Mutual Assistance in Criminal Matters (French Republic) Regulations

The Mutual Assistance in Criminal Matters (French Republic) Regulations (Statutory Rules 1994 No. 331) give domestic legal effect in Australia to the bilateral treaty on mutual assistance in criminal matters executed between Australia and the French Republic. The treaty was signed in Paris on 14 January 1993 by Gareth Evans for Australia and Roland Dumas for the French Republic. These regulations, made by the Governor-General under the authority of the Mutual Assistance in Criminal Matters Act 1987 (the Act), commenced on 1 May 1994. Mechanically, the regulations apply the Act (excluding Part VIA) to the French Republic subject to the specific limitations, conditions, exceptions, and qualifications set out in the treaty, while explicitly applying Part VIA of the Act to the French Republic without such treaty-based limitations.

The primary operational purpose of this regulatory framework is to establish an official, structured channel through which Australia and France can assist each other in criminal investigations and prosecutions. Under Article 1(1) of the treaty, the two countries commit to providing each other with the widest measure of mutual assistance regarding criminal offences that fall within the jurisdiction of the requesting state's judicial authorities at the time of the request. However, the scope of this assistance is subject to explicit exclusions. Under Article 1(2), the treaty does not apply to the execution of arrest warrants, the enforcement of criminal judgments (with the critical exception of measures taken under Article 15 to seize or confiscate the proceeds of crime), or military law offences that do not constitute offences under ordinary criminal law. By repealing the previous Mutual Assistance in Criminal Matters (France) Regulations (Statutory Rules 1991 No. 400), this instrument modernized the cooperative administrative mechanisms between the two nations, providing clearer rules on the serving of judicial documents, the taking of evidence, search and seizure, and the forfeiture of illicit assets.

View image in the official source

Statutory Rules 1994 No. 331

__________________

Mutual Assistance in Criminal Matters (French Republic) Regulations

I, The Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Mutual Assistance in Criminal Matters Act 1987.

Dated 4 March 1994.

BILL HAYDEN

Governor-General

By His Excellency’s Command,

M. LAVARCH

Attorney-General

____________

Citation

These Regulations may be cited as the Mutual Assistance in Criminal Matters (French Republic) Regulations.

Commencement

These Regulations commence on 1 May 1994.

Interpretation

In these Regulations, unless the contrary intention appears:

“the Act” means the Mutual Assistance in Criminal Matters Act 1987.

Application of the Act

(1) The Act (other than Part VIA) applies to the French Republic subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to the Treaty between Australia and the French Republic on Mutual Assistance in Criminal Matters done at Paris in France on 14 January 1993.

(2) A copy of the English text of the Treaty is set out in the Schedule.

(3) Part VIA of the Act applies to the French Republic.

Repeal of Mutual Assistance in Criminal Matters (France) Regulations

Statutory Rules 1991 No. 400 are repealed.

SCHEDULE Regulation 4

TREATY BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF THE FRENCH REPUBLIC ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS

The Government of Australia and

The Government of the French Republic

DESIRING to conclude a treaty on mutual assistance in criminal matters

HAVE AGREED as follows:

ARTICLE 1

SCOPE OF APPLICATION

The contracting Parties undertake to afford each other, in accordance with the provisions of this Treaty, the widest measure of mutual assistance in investigations or proceedings in respect of criminal offences the punishment of which, at the time of the request for assistance, falls within the jurisdiction of the judicial authorities of the Requesting State.
This Treaty does not apply to:

(a) the execution of arrest warrants;

(b) the enforcement of criminal judgments, except for measures taken pursuant to Article 15 of this Treaty to seize or confiscate proceeds of crime; or

ARTICLE 2

CENTRAL OFFICES

The contracting Parties shall each appoint a Central Office to transmit and receive requests for the purpose of this Treaty. The Central Office of Australia shall be the Attorney‑General’s Department, Canberra, and the Central Office of France shall be the Ministère de la Justice. Each contracting Party shall notify the other of any change of its Central Office.
Requests for assistance shall be made through the Central Offices which shall arrange for the prompt carrying out of such requests.

ARTICLE 3

OTHER ASSISTANCE

The provisions of this Treaty do not affect any obligations assumed by the contracting Parties under multilateral judicial assistance conventions to which both are party.

ARTICLE 4

COMPETENT AUTHORITIES

The competent authorities are, in Australia, the judicial authorities, the public prosecutors, the authorities responsible for investigations and proceedings related to criminal matters, the Attorney‑General or his delegate and in France, the judicial authorities, including the Ministère Public.
A request from Australia which does not emanate from a judicial authority shall bear the signature of the Attorney‑General or his delegate.

ARTICLE 5

REQUESTS FOR ASSISTANCE

The Requested Party shall, in accordance with its law, execute any requests relating to a criminal matter and addressed to it by the competent authorities of the Requesting Party for the purpose of investigation, procuring evidence or transmitting articles to be produced in evidence, records or documents, including documents of government agencies.
If expressly required by the Requesting Party, the Requested Party shall give notice of the date and place of execution of the request.
If the Requested Party consents, officials and interested persons of the Requesting State may be present at the examination of witnesses and, where appropriate, at the execution of other requests, and, to the extent that the laws of the Requested State allow, may question the witnesses or have them questioned.

ARTICLE 6

PARTICULAR PROCEDURE

If the Requesting Party expressly states a wish that a request described in the preceding article be executed in a certain manner, the Requested Party shall comply with that wish to the extent that its law allows. In particular, the Requesting Party may ask that the execution of a request be carried out by a judicial authority or that witnesses or experts give evidence on oath.

ARTICLE 7

REFUSAL TO GIVE EVIDENCE

A person who is required to give evidence in the Requested State may decline to give evidence where either:

(a) the law of the Requested State permits that witness to decline to give evidence in similar circumstances in proceedings in its territory; or

(b) the law of the Requesting State in similar circumstances permits that witness to decline to give evidence in such proceedings in its territory.

If any person claims that there is a right to decline to give evidence under the law of the Requesting State, the Central Office of that State shall, upon request, provide a certificate to the Central Office of the Requested State as to the existence of that right. In the absence of evidence to the contrary, the certificate shall provide sufficient evidence as to the existence of that right.

ARTICLE 8

HANDING OVER OF PROPERTY, RECORDS AND DOCUMENTS

The Requested Party may delay the handing over of any property, records or documents requested, if it requires the said property, records or documents in connection with pending criminal proceedings. In that event, the Requested Party shall, upon request from the Requesting Party and whenever possible, provide certified copies of documents.
Any property, as well as original records or documents, handed over in execution of requests shall be returned by the Requesting Party to the Requested Party as soon as possible unless the latter Party waives their return.

ARTICLE 9

SERVICE OF JUDICIAL DOCUMENTS

The Requested Party shall, in conformity with its law, effect service of judicial 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 45 days before the date on which the appearance is required. In urgent cases, the Requested Party may waive this requirement.
Service may be effected by simple transmission of the writ or record to the person to be served. If the Requesting Party expressly so requests, service shall be effected by the Requested Party, to the extent permitted by its law, in the manner requested by the Requesting Party.
The Requested Party shall forward to the Requesting Party proof of service of the documents, setting forth the facts, the method and the date of service; where appropriate this may be in the form of a receipt dated and signed by the person served. If service cannot be effected, the Requesting Party shall be so informed without delay and advised of the reasons.

ARTICLE 10

APPEARANCE OF WITNESSES OR EXPERTS

If the Requesting Party considers the personal appearance of a witness or expert before the competent authorities necessary in order to give evidence in a criminal matter, it shall so mention in its request for service of the summons, or in its request for assistance with investigations relating to a criminal matter, and the Requested Party shall so inform the witness or expert. The Requested Party shall advise the Requesting Party of the reply given by the witness or expert.
In the case provided for under paragraph 1 of this Article the request or the summons shall indicate the approximate allowances payable and the travelling and living expenses refundable.
Upon request, the witness may receive, through the consular authorities of the Requesting Party, an advance to cover part or the whole of his or her travelling costs.

ARTICLE 11

AVAILABILITY OF PERSONS IN CUSTODY TO GIVE EVIDENCE OR ASSIST INVESTIGATIONS

A person in custody in the Requested State may, at the request of the Requesting Party, be temporarily transferred to the Requesting State to give evidence, or assist in investigations, in relation to a criminal matter.
The Requested Party shall not transfer a person in custody to the Requesting State unless the person consents to that transfer.
While the person transferred is required to be held in custody under the law of the Requested State, the Requesting Party shall hold that person in custody and shall return that person in custody to the Requested State as soon as that person’s presence is no longer required in the Requesting State or at such earlier time as is specified by the Requested Party at the time of granting the request.
Where the Requested Party so requests, the person’s custody in the Requesting State shall cease, to the extent that it is based on the law of the Requested State, and such a person shall be treated as a person entitled to receive the allowances payable and expenses refundable under Article 10.

ARTICLE 12

SAFE CONDUCT

Where a person is in the Requesting State pursuant to a request made under Articles 10 or 11:

(a) that person shall not be prosecuted, detained, or subjected to any other restriction of personal liberty in the territory of the Requesting State, for any acts or convictions which preceded the person’s departure from the Requested State; and

(b) that person shall not be compelled to give evidence in any proceeding other than the proceeding to which the request relates.

An accused or suspected person present in the Requesting State in answer to a document served by the Requested Party pursuant to this Treaty seeking that person’s attendance to answer for acts or omissions which form the basis of investigations or proceedings against that person, shall not be prosecuted, detained or subjected to any other restriction of personal liberty in the Requesting State for acts or omissions which preceded that person’s departure from the Requested State other than those specified in the document seeking the person’s attendance.
The immunities provided for in this Article shall cease to apply if the person, being free to leave, has not left the Requesting State within a period of 45 consecutive days after that person has been officially notified that that person’s presence is no longer necessary or, having left, has returned.

ARTICLE 13

FAILURE OF WITNESS OR EXPERT TO APPEAR

A witness or expert who has failed to answer a summons to appear, service of which has been requested or effected pursuant to this Treaty, shall not, even if the summons contains a notice of penalty, be subjected to any punishment or measure of restraint, unless subsequently he voluntarily enters the territory of the Requesting State and is there again duly summoned and fails to comply.

ARTICLE 14

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 Article 20, paragraph 1, if any, would justify such action under the law of the Requested State.
The Requested Party shall supply to the Requesting Party the information requested by that Party concerning the result of any search, the place of seizure, the circumstances 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.

ARTICLE 15

PROCEEDS OF AN OFFENCE

At the request of the Requesting Party and in accordance with this Treaty, the Requested Party shall take the necessary measures to ascertain if any proceeds from an offence which could subsequently be subject to confiscation according to the law of the Requested State, are on the territory within its jurisdiction and it shall inform the Requesting Party of the results of its enquiry. When presenting its request, the Requesting Party shall inform the Requested Party of the grounds it has for believing that the said proceeds are on its territory.
To the sole extent allowed by its law and without prejudice to the rights of any third party:

(a) if, pursuant to paragraph 1 of this Article, any proceeds suspected of being the result of an offence, are found, the Requested Party may, on request from the Requesting Party, take the necessary protective measures to ensure their possible confiscation;

(b) the Requested Party, at the request of the Requesting Party, may give effect to any final legal determination given in the Requesting State confiscating the proceeds of an offence.

Requests to be presented pursuant to paragraph 2 may be the subject of prior consultations between the Central Offices.
The Requested State shall retain the property referred to in paragraph 2(b). Any proceeds of crime confiscated in the Requested State pursuant to a request under paragraph 2(b) of this Article shall vest in the Requested State.

ARTICLE 16

REFUSAL OF ASSISTANCE

Assistance may be refused if:

(a) the request relates to an offence where the conduct constituting that offence would not constitute in the Requested State, a criminal offence if that conduct had taken place within the territory under its jurisdiction;

(b) the request relates to an offence that is regarded by the Requested Party as an offence of a political character;

(c) there are substantial grounds for believing that the request for assistance has been made for the purpose of prosecuting or punishing a person on account of that person’s race, sex, religion, nationality or political opinions or that that person’s position may be prejudiced for any of these reasons;

(d) the request relates to an offence against a law relating to taxation, customs duties or foreign exchange controls;

(e) the request relates to an offence in respect of which the offender has been acquitted or pardoned or has served the sentence imposed;

(f) the request relates to an offence which, according to the law of either State, could, if committed there, be no longer the subject of prosecution by reason of lapse of time or any other reason;

(g) the request relates to an offence which is committed outside the territory of the Requesting State and the law of the Requested State does not provide for the prosecution of an offence of the same nature committed outside its territory;

(h) provision of the assistance sought could prejudice an investigation or proceeding in the Requested State;

(i) the Requested Party is of the opinion that the execution of the request would prejudice its sovereignty, security, ordre public, national interest or other essential interests.

Where in conformity with this Treaty a request may be refused, the Requested Party shall, before notifying its refusal, consider whether assistance may be granted subject to such conditions as it deems necessary. If the Requesting Party accepts assistance subject to conditions, it shall comply with those conditions.

ARTICLE 17

CONTENTS OF REQUESTS

Requests for assistance shall include the following information:

(a) the authority on whose behalf the request is made;

(b) the objects of, and reasons for, the request;

(c) except in cases of request for service of documents, a summary description of the facts constituting the offence and a statement of the relevant law;

(d) where possible the identity, location and nationality of any person concerned;

(e) a description of the assistance sought including, where appropriate, details of the information or evidence sought, and in particular any documents, records or articles to be produced or any questions to be put to witnesses or to experts; and

(f) details of any particular procedure that the Requesting Party wishes to be followed.

Where appropriate the Requesting Party may indicate any time limit within which the assistance must be provided.

ARTICLE 18

CONFIDENTIALITY

If so requested, each contracting Party shall endeavour, to the extent permitted by its law, to keep confidential requests for assistance and responses thereto.
If, at the time of providing material in response to the request, the Requested Party so requests, the Requesting Party shall not use the information or evidence obtained, nor anything derived from either, for purposes other than those stated in the request without the prior consent of the Requested Party.

ARTICLE 19

LANGUAGES

Translation of requests and annexed documents shall not be required.

ARTICLE 20

RESPONSE TO REQUESTS

If the Requested Party considers that the information contained in a request is not sufficient to enable the request to be dealt with in accordance with this Treaty, it may request additional information.
The Central Office of the Requested Party shall, as soon as possible, inform the Requesting Party of any circumstances, when they become known to that Central Office, which are likely to cause a significant delay in responding to the request.
The Central Office of the Requested Party shall as soon as possible inform the Requesting Party of any decision not to comply in whole or in part with a request for assistance and the reason for that decision.

ARTICLE 21

CERTIFICATION AND AUTHENTICATION

Documents or materials supporting a request for assistance pursuant to Article 15 of this Treaty shall be authenticated in accordance with paragraph 3 of this Article.
If requested by the Requesting Party documents or materials furnished by the Requested Party shall be similarly authenticated.
Documents and materials are duly authenticated for the purposes of this Treaty if they purport to be signed or certified by a Judge, Magistrate or officer in or of the sending State and to bear an official seal used in the sending State. However, where the documents are bound and sealed, a Judge, Magistrate or officer in or of the sending State need only sign or certify the first and last pages of the bound documents.

ARTICLE 22

REPRESENTATION AND EXPENSES

To the extent permitted by laws of the Requested State, 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.
The Requested Party shall meet the cost of fulfilling the request for assistance except that the Requesting Party shall bear:

(a) the travelling expenses of a person to and from the territory of the Requested State, and any allowances or expenses payable to that person whilst in the Requesting State;

(b) the expenses associated with conveying custodial or escorting officers; and

If it appears that the execution of the request involves or is likely to involve exceptional expenses, the two Parties shall consult with a view to determining the conditions according to which the execution of the request may be pursued.

ARTICLE 23

CONSULTATION

The two Parties shall consult, at the request of either, concerning the interpretation and the application of this Treaty.

ARTICLE 24

ENTRY INTO FORCE AND TERMINATION

Each contracting Party shall notify the other of the completion of the procedures required for the entry into force of this Treaty. This Treaty shall enter into force on the first day of the second month following the date of receipt of the last of these notifications.
Each contracting Party may terminate this Treaty at any time by forwarding through the diplomatic channel written notice of termination; termination shall take effect six months after receipt of this notification.

IN WITNESS WHEREOF, the undersigned, being duly authorised thereto by their respective Governments, have signed this treaty.

DONE AT Paris on the fourteenth day of January nineteen hundred and ninety three in English and French, both texts being equally authentic.

GARETH EVANSFOR THE GOVERNMENT OF AUSTRALIA	ROLAND DUMASFOR THE GOVERNMENT OF THE FRENCH REPUBLIC

_________________________________________________

NOTE

Note: 1. Notified in the Commonwealth of Australia Gazette on 11 March 1994.

1 Mutual Assistance in Criminal Matters (French Republic) Regulations

Statutory Rules 1994 No. 331

__________________

Mutual Assistance in Criminal Matters (French Republic) Regulations

Dated 4 March 1994.

BILL HAYDEN

Governor-General

By His Excellency’s Command,

M. LAVARCH

Attorney-General

____________

Citation

These Regulations may be cited as the Mutual Assistance in Criminal Matters (French Republic) Regulations.

Commencement

These Regulations commence on 1 May 1994.

Interpretation

In these Regulations, unless the contrary intention appears:

“the Act” means the Mutual Assistance in Criminal Matters Act 1987.

Application of the Act

(1) The Act (other than Part VIA) applies to the French Republic subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to the Treaty between Australia and the French Republic on Mutual Assistance in Criminal Matters done at Paris in France on 14 January 1993.

(2) A copy of the English text of the Treaty is set out in the Schedule.

(3) Part VIA of the Act applies to the French Republic.

Repeal of Mutual Assistance in Criminal Matters (France) Regulations

Statutory Rules 1991 No. 400 are repealed.

SCHEDULE Regulation 4

TREATY BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF THE FRENCH REPUBLIC ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS

The Government of Australia and

The Government of the French Republic

DESIRING to conclude a treaty on mutual assistance in criminal matters

HAVE AGREED as follows:

ARTICLE 1

SCOPE OF APPLICATION

The contracting Parties undertake to afford each other, in accordance with the provisions of this Treaty, the widest measure of mutual assistance in investigations or proceedings in respect of criminal offences the punishment of which, at the time of the request for assistance, falls within the jurisdiction of the judicial authorities of the Requesting State.

Several distinct legal and administrative concepts form the structural backbone of these regulations and the scheduled treaty:

Central Offices: Rather than relying on unstructured diplomatic channels, Article 2 establishes a single direct point of contact for each state. For Australia, the designated Central Office is the Attorney-General's Department in Canberra; for France, it is the Ministère de la Justice. These central agencies are responsible for transmitting, receiving, and arranging the prompt execution of all requests.
Competent Authorities: Article 4 defines which state actors can initiate or interact with requests. In Australia, these include judicial authorities, public prosecutors, authorities responsible for criminal investigations and proceedings, and the Attorney-General or their delegate. In France, they comprise judicial authorities, including the Ministère Public.
Double Criminality: Under Article 16(1)(a), the Requested Party may refuse assistance if the conduct underlying the request would not constitute a criminal offence had it occurred within the territory of the Requested Party. This concept ensures that neither state is forced to deploy its coercive legal machinery to assist in prosecuting conduct that its own parliament or legal system does not deem criminal.
Safe Conduct: Designed to facilitate the cooperation of witnesses and experts, Article 12 provides temporary immunity from prosecution, detention, or liberty restrictions in the Requesting State for acts or convictions that occurred prior to the person's departure from the Requested State.
Ordre Public and Essential Interests: Under Article 16(1)(i), a state may refuse assistance if it determines that executing the request would prejudice its sovereignty, security, ordre public (public order), national interest, or other essential interests. This concept serves as a sovereign safety valve, allowing the refusal of assistance where compliance would conflict with fundamental national policy.
Proceeds of Crime Vesting: Under Article 15(4), when one state successfully requests the other to confiscate the proceeds of an offence, the physical or monetary assets confiscated do not return to the victim or the Requesting State; instead, they vest entirely in the Requested State that carried out the confiscation.

The operational mechanics of these regulations directly affect several distinct groups of public and private actors:

Government Agencies and Central Administrators: The Attorney-General's Department in Canberra and the Ministère de la Justice in France bear the administrative costs and processing burdens of managing international requests. These departments must assess incoming requests for compliance with treaty requirements, translate or process documents, and coordinate with domestic law enforcement and judicial bodies.
Judicial Authorities, Prosecutors, and Investigators: Australian and French magistrates, judges, public prosecutors, and police officers are affected because the treaty provides them with an expanded, structured toolkit to gather cross-border evidence, execute searches (Art 14), and freeze assets (Art 15). Conversely, they must dedicate resources to executing reciprocal requests sent by their foreign counterparts.
Witnesses and Experts: Individuals located in one state whose evidence is sought by another state are directly affected. Under Article 10, they may be requested to travel internationally to give evidence, subject to receiving travel advances via consular channels. Under Article 7, they gain specific rights to decline to give evidence if either country's laws permit a refusal in similar domestic proceedings.
Persons in Custody: Prisoners in either country can be temporarily transferred to the other state to assist in investigations or give evidence under Article 11, provided they consent and the requesting state maintains their physical custody.
Accused Persons and Suspected Offenders: Individuals subject to criminal investigations face the prospect of cross-border search and seizure operations (Art 14) and the freezing or permanent confiscation of their assets (Art 15).
Third Parties: Independent individuals or businesses who hold property or interests that are suspected of being the proceeds of crime are affected by asset tracking and protective measures, though Article 15(2) explicitly states that such measures must be taken "without prejudice to the rights of any third party."

The treaty creates a balanced matrix of reciprocal duties and individual rights that govern how mutual assistance is executed:

Duty to Execute Requests: Under Article 5(1), the Requested Party has a general duty to execute requests for investigations, procuring evidence, or transmitting documents in accordance with its domestic laws. This is matched by a duty under Article 6 to execute the request in a specific manner (such as taking evidence on oath) if explicitly requested, provided domestic law allows.
Duty to Return Property: Under Article 8(2), the Requesting Party is under a strict duty to return any property, original records, or documents handed over in execution of a request as soon as possible, unless the Requested Party explicitly waives this return.
Duty of Safe Custody and Return of Prisoners: If a person in custody is transferred under Article 11, the Requesting State has a duty to keep that person in custody and return them as soon as their presence is no longer required, or at an earlier time specified by the transferring state (Art 11(3)).
Duty to Pay Expenses: While the Requested Party generally meets the local costs of fulfilling a request, the Requesting Party has a duty under Article 22(2) to bear the travel expenses and allowances of witnesses, the costs of escorting custodial officers, and the fees of experts.
Right of Witness Refusal: A witness required to give evidence under the treaty has a dual-system right under Article 7(1) to decline to answer questions if either the law of the Requested State or the law of the Requesting State permits a refusal in equivalent domestic proceedings.
Right of Safe Conduct: A witness or expert who enters the Requesting State pursuant to a request has a right under Article 12(1) not to be prosecuted, detained, or restricted in their personal liberty for prior acts or convictions. This safe conduct right is subject to a temporal limitation: it expires if the person remains in the Requesting State for more than 45 consecutive days after being officially notified that their presence is no longer necessary (Art 12(3)).
Right of Consent for Custodial Transfer: Under Article 11(2), a person in custody cannot be transferred to the other state unless they explicitly consent to the transfer.

The enforcement mechanisms of the treaty do not establish independent domestic criminal penalties within the regulations themselves; instead, they rely on the coercive powers available under the domestic laws of the state executing the request:

Search and Seizure Enforcement: Under Article 14, requests for search, seizure, and delivery of material are executed by the Requested Party "insofar as its law permits." The execution is contingent on whether the information supplied by the Requesting State would justify such coercive enforcement action under the domestic laws of the country where the search is to take place.
Enforcement of Confiscation Orders: Under Article 15(2)(b), the Requested Party may enforce a final legal determination of confiscation made by a court in the Requesting State. This allows French asset-forfeiture orders to be enforced against property located in Australia using Australian domestic enforcement machinery, and vice versa.
The Witness Compulsion Exception: A key enforcement limitation is established under Article 13. A witness or expert who fails to answer a summons to appear, even if that summons contains an explicit notice of a penalty, cannot be subjected to any punishment or measure of restraint by the state where they reside. They can only be penalized if they subsequently enter the territory of the Requesting State voluntarily, are duly summoned there again, and fail to comply a second time.
Asset Protective Measures: Under Article 15(2)(a), at the request of the Requesting Party, the Requested Party may take "necessary protective measures" to ensure the possible confiscation of suspected proceeds of crime. This allows for the freezing or restraining of assets before a final confiscation order is issued, preventing the dissipation of funds during an ongoing investigation.

The regulations and the scheduled treaty operate in tandem with domestic statutory frameworks and international conventions:

The Mutual Assistance in Criminal Matters Act 1987: This is the parent Act. Under Regulation 4(1), the Act (excluding Part VIA) is applied to France subject to the limitations, conditions, exceptions, or qualifications necessary to give effect to the 1993 Treaty. Conversely, Regulation 4(3) mandates that Part VIA of the Act (which governs modern evidence-gathering techniques such as live video links) applies to France without being restricted by these treaty limitations.
Multilateral Conventions: Article 3 preserves the operation of other international instruments. It explicitly states that the treaty does not affect any obligations assumed by Australia or France under multilateral judicial assistance conventions to which both nations are party. This ensures that broader global treaties (for instance, UN conventions addressing narcotics or corruption) remain operational alongside this bilateral agreement.
Domestic Procedural Laws: The treaty constantly defers to the domestic procedural and constitutional laws of the executing state. For example, the execution of requests under Article 5(1) must be "in conformity with its law." Similarly, the service of judicial documents under Article 9(1) and the execution of search and seizure under Article 14(1) must comply with the domestic legal standards of the state where the action occurs.
Statutes of Limitations: Under Article 16(1)(f), assistance may be refused if the request relates to an offence which, under the law of either Australia or France, can no longer be prosecuted due to the lapse of time or any other reason. This requires an assessment of both Australian and French limitation statutes before assistance can be safely rendered.

The legislative and administrative history of these regulations is concise but structurally significant. The regulations were formally executed on 4 March 1994 by Governor-General Bill Hayden under the authority of the Federal Executive Council, with the ministerial command of Attorney-General Michael Lavarch. The regulations were subsequently notified in the Commonwealth of Australia Gazette on 11 March 1994, and they officially commenced on 1 May 1994.

Under Regulation 5, this instrument repealed the Mutual Assistance in Criminal Matters (France) Regulations, which were registered as Statutory Rules 1991 No. 400. This repeal marked a complete structural transition. The 1991 regulations had governed the initial bilateral assistance arrangements, but they were superseded by the 1994 regulations to give domestic effect to the newly negotiated and signed Treaty of 14 January 1993.

The text of the scheduled treaty itself contains its own amendment and termination mechanisms. Under Article 24(1), the treaty entered into force on the first day of the second month following the date on which both parties notified each other that their respective domestic procedures for entry into force had been completed. Under Article 24(2), either party can terminate the treaty at any time by sending written notice through diplomatic channels. In such an event, the treaty terminates six months after the receipt of the written notice. The source text does not record any subsequent amendments to the 1994 regulations.

The source text of this statutory instrument does not cite or reference any specific judicial decisions or litigation history. Because the text does not name any cases, no specific domestic or international court decisions can be factually detailed or listed here.

In a broader structural context, litigation involving mutual assistance regulations typically arises in domestic courts when affected individuals challenge the validity of search warrants issued under Article 14, or contest the restraining of assets under Article 15. In such hypothetical disputes, litigation generally focuses on whether the requesting state provided sufficient information to meet the domestic evidentiary thresholds of the requested state, or whether the double criminality requirement under Article 16(1)(a) was satisfied.

Furthermore, under the terms of the treaty itself, disputes regarding interpretation or application do not proceed to formal international litigation or arbitration. Instead, Article 23 mandates a non-judicial dispute resolution mechanism: the two nations must consult with each other at the request of either party to resolve any disagreements regarding how the treaty is interpreted or applied. This prioritizes diplomatic and administrative consensus over adversarial courtroom litigation between the sovereign parties.

Practitioners and compliance professionals operating under this framework should be aware of several procedural and structural "gotchas" embedded in the text of the treaty:

The Translation Waiver: Under Article 19, the treaty explicitly states: "Translation of requests and annexed documents shall not be required." While this reduces the initial administrative burden on the Requesting State, it places a hidden operational and cost burden on the Requested State, which must perform any necessary translations internally before its domestic authorities can execute the request. This can lead to unpredictable delays in execution as documents wind through internal government translation services.
Asset Vesting Windfall: Under Article 15(4), any proceeds of crime confiscated in the Requested State pursuant to a request vest entirely in the Requested State, not the Requesting State. This creates an asymmetric economic incentive structure. While one country may expend significant investigative resources to track and prosecute an offender, the financial windfall of the forfeited assets is retained by the country where the assets happened to be located and seized.
The 45-Day Service Rule: Under Article 9(2), any request to serve a document requiring a person to appear in court must be delivered to the Requested Party at least 45 days before the scheduled appearance date. While the Requested Party can waive this requirement in urgent cases, failure to meet this timeline gives the executing state a straightforward procedural ground to refuse or delay service.
Unpunishable Summons Disobedience: Under Article 13, a witness who refuses to obey a summons served under the treaty cannot be penalized or restricted in their liberty by their home state, even if the foreign summons explicitly contains a penalty notice. The foreign state's penal power over that witness remains entirely dormant unless the witness voluntarily steps back onto its territory.
The Double-Edged Statute of Limitations: Under Article 16(1)(f), a request can be refused if the prosecution would be barred by a lapse of time under the law of either State. This means that even if Australia has no statute of limitations for a particular offence, an Australian request to France can be blocked if French law imposes a limitation period that has expired.

For legal practitioners, government officials, and corporate entities, compliance with this mutual assistance regime requires strict adherence to the formal pathways set out in the treaty:

Formulating Requests (For Requesting Authorities): Every request must originate from or be routed through the designated Central Office (the Attorney-General's Department for Australia, or the Ministère de la Justice for France). Under Article 17(1), the request must explicitly contain:
- The identity of the authority making the request;
- The precise objects and reasons for the request;
- A summary description of the facts constituting the offence and a statement of the relevant law (except for simple requests for service of documents);
- The identity, location, and nationality of any target individuals where possible;
- A precise description of the assistance sought (including specific questions to be put to witnesses or experts); and
- Details of any specific procedure or manner of execution desired under Article 6 (such as taking evidence on oath).
Signing Non-Judicial Requests: If an Australian request does not originate from a court or judicial officer, it must bear the physical signature of the federal Attorney-General or their designated delegate, as required by Article 4(2).
Authenticating Documents for Asset Confiscation: When submitting supporting documents for search, seizure, or asset confiscation under Article 15, practitioners must ensure the documents are authenticated in accordance with Article 21. This requires the documents to be signed or certified by a judge, magistrate, or officer of the sending state, and to bear an official seal. If the documents are bound and sealed, the officer only needs to sign or certify the first and last pages.
Advising Witnesses on Privileges: If representing a witness called to give evidence, practitioners must analyze the domestic laws of both France and Australia. Under Article 7, if a privilege or right to decline to give evidence exists under either country's laws, the witness can assert it. If asserting a right under the Requesting State's law, practitioners should request that the Requesting State's Central Office issue a certificate under Article 7(2) to prove the existence of that right to the executing court.

Mutual Assistance in Criminal Matters (French Republic) Regulations

Plain English Summary

Deep Dive

What it does

Current sections

Mutual Assistance in Criminal Matters (French Republic) Regulations

Source text: opening excerpt

1 Mutual Assistance in Criminal Matters (French Republic) Regulations

Main concepts

Who it affects

Key duties and rights

Penalties and enforcement

How it interacts with other laws

Amendment history

Litigation history

Gotchas

How to comply