraordinary nature, the Parties shall consult to determine the terms and conditions under which the requested assistance can be provided.
PART III
SPECIFIC PROVISIONS
Article 12
Taking of evidence
Where a request is made for the purpose of a proceeding in relation to a criminal matter in the territory of the Requesting Party, the Requested Party shall, upon request, take the evidence of witnesses for transmission to the Requesting Party.
For the purposes of this Treaty, the giving or taking of evidence shall include the production of documents, records or other material.
For the purpose of requests under this Article the Requesting Party shall specify the subject matters about which persons are to be examined, including any questions to be put.
The Parties to the relevant proceedings in the Requesting Party, their legal representatives and representatives of the Requesting Party may, subject to the law and procedures of the Requested Party, appear, question or present questions to be made to the person being examined.
A person who is required to give evidence in the Requesting Party under this Article may decline to give evidence where either:
the law of the Requested Party permits that witness to decline to give evidence in similar circumstance in proceedings originating in the Requested Party; or
where the law of the Requesting Party permits that witness to decline to give evidence in such proceedings in the Requesting Party.
If any person claims that there is a right to decline to give evidence under the law of the Requesting Party, the Central Authority of that Party shall, upon request, provide a written declaration to the Central Authority of the Requested Party as to the existence of that right. In the absence of evidence to the contrary, the declaration shall provide sufficient evidence as to the existence of that right.
Article 13
Obtaining of Statements
The Requested Party shall, upon request, endeavor to obtain statements of persons for the purpose of an investigation or proceeding in relation to a criminal matter in the territory of the Requesting Party.
For the purpose of requests made under this Article the Requesting Party shall specify the subject matter about which it seeks statements from persons, including any questions which it seeks to be put to the person.
Article 14
Presence of Persons Involved in Proceedings in the Requested Party
The Requested Party shall, upon request, inform the Requesting Party of the time and place of execution of the request for assistance.
To the extent not prohibited by the law of the Requested Party, judges or officials of the Requesting Party and other persons concerned in the investigation or proceedings may be permitted to be present at the execution of the request and to participate in the proceedings in the territory of the Requested Party.
Article 15
Transmission and Return of Documents and Objects
When the request for assistance concerns the transmission of records or documents, copies or originals, if required, may be transmitted by the Requested Party.
The original records or documents and the objects transmitted to the Requesting Party shall be returned to the Requested Party as soon as possible, upon the latter’s request.
Article 16
Availability of Persons to Give Evidence or Assist Investigations in the Requesting Party
The Requesting Party may request that a person be made available to give evidence or to assist an investigation.
The Requested Party shall, if satisfied that appropriate arrangements for the person’s security will be made, seek that person’s consent to assist in the investigation or to appear as a witness to give evidence in the Requesting Party. That person shall be informed of any expenses and/or allowances payable.
Article 17
Making Persons in Custody Available to Give Evidence or Assist Investigations
A person in custody in the territory of the Requested Party may, at the request of the Requesting Party, be temporarily transferred to the Requesting Party to give evidence or assist in investigations or proceedings, provided that the person consents to that transfer and there are no overriding grounds against transferring the person.
Where the person transferred is required to be kept in custody under the law of the Requested Party, the Requesting Party shall hold that person in custody and shall return the person in custody at the conclusion of the execution of the request or at such earlier time as that person is no longer required.
Where the Requested Party advises the Requesting Party that the transferred person is no longer required to be held in custody, that person shall be set at liberty and treated as a person present in the territory of the Requesting Party pursuant to a request under Article 16.
Article 18
Safe Conduct
Any person who attends in the territory of the Requesting Party pursuant to Article 16 or 17 shall not:
be detained, prosecuted or punished by that Party for any offence or be subject to any civil suit in the territory of that Party in respect of any act or omission which preceded that person’s departure from the territory of the Requested Party; or
without that person’s consent be required to give evidence in any proceeding other than the proceeding to which the request relates.
Paragraph 1 of this Article shall cease to apply if a person, being free to leave the Requesting Party, has not left it within a period of 30 (thirty) consecutive days after being officially notified that that person’s attendance is no longer required or, having left the territory, has returned.
Any person who fails to appear in the territory of the Requesting Party may not be subjected to any sanction or compulsory measure in the territory of the Requested Party or in the territory of the Requesting Party unless the person returns voluntarily to the territory of the Requesting Party and is there again duly served and fails to comply with that later service.
Article 19
Proceeds and Instruments of Crime
The Requested Party shall, upon request, endeavour to ascertain whether any proceeds or instruments of a crime are located within its jurisdiction and shall notify the Requesting Party of the results of its inquiries. In making the request, the Requesting Party shall notify the Requested Party of the basis of its belief that such proceeds or instruments may be located in its jurisdiction.
Where, pursuant to paragraph 1 of this Article, suspected proceeds or instruments of crime are found, the Requested Party shall take measures, as are permitted by its law, including provisional measures if appropriate, to freeze, seize and confiscate such proceeds or instruments.
The Requested Party shall, to the extent permitted by its law, give effect to a final order to forfeit or confiscate the proceeds or instruments of crime made by a court of the Requesting Party or take such other appropriate action to secure the proceeds or instruments following a request by the Requesting Party.
The Party that has custody over proceeds and instruments of crime shall dispose of them according to its laws. Insofar as its laws so permit, and on such terms as may be appropriate, the said Party may share with or return to the other any confiscated property or the proceeds from the sale thereof, less any costs resulting from the granting of assistance. The transfer of such property or proceeds shall generally be made on the basis of a final order referred to in paragraph 3 of this Article; however, the Requested Party may transfer or return such property or proceeds at an earlier stage, in accordance with its domestic law.
In the application of this Article, the rights of bona fide third parties shall be respected under the law of the Requested Party.
In this Article, “proceeds of crime” means any property suspected or found by a court to be property derived or realised, directly or indirectly, as a result of the commission of an offence or to represent the value of property and other benefits derived from the commission of an offence.
In this Article, “instruments of crime” means any property used in or intended to be used in, or in connection with, the commission of an offence.
Article 20
Service of Documents
The Requested Party shall effect service of documents which are transmitted to it for this purpose by the Requesting Party.
A request to effect service of a document requiring the appearance of a person shall be made to the Requested Party not less than forty‑five (45) days before the date on which the appearance is required. In urgent cases, the Requested Party may waive this requirement.
The Requested Party may effect service of any document by mail or, if the Requesting Party so requests, in any other manner required by the law of the Requesting Party which is not inconsistent with the law of the Requested Party.
The Requested Party shall forward to the Requesting Party proof of service of the documents. If service cannot be effected, the Requesting Party shall be so informed and advised of the reasons.
Article 21
Provision of publicly available and official documents
The Requested Party shall provide copies of documents and records that are open to public access as part of a public register or otherwise, or that are available for purchase by the public.
The Requested Party may provide copies of any official documents or records in the same manner and under the same conditions as such documents or records may be provided to its own law enforcement and judicial authorities.
Article 22
Search and Seizure
The Requested Party shall, insofar as its law permits, carry out requests for search and seizure and delivery of material to the Requesting Party provided the information supplied, including additional information requested pursuant to paragraph 3 of Article 5, if any, would justify such action under the law of the Requested Party.
The Requested Party shall provide such information as may required by the Requesting Party concerning the result of any search, the place of seizure and the subsequent custody of the material seized.
The Requesting Party shall observe any conditions imposed by the Requested Party in relation to any seized material which is delivered to the Requesting Party.
PART IV
FINAL PROVISIONS
Article 23
Other Assistance
This Treaty shall not derogate from obligations subsisting between the Parties, whether pursuant to other treaties or arrangements, or otherwise, nor prevent the Parties providing or continuing to provide assistance to each other pursuant to other treaties, arrangements or otherwise.
Article 24
Scope of Application
This Treaty shall apply to any request presented after its entry into force even if the relevant acts or omissions occurred before that date.
Article 25
Amendment
This Treaty may be amended at any time by mutual consent of the Parties, in accordance with domestic procedures.
Article 26
Entry into Force and Termination
This Treaty shall enter into force 30 (thirty) days after Parties have notified each other in writing through the diplomatic channel that their respective requirements for entry into force have been fulfilled.
Either Party may terminate this Treaty by notice in writing at any time through the diplomatic channel and it shall cease to be in force on the one hundred and eightieth day after the day on which notice has been given.
Article 27
Consultation and Dispute Settlement
The Parties shall consult promptly, at the request of either, concerning the interpretation, application or implementation of this Treaty either generally or in relation to a particular case.
Any dispute arising out of the interpretation, application or implementation of this Treaty shall be resolved through consultation by diplomatic channels if the Central Authorities of the Parties are themselves unable to reach agreement.
IN WITNESS WHEREOF, the undersigned, being duly authorised thereto by their respective Government, have signed this Treaty.
DONE at Brisbane in duplicate in the English and Portuguese languages, each text being equally authentic, this 15th day of November, 2014.
FOR AUSTRALIA
FOR THE FEDERATIVE REPUBLIC OF BRAZIL
Julie Bishop<br>Minister for Foreign Affairs
Luiz Alberto Figueiredo Machado<br>Minister of External Relations
Source text: opening excerpt
Sourced from the Federal Register of Legislation (legislation.gov.au), CC BY 4.0.
Mutual Assistance in Criminal Matters (Brazil) Regulation 2016
I, General the Honourable Sir Peter Cosgrove AK MC (Ret’d), Governor‑General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following regulation.
Dated 14 April 2016
Peter Cosgrove
Governor‑General
By His Excellency’s Command
Michael Keenan
Minister for Justice
Contents
1 Name
2 Commencement
3 Authority
4 Definitions
5 Application of the Act
Schedule 1—Treaty between Australia and the Federative Republic of Brazil on Mutual Legal Assistance in Criminal Matters
1 Name
This is the Mutual Assistance in Criminal Matters (Brazil) Regulation 2016.
2 Commencement
(1) Each provision of this instrument specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information
Column 1 Column 2 Column 3
Provisions Commencement Date/Details
The whole of this instrument The later of:(a) the day after this instrument is registered; and(b) the day the Treaty between Australia and the Federative Republic of Brazil on Mutual Legal Assistance in Criminal Matters, done at Brisbane on 15 November 2014, comes into force for Australia.However, the provisions do not commence at all if the event mentioned in paragraph (b) does not occur.The Minister must announce, by notifiable instrument, the day the Treaty enters into force for Australia. 18 February 2026(F2026N00118)(paragraph (b) applies)
Note: This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.
(2) Any information in column 3 of the table is not part of this instrument. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument.
3 Authority
This instrument is made under subsection 7(2) of the Mutual Assistance in Criminal Matters Act 1987.
4 Definitions
In this instrument:
Act means the Mutual Assistance in Criminal Matters Act 1987.
5 Application of the Act
For paragraph 7(2)(a) of the Act, the Act applies to Brazil subject to the Treaty between Australia and the Federative Republic of Brazil on Mutual Legal Assistance in Criminal Matters, done at Brisbane on 15 November 2014, the English text of which is set out in Schedule 1.
Schedule 1—Treaty between Australia and the Federative Republic of Brazil on Mutual Legal Assistance in Criminal Matters
Note: See section 5.
Australia and the Federative Republic of Brazil hereinafter referred to as “the Parties”,
Desiring to improve the effectiveness of both countries in the investigation, prosecution and suppression of crime through co‑operation and mutual legal assistance in criminal matters,
Have agreed as follows:
PART I
GENERAL PROVISIONS
Article 1
Scope of assistance
The Parties shall provide mutual legal assistance in accordance with the provisions of this Treaty, in connection with the investigation and prosecution of offences, in proceedings related to criminal matters, irrespective of whether the assistance is sought or to be provided by a court or other competent authority.
Criminal matters shall also include investigations or proceedings relating to offences concerning taxation, customs duties, foreign exchange and other financial or revenue matters.
Assistance shall include:
taking of evidence and obtaining statements of persons, including experts;
provision of information, documents and other records, including criminal and government records, judicial documents and expert evaluations;
location of persons and objects, including their identification;
examining objects and sites to the extent that it is not inconsistent with the laws of the Requested Party;
search and seizure;
delivery of property and evidence;
making persons in custody and others available to give evidence or assist investigations;
service of documents, including documents seeking the attendance of persons;
measures to locate, restrain and forfeit the proceeds and instruments of crime and return and share assets;
other assistance consistent with the objects of this Treaty and the law of the Requested Party.
For the purposes of this Treaty, the Central Authority of the Requesting Party may, in accordance with its domestic laws, process or make requests for mutual legal assistance on behalf of other authorities, including those authorities responsible for, or entitled to conduct, investigations, prosecutions or judicial proceedings in accordance with the domestic law of the Requesting Party.
Article 2
Exclusions
Assistance shall not include:
the extradition of any person;
the execution in the territory of the Requested Party of criminal judgments imposed in the territory of the Requesting Party except to the extent permitted by the law of the Requested Party and this Treaty; and
the transfer of persons in custody to serve sentences.
Article 3
Execution of Requests
Requests for assistance shall be executed promptly in accordance with the law of the Requested Party and, insofar as it is not prohibited by that law, in the manner required by the Requesting Party.
The Requested Party, in accordance with its laws and procedures, may execute a request for assistance regardless of bank secrecy.
The Requested Party shall respond to reasonable inquiries by the Requesting Party concerning progress toward execution of the request.
The Requested Party shall promptly inform the Requesting Party of circumstances, when they become known, which are likely to cause a significant delay in responding to the request.
The Requested Party shall promptly inform the Requesting Party of the outcome of the execution of the request.
Article 4
Refusal or Postponement of Assistance
Assistance may be refused if:
the request relates to an offence in respect of which the death penalty may be imposed or executed;
the execution of the request would impair its sovereignty, security, public order, essential public interest or prejudice the safety of any person;
the request relates to an offence that is regarded by the Requested Party as an offence that is, or is by reason of the circumstances in which it is alleged to have been committed or was committed, of a political character;
there are grounds to believe the request has been made for the purpose of prosecuting a person on account of race, sex, religion, nationality, ethnic origin or political opinions, or that that person’s position may be prejudiced for any of these reasons;
the request relates to an offence the prosecution of which in the Requesting Party would be incompatible with the Requested Party’s law on double jeopardy;
the request relates to an offence that is regarded by the Requested Party as an offence under military law, which is not also an offence under ordinary criminal law;
the request related to an offence where acts or omissions alleged to constitute that offence would not, if they had taken place within the jurisdiction of the Requested Party, have constituted an offence, or could not be prosecuted in the Requested Party in similar circumstances; or
subject to Article 11, provision of the assistance sought could impose an excessive burden on the human or financial resources of that Party.
Assistance may be temporarily delayed by the Requested Party if execution of the request would interfere with an ongoing investigation, prosecution or civil proceeding in the territory of the Requested Party. Where appropriate, the Requested Party may, upon request, provide certified copies of documents.
The Requested Party shall promptly inform the Requesting Party of a decision not to comply in whole or in part with a request for assistance, or to postpone execution, and shall give reasons for that decision.
Before refusing to grant a request for assistance or before postponing the grant of such assistance, the Requested Party shall consider whether assistance may be granted subject to such conditions as it deems necessary. If the Requesting Party accepts assistance subject to these conditions it shall comply with them.
For the purposes of Article 4(1)(g), in determining whether the offence is an offence against the law of both Parties:
it shall not matter whether the laws of the Parties place the acts or omissions constituting the offence within the same category of the offence or denominate the offence by the same terminology;
the totality of the acts or omissions shall be taken into account and it shall not matter whether, under the laws of the Parties, the constituent elements of the offence differ.
PART II
PROCEDURES
Article 5
Contents of Requests
In all cases requests for assistance shall include:
the name and contact details of the competent authority conducting the investigation or proceedings to which the request relates;
a description of the nature of the investigation or proceedings, including a summary of the relevant facts and provision of the laws applicable to the request;
the purpose for which the request is made and the nature of the assistance sought;
the need, if any, for confidentiality and the reasons therefore; and
any time limit within which compliance with the request is desired.
To the extent necessary and possible, requests for assistance shall also contain the following information:
the identity, nationality and location of the person or persons who are the subject of the investigation or proceedings;
details of any particular procedure or requirement that the Requesting Party wishes to be followed and the reasons therefore;
in the case of requests for the taking of evidence or search and seizure, a statement indicating the basis for belief that evidence may be found in the jurisdiction of the Requested Party, as well as a precise description of the place to be searched and the articles to be seized or the appropriate person to be asked to produce the evidence;
in the case of requests to take evidence from a person, a statement as to whether sworn or affirmed statements are required, a description of the subject matter of the evidence or statement sought, and a list of questions to be asked;
in the case of delivery of evidence, the person or class of persons who will have custody of the evidence, the place to which the evidence is to be removed, any tests to be conducted and the date, if any, by which the evidence will be returned;
in the case of making persons in custody available for giving evidence or assisting in investigations, the person or class of persons who will have custody during the transfer, the place to which the detained person is to be transferred and the date of that person’s return;
the court order, if any, sought to be enforced and a statement to the effect that it is a final order; and/or
information as to any allowances and/or expenses to which a person giving evidence or assisting in investigations in the Requesting Party would be entitled.
If the Requested Party considers that the information contained in the request is not sufficient in accordance with this Treaty to enable the request to be dealt with, that Party may request that additional details be furnished.
A request for assistance shall be in writing. However, in urgent circumstances, a request may be made by any means capable of producing a written record under conditions allowing the Requested Party to establish authenticity. In such cases the Requesting Party shall confirm the request in writing promptly thereafter unless the Requested Party agrees otherwise.
Article 6
Central Authorities
Each Party shall designate a Central Authority for transmitting and receiving requests under this Treaty. The Central Authority for Australia shall be the Commonwealth Attorney‑General’s Department; the Central Authority for Brazil shall be the Ministry of Justice.
Requests under this Treaty shall be made by the Central Authority of the Requesting Party to the Central Authority of the Requested Party. However, the Parties may at any time designate any other authority as a Central Authority for the purposes of this Treaty. Notification of such a designation will take place through diplomatic channels.
The Central Authorities shall communicate directly with each other, however this does not preclude communication through diplomatic channels.
Article 7
Limitation of use and Confidentiality
The Requested Party may require, after consultation with the Requesting Party, that information or evidence furnished or the source of such information or evidence be kept confidential or be disclosed or used only subject to such terms and conditions as it may specify.
The Requesting Party shall not disclose or use information or evidence furnished for purposes other than those stated in the request without the prior consent of the Central Authority of the Requested Party.
The Requested Party shall, to the extent requested, keep confidential a request, its contents, supporting documents and any action taken pursuant to the request except to the extent necessary to execute it or where the disclosure is specifically authorised by the Requesting Party in accordance with any terms and conditions it may specify.
Subject to paragraph 3 of this Article, if the request cannot be executed without breaching the confidentially requirements stated in the request, the Requested Party shall so inform the Requesting Party which shall then determine the extent to which it wishes the request to be executed.
Article 8
Certification and Authentication
Subject to paragraph 2, documents processed through the Central Authorities in accordance with this treaty shall be exempt from certification or authentication, unless otherwise required.
Insofar as not prohibited by the law of the Requested Party, documents, records or objects shall be provided in a form or accompanied by such certification as may be specified by the Requesting Party in order to make them admissible according to the law of the Requesting Party.
Article 9
Language
Requests and supporting documents shall be accompanied by a translation into the language of the Requested Party.
Article 10
Representation
Unless otherwise provided in this Treaty, the Requested Party shall make all necessary arrangements for the representation of the Requesting Party in any proceedings ari
This is an opening excerpt, not the complete document.
Confidentiality and limits on use. Article 7 allows the Requested Party to require confidentiality or conditional disclosure; the Requesting Party must not use or disclose information supplied for other purposes without prior consent of the Requested Party’s Central Authority, and must respect confidentiality requests except to the extent necessary to execute the request.
Evidence, witnesses and transfer. Articles 12-18 cover taking evidence, obtaining statements, allowing presence of officers or legal representatives during execution, making persons available to give evidence (Articles 16 and 17), temporary transfer of prisoners with consent, custody arrangements while transferred, and safe conduct rules that protect persons attending in the Requesting Party from prosecution for prior acts and from compelled testimony outside the scope of the request (Article 18).
Assets and forfeiture. Article 19 allows the Requested Party to search for proceeds or instruments of crime, take provisional measures, freeze, seize and confiscate as allowed by its law, and to give effect to a final order to confiscate or, where domestic law permits, to return or share confiscated property or proceeds from sale. The Article requires respect for bona fide third party rights and defines “proceeds of crime” and “instruments of crime”.
Operational mechanics. Article 3 requires prompt execution in accordance with the Requested Party’s law and, insofar as not prohibited by that law, in the manner required by the Requesting Party. It obliges the Requested Party to respond to reasonable inquiries on progress, to inform about significant delays, and to advise the Requesting Party of outcomes. Article 8 contains a default exemption from certification or authentication of documents processed through Central Authorities, but Article 8(2) permits provisioning of certification to make documents admissible under the law of the Requesting Party.
Final procedural points. Article 11 allocates costs: the Requested Party meets execution costs, except the Requesting Party bears expenses for conveying persons to or from the territory, escort officers, and fees of experts. Article 26 sets entry into force: Treaty enters into force 30 days after Parties notify each other in writing through diplomatic channel that their internal requirements for entry into force are fulfilled; termination occurs 180 days after written notice. Article 27 provides a consultation framework and diplomatic dispute settlement.
These concepts translate into specific administrative duties for the Central Authorities, evidentiary and procedural drafting obligations for requesting agencies, confidentiality and cost management obligations, and a set of refusal and postponement tests for the Requested Party to apply.
Private sector service providers and custodians of records. Banks, registries, public record offices and custodians of corporate or financial records may be required to produce documents under a request. Article 3(2) expressly allows execution of requests “regardless of bank secrecy” insofar as permitted by the Requested Party’s laws and procedures; the Requested Party may therefore choose to set aside bank secrecy constraints when executing a request. However, the exact effect will depend on the Requested Party’s domestic law and its exercise of discretion under Article 3.
Diplomatic and foreign service actors. Diplomatic channels remain available for transmission and dispute resolution. Article 6 allows designation of other Central Authorities with diplomatic notification. Article 27 enjoins consultation and provides for diplomatic channel resolution where Central Authorities cannot agree.
Who pays and who decides. Article 11 draws a specific cost line: the Requested Party bears execution costs (subject to consultation if extraordinary expenses arise), while the Requesting Party pays for travel of persons, escorting officers and experts. The Central Authorities decide acceptability of requests and whether conditions or refusals are necessary under Article 4 or Article 7.
Temporal scope. Article 24 makes clear the Treaty applies to any request after its entry into force even if the underlying acts or omissions occurred before that date. That expands the set of historical investigations that may rely on the Treaty once in force.
In short, the Treaty affects domestic prosecuting and investigative bodies, the Attorney‑General’s Department as Central Authority, custodians of records and property, persons targeted by or assisting investigations, and diplomatic channels used to resolve disputes or remit urgent requests.
Confidentiality and use restrictions. Article 7 allows the Requested Party to require confidentiality or conditional disclosure; the Requesting Party shall not use or disclose furnished information for other purposes without prior consent of the Requested Party’s Central Authority. The Requested Party shall keep requests and actions confidential to the extent requested, except as necessary to execute the request (Article 7).
Evidence handling and admissibility. Article 8 provides that documents processed through Central Authorities shall be exempt from certification or authentication unless required; Article 8(2) allows provision of certification where not prohibited to make records admissible under the Requesting Party’s law. Article 12 allows witnesses to decline to give evidence where that is permissible under the law of either Party (Article 12(6)) and Article 12(7) allows a written declaration from the Requesting Party regarding existence of a right to decline.
Safe conduct and limitations. Article 18 guarantees certain protections for persons attending in the territory of the Requesting Party pursuant to Articles 16 or 17: they shall not be detained, prosecuted or punished for acts preceding departure from the Requested Party, nor be required without consent to give evidence in proceedings other than that to which the request relates (Article 18(1)). These protections cease if the person does not leave within 30 consecutive days after official notification that attendance is no longer required (Article 18(2)), and there is no sanction for failing to appear unless the person returns voluntarily and fails to comply with later service (Article 18(3)).
Cost allocation rights and duties. Article 11 places primary cost responsibility for execution on the Requested Party, while the Requesting Party bears expenses associated with conveying persons to and from the Requested Party, escorting officers, and fees of experts. If extraordinary expenses are required, the Parties must consult to determine terms and conditions under which assistance may be provided.
Rights to return property and to enforce final orders. Article 19(3) provides that the Requested Party shall, to the extent permitted by its law, give effect to a Requesting Party’s final forfeiture order or take other action to secure proceeds and instruments of crime. Article 19(4) states the Party with custody of proceeds shall dispose of them according to its laws, and may, insofar as its laws permit and on appropriate terms, share or return confiscated property or proceeds less costs of assistance.
Diplomatic consultation and dispute settlement. Article 27 obliges prompt consultation at the request of either Party and requires that unresolved disputes be settled through diplomatic channels.
These duties and rights allocate substantive tasks to domestic agencies, impose specific content and form requirements on requests, provide conditional powers to refuse or impose conditions, and set out protections and cost sharing that will shape operational choices by both Requesting and Requested authorities.
Cost consequences as a practical enforcement tool. Article 11 allocates execution costs to the Requested Party and certain expenses to the Requesting Party. Where the Requested Party faces potentially extraordinary expenses, the Parties must consult to determine terms; this creates a practical negotiation lever , if the Requesting Party is unwilling to cover extraordinary costs, a request may be refused or delayed on resource grounds, consistent with Article 4(1)(j), which allows refusal where provision of assistance would impose an excessive burden.
Protections and limits on coercion. The Treaty sets procedural constraints that limit coercive enforcement steps across borders. For persons temporarily transferred to give evidence, the Requesting Party must hold a transferred person in custody if the person was required to be kept in custody under the law of the Requested Party (Article 17(2)). Persons attending pursuant to Article 16 or 17 benefit from safe conduct protections in Article 18; those protections constrain the ability of the Requesting Party to detain or prosecute such persons for pre‑departure acts, and to compel their testimony outside the scope of the request. Those are not criminal penalties in themselves but are limits on the enforcement power of the Requesting Party and inform operational risk allocation.
Diplomatic remedies. Where disagreements as to interpretation, application or implementation arise, Article 27(2) requires resolution through consultation by diplomatic channels if Central Authorities cannot reach agreement. That is the only express dispute settlement or enforcement route in the Treaty; it points to politically managed outcomes rather than adjudicative enforcement.
In summary, enforcement is exercised by Central Authorities and domestic judicial bodies using refusal, conditions, domestic execution processes and diplomatic consultation; the Treaty does not create new criminal penalties or a supranational enforcement regime.
Interaction with asset recovery regimes and final order enforcement. Article 19 contemplates giving effect to a foreign final confiscation order “to the extent permitted by its law”. Where domestic law provides for recognition and enforcement of foreign confiscation orders, Article 19 may be invoked to secure transfer or sharing of proceeds; where domestic law lacks such provisions, the Requested Party may still use provisional measures, freezing and seizure under its own law pending domestic proceedings. The Article balances cross‑border enforcement aims with domestic procedural safeguards and third party rights.
Overlap with other treaties and arrangements. Article 23 clarifies that the Treaty does not derogate from existing obligations under other treaties or arrangements, nor prevent the Parties from providing assistance under other instruments. Practically, this means pre‑existing MLA relationships, multilateral arrangements and domestic mechanisms remain available and may be preferred in particular cases if they offer easier or broader cooperation.
Evidence admissibility and domestic rules of evidence. Article 8(2) contemplates that documents may be supplied with certification to satisfy the Requesting Party’s admissibility rules “insofar as not prohibited by the law of the Requested Party”. This requires coordination between the Requesting Party’s evidentiary standards and the Requested Party’s procedures for certification and certification substitutes. Courts in the Requesting Party may still reject evidence that fails local evidentiary rules despite Treaty processing.
Service of process and domestic service rules. Article 20 permits service by mail or other manner required by the Requesting Party “which is not inconsistent with the law of the Requested Party”. Where domestic service rules require particular processes, the Requested Party must either effect service according to its law or decline if inconsistent. The 45 day advance request rule for appearance is a procedural compatibility requirement; urgent waivers are possible.
Translation obligations. Article 9 requires requests and supporting documents to be accompanied by a translation into the language of the Requested Party. For Australia requesting Brazil, that means Portuguese translations will be necessary. Similarly, Brazilian requests to Australia must be translated into English. Failure to provide translations may cause the Central Authority to request further information under Article 5(7).
Domestic administrative decisions and resource constraints. Article 4(1)(j) permits refusal where provision of assistance would impose an excessive burden on human or financial resources, subject to Article 11 which allocates ordinary execution costs to the Requested Party but imposes a consultation obligation for extraordinary expenses. Practitioners must be aware of how budgetary or resource constraints in the Requested Party can interact with legal minimum duties.
In summary, the Treaty sits alongside and within domestic legal regimes; its operation requires constant reconciliation with national statutory frameworks on criminal procedure, evidence, privacy, bank secrecy, assets, and service of process. The Requested Party’s municipal law will in many cases be the operational constraint that defines what assistance is legally and practically deliverable.
Certification and admissibility confusion. Article 8 provides that documents processed through Central Authorities are exempt from certification or authentication unless required. But Article 8(2) permits documents to be provided with certification where not prohibited to make them admissible under the law of the Requesting Party. The net effect is that some receiving courts may still require certification to meet local evidence rules; practitioners should plan to request any specific certification necessary for admissibility and be ready to provide it if the Requested Party’s law allows it.
Safe conduct limits and time‑bound protections. Article 18’s safe conduct protection applies only to acts or omissions preceding departure from the Requested Party and ceases if a person does not depart within 30 consecutive days after being officially notified that attendance is no longer required. Safe conduct does not protect against prosecution for acts occurring while in the Requesting Party. Practitioners should avoid assuming blanket immunity for transferred witnesses and should manage logistics to avoid inadvertent triggering of the 30 day lapse rule.
Service of documents timing. Article 20 requires requests to effect service of a document requiring appearance to be made not less than 45 days before the required appearance date, otherwise the Requested Party may decline unless the matter is urgent and a waiver is granted. Failure to observe that time frame risks refusal or last minute waivers.
Final order requirement for confiscation transfer. Article 19(3) and (4) make clear transfers or sharing of confiscated property are generally to be made on the basis of a final order, although the Requested Party may transfer earlier in accordance with its law. Practitioners seeking early transfer must plan for domestic procedural constraints and possible need for a final foreign order.
Confidentiality conditionality. Article 7 allows the Requested Party to impose confidentiality conditions and to require consultation before execution where confidentiality would otherwise be breached. Requests that involve covert techniques or sensitive sources may be limited or delayed by these conditions.
Presence and participation in foreign proceedings. Article 14 permits judges, officials, legal representatives and others to be present at execution of requests in the territory of the Requested Party to the extent permitted by the law of the Requested Party. That means the Requesting Party cannot assume a right to be present; the Requested Party’s domestic law will control.
No supranational enforcement; diplomatic resolution. Article 27 confines dispute settlement to consultation and diplomatic channels. If Central Authorities cannot agree, there is no Treaty arbitration or independent judicial enforcement mechanism. Expect resolution to involve bilateral negotiation rather than adjudicative remedies.
In brief, the Treaty contains many operational bells and whistles but places significant weight on domestic law and administrative discretion; practical success of requests depends on translation, evidential completeness, budgeting for costs and time, and careful drafting to address dual criminality and confidentiality concerns.
Timeframes and urgency
For service of documents requiring an appearance, submit the request at least 45 days before the appearance date per Article 20(2). If the matter is urgent, state urgency clearly and be prepared to justify a request for waiver.
Include any time limit within which compliance is desired as part of the request (Article 5(1)(e)). Use Article 3’s obligation to respond to progress inquiries to monitor execution.
Confidentiality and conditions
If confidentiality is required, state the need and reasons in the request (Article 5(1)(d)) and be prepared to accept conditions imposed by the Requested Party per Article 4(3) and Article 7. The Requested Party may require consultation before execution where confidentiality prevents execution without breach (Article 7(4)).
Dual criminality and legal basis
Draft the factual narrative to describe the totality of acts and omissions rather than relying solely on domestic offence labels, because Article 4(1)(g) treats dual criminality by reference to conduct rather than terminology. Provide the applicable law in the Requesting Party and explain how the conduct maps to offences recognised in the Requested Party where possible.
Financial and logistical planning
Budget for expenses the Requesting Party must bear under Article 11: travel costs for persons moved to testify, expenses for escorting or custodial officers, and fees for experts. If a request will require extraordinary expenses, initiate consultation under Article 11(2) early.
For transfer requests under Article 17, provide details of custody arrangements, return date and assurances of security as requested in Article 16 and Article 17(1).
Witness and privilege declarations
Where a witness may claim a right to decline to give evidence, seek a written declaration from your Central Authority regarding the existence of that right to provide to the Requested Party per Article 12(7). Anticipate contestation of privilege issues and provide legal authority for any compulsory questioning sought.
Asset tracing and confiscation requests
For asset tracing requests under Article 19(1), specify the factual basis for belief that proceeds or instruments of crime are located in the Requested Party. Provide a copy of any final forfeiture order if seeking transfer or sharing per Article 19(3) and (4). Be prepared to provide certified translations and to negotiate terms for sharing or return, recognising the Requested Party will act “to the extent permitted by its law”.
Service and execution mechanics
If service of process is requested, ensure compliance with Article 20: request service at least 45 days before required appearance, specify the preferred means of service and provide required documents; if requesting service in a manner aligning with the Requesting Party’s laws, ensure the method is not inconsistent with the Requested Party’s law.
Evidence handling and admissibility
Specify whether sworn or affirmed evidence is required, give lists of questions and provide details about the custody, testing and return of physical evidence per Article 5(2)(e) and Article 15. Where admissibility in the Requesting Party requires specific certification, request the Requested Party to provide certification insofar as its law permits per Article 8(2).
Follow up and liaison
Use Article 3’s express rights to receive progress updates and information on delays. Maintain direct communication between Central Authorities and be prepared to supply additional information rapidly if the Requested Party requests supplementation under Article 5(7).
Contingency planning for refusal or postponement
Anticipate possible refusal grounds in Article 4 and prepare alternative strategies: seek limited or conditional assistance consistent with Article 4(3), offer assurances to mitigate sovereignty or public order concerns, and be prepared to cover extraordinary costs where budgetary constraint would otherwise lead to refusal under Article 4(1)(j).
Diplomatic escalation
If you encounter interpretive or implementation disputes the Central Authorities cannot resolve, use Article 27’s diplomatic consultation mechanism. Because Article 27 confines dispute resolution to diplomatic channels, document your legal and factual positions thoroughly for Central Authority negotiation.
Record keeping and chain of custody
Keep meticulous records of transmission, receipt, translations, conditions imposed, and evidence handling to satisfy both treaty requirements and domestic chain of custody and disclosure obligations in the Requesting Party.
Following these steps will align a request with the Treaty’s content and procedural requirements, reduce the risk of delay or refusal, and prepare the Requesting Party to meet obligations with respect to translations, costs, confidentiality and admissibility. The central practical principle is to draft requests that are complete, factual, translated, budgeted and cognisant of the Requested Party’s domestic law constraints.