Mutual Assistance in Criminal Matters (Money-Laundering Convention) Regulations 1997

These Regulations (Mutual Assistance in Criminal Matters (Money‑Laundering Convention) Regulations 1997) give domestic effect, for the purposes of the Mutual Assistance in Criminal Matters Act 1987, to the 1990 Council of Europe Convention on laundering, search, seizure and confiscation of the proceeds from crime (the Money‑Laundering Convention), by (a) specifying the Convention text as a schedule to the Regulations, (b) recording Australia’s instrument of ratification with its reservations, and (c) listing the foreign Parties to the Convention for certain evidentiary or procedural purposes under the Act (regulations 4 and 5; Schedules 1-3). Regulation 2 fixes commencement as 1 November 1997. Regulation 3 defines “Act” for the Regulations to mean the Mutual Assistance in Criminal Matters Act 1987.

Mechanically, the Regulations do three things. First, they incorporate the Convention text into Australian delegated instruments (Schedule 1), so that the Act can apply to the Convention and its substantive international obligations. Second, they record Australia’s instrument of ratification and the specific reservations Australia made under the Convention (Schedule 2). Those reservations include that judicial documents should be served only through Australia’s central authority (Article 21(2) reservation), that Australia may require translations into English (Article 25(3) reservation), and that information or evidence provided by Australia may not be used by the requesting Party for other investigations or proceedings without prior consent (Article 32(2) reservation). Third, they specify the set of foreign Parties to which the Act will apply for the purposes of subsection 43A(1) of the Act by listing those countries in Schedule 3 (regulation 5).

The Regulations do not themselves create new criminal offences or penalty regimes. Instead, they operate as an administrative and evidentiary bridge between the Act and the Convention: they declare which external Convention obligations are to be treated as falling within the scope of the Act, and memorialise Australia’s procedural choices (central authority, translation, restriction on onward use of evidence). The Convention text included in Schedule 1 sets out detailed obligations between Parties on identification, tracing, provisional measures, preservation and enforcement of confiscation orders, refusal and postponement grounds, confidentiality and restriction of use, costs and damages, and final provisions governing signature, reservations and amendments (Chapters II-IV, Articles 2-44). Regulation 4(1) expressly ties the Act’s application to countries that are Parties to the Convention, subject to the Convention text in Schedule 1. Regulation 5 links the Regulations to subsection 43A(1) of the Act by specifying the Parties in Schedule 3.

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Mutual Assistance in Criminal Matters (Money‑Laundering Convention) Regulations 1997

Statutory Rules 1997 No. 248 as amended

made under the

Mutual Assistance in Criminal Matters Act 1987

This compilation was prepared on 6 June 2003
taking into account amendments up to SR 2001 No. 202

Prepared by the Office of Legislative Drafting,
Attorney-General’s Department, Canberra

Contents

1 Name of regulations [see Note 1]

2 Commencement

3 Definitions

4 Application of Act

5 Admissibility of certain documents

Schedule 1 Convention on laundering, search, seizure and confiscation of the proceeds from crime

Schedule 2 Instrument of ratification

Schedule 3 Parties to the Convention (other than Australia)

Notes

1 Name of regulations [see Note 1]

These regulations are the Mutual Assistance in Criminal Matters (Money-Laundering Convention) Regulations 1997.

2 Commencement

These Regulations commence on 1 November 1997.

3 Definitions

In these Regulations:

Act means the Mutual Assistance in Criminal Matters Act 1987.

4 Application of Act

(1) The Act applies to countries that are parties to the Money-Laundering Convention subject to the convention, a copy of which is set out in Schedule 1.

Note The Act may also apply to some of the parties to the Money-Laundering Convention subject to bilateral or other multilateral agreements. For matters within the scope of the convention, article 39 determines the relationship between the convention and the other agreements.

(2) A copy of Australia’s instrument of ratification of the Money-Laundering Convention, with reservations, is set out in Schedule 2.

Note Article 40 of the Money-Laundering Convention allows the parties to ratify the convention subject to reservations. The effect of subsection 7 (3) of the Act is that the Act applies subject to the reservations in Australia’s instrument of ratification.

5 Admissibility of certain documents

For subsection 43A (1) of the Act, the parties to the Money-Laundering Convention are specified in Schedule 3.

Schedule 1 Convention on laundering, search, seizure and confiscation of the proceeds from crime

(regulation 4)

PREAMBLE

The member States of the Council of Europe and the other States signatory hereto,

Considering that the aim of the Council of Europe is to achieve a greater unity between its members;

Convinced of the need to pursue a common criminal policy aimed at the protection of society;

Considering that the fight against serious crime, which has become an increasingly international problem, calls for the use of modern and effective methods on an international scale;

Believing that one of these methods consists in depriving criminals of the proceeds from crime;

Considering that for the attainment of this aim a well-functioning system of international co-operation also must be established,

Have agreed as follows:

CHAPTER 1

use of terms

Article 1

Use of terms

For the purposes of this Convention:

a. “proceeds” means any economic advantage from criminal offences. It may consist of any property as defined in sub-paragraph b of this article;

b. “property” includes property of any description, whether corporeal or incorporeal, movable or immovable, and legal documents or instruments evidencing title to, or interest in such property;

c. “instrumentalities” means any property used or intended to be used, in any manner, wholly or in part, to commit a criminal offence or criminal offences;

d. “confiscation” means a penalty or a measure, ordered by a court following proceedings in relation to a criminal offence or criminal offences resulting in the final deprivation of property;

e. “predicate offence” means any criminal offence as a result of which proceeds were generated that may become the subject of an offence as defined in Article 6 of this Convention.

CHAPTER II

measures to be taken at national level

Article 2

Confiscation measures

Each Party shall adopt such legislative and other measures as may be necessary to enable it to confiscate instrumentalities and proceeds or property the value of which corresponds to such proceeds.
Each Party may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, by a declaration addressed to the Secretary General of the Council of Europe, declare that paragraph 1 of this article applies only to offences or categories of offences specified in such declaration.

Article 3

Investigative and provisional measures

Each Party shall adopt such legislative and other measures as may be necessary to enable it to identify and trace property which is liable to confiscation pursuant to Article 2, paragraph 1, and to prevent any dealing in, transfer or disposal of such property.

Article 4

Special investigative powers and techniques

Each Party shall adopt such legislative and other measures as may be necessary to empower its courts or other competent authorities to order that bank, financial or commercial records be made available or be seized in order to carry out the actions referred to in Articles 2 and 3. A Party shall not decline to act under the provisions of this article on grounds of bank secrecy.
Each Party shall consider adopting such legislative and other measures as may be necessary to enable it to use special investigative techniques facilitating the identification and tracing of proceeds and the gathering of evidence related thereto. Such techniques may include monitoring orders, observation, interception of telecommunications, access to computer systems and orders to produce specific documents.

Article 5

Legal remedies

Each Party shall adopt such legislative and other measures as may be necessary to ensure that interested parties affected by measures under Articles 2 and 3 shall have effective legal remedies in order to preserve their rights.

Article 6

Laundering offences

Each Party shall adopt such legislative and other measures as may be necessary to establish as offences under its domestic law, when committed intentionally:

a. the conversion or transfer of property, knowing that such property is proceeds, for the purpose of concealing or disguising the illicit origin of the property or of assisting any person who is involved in the commission of the predicate offence to evade the legal consequences of his actions;

b. the concealment or disguise of the true nature, source, location, disposition, movement, rights with respect to, or ownership of, property, knowing that such property is proceeds;

and, subject to its constitutional principles and the basic concepts of its legal system:

c. the acquisition, possession or use of property, knowing, at the time of receipt, that such property was proceeds;

d. participation in, association or conspiracy to commit, attempts to commit and aiding, abetting, facilitating and counselling the commission of any of the offences established in accordance with this article.

For the purposes of implementing or applying paragraph 1 of this article:

a. it shall not matter whether the predicate offence was subject to the criminal jurisdiction of the Party;

b. it may be provided that the offences set forth in that paragraph do not apply to the persons who committed the predicate offence;

c. knowledge, intent or purpose required as an element of an offence set forth in that paragraph may be inferred from objective, factual circumstances.

Each Party may adopt such measures as it considers necessary to establish also as offences under its domestic law all or some of the acts referred to in paragraph 1 of this article, in any or all of the following cases where the offender:

a. ought to have assumed that the property was proceeds;

b. acted for the purpose of making profit;

c. acted for the purpose of promoting the carrying on of further criminal activity.

Each Party may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, by declaration addressed to the Secretary General of the Council of Europe declare that paragraph 1 of this article applies only to predicate offences or categories of such offences specified in such declaration.

CHAPTER III

international co-operation

Section 1

Principles of international co-operation

Article 7

General principles and measures for international co-operation

The Parties shall co-operate with each other to the widest extent possible for the purposes of investigations and proceedings aiming at the confiscation of instrumentalities and proceeds.
Each Party shall adopt such legislative or other measures as may be necessary to enable it to comply, under the conditions provided for in this chapter, with requests:

a. for confiscation of specific items of property representing proceeds or instrumentalities, as well as for confiscation of proceeds consisting in a requirement to pay a sum of money corresponding to the value of proceeds;

b. for investigative assistance and provisional measures with a view to either form of confiscation referred to under a above.

Section 2

Investigative assistance

Article 8

Obligation to assist

The Parties shall afford each other, upon request, the widest possible measure of assistance in the identification and tracing of instrumentalities, proceeds and other property liable to confiscation. Such assistance shall include any measure providing and securing evidence as to the existence, location or movement, nature, legal status or value of the aforementioned property.

Article 9

Execution of assistance

The assistance pursuant to Article 8 shall be carried out as permitted by and in accordance with the domestic law of the requested Party and, to the extent not incompatible with such law, in accordance with the procedures specified in the request.

Article 10

Spontaneous information

Without prejudice to its own investigations or proceedings, a Party may without prior request forward to another Party information on instrumentalities and proceeds, when it considers that the disclosure of such information might assist the receiving Party in initiating or carrying out investigations or proceedings or might lead to a request by that Party under this chapter.

Section 3

Provisional measures

Article 11

Obligation to take provisional measures

At the request of another Party which has instituted criminal proceedings or proceedings for the purpose of confiscation, a Party shall take the necessary provisional measures, such as freezing or seizing, to prevent any dealing in, transfer or disposal of property which, at a later stage, may be the subject of a request for confiscation or which might be such as to satisfy the request.
A Party which has received a request for confiscation pursuant to Article 13 shall, if so requested, take the measures mentioned in paragraph 1 of this article in respect of any property which is the subject of the request or which might be such as to satisfy the request.

Article 12

Execution of provisional measures

The provisional measures mentioned in Article 11 shall be carried out as permitted by and in accordance with the domestic law of the requested Party and, to the extent not incompatible with such law, in accordance with the procedures specified in the request.
Before lifting any provisional measure taken pursuant to this article, the requested Party shall, wherever possible, give the requesting Party an opportunity to present its reasons in favour of continuing the measure.

Section 4

Confiscation

Article 13

Obligation to confiscate

A Party, which has received a request made by another Party for confiscation concerning instrumentalities or proceeds, situated in its territory, shall:

a. enforce a confiscation order made by a court of a requesting Party in relation to such instrumentalities or proceeds; or

b. submit the request to its competent authorities for the purpose of obtaining an order of confiscation and, if such order is granted, enforce it.

For the purposes of applying paragraph 1.b of this article, any Party shall whenever necessary have competence to institute confiscation proceedings under its own law.
The provisions of paragraph 1 of this article shall also apply to confiscation consisting in a requirement to pay a sum of money corresponding to the value of proceeds, if property on which the confiscation can be enforced is located in the requested Party. In such cases, when enforcing confiscation pursuant to paragraph 1, the requested Party shall, if payment is not obtained, realise the claim on any property available for that purpose.
If a request for confiscation concerns a specific item of property, the Parties may agree that the requested Party may enforce the confiscation in the form of a requirement to pay a sum of money corresponding to the value of the property.

Article 14

Execution of confiscation

The procedures for obtaining and enforcing the confiscation under Article 13 shall be governed by the law of the requested Party.
The requested Party shall be bound by the findings as to the facts in so far as they are stated in a conviction or judicial decision of the requesting Party or in so far as such conviction or judicial decision is implicitly based on them.
Each Party may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, by a declaration addressed to the Secretary General of the Council of Europe, declare that paragraph 2 of this article applies only subject to its constitutional principles and the basic concepts of its legal system.
If the confiscation consists in the requirement to pay a sum of money, the competent authority of the requested Party shall convert the amount thereof into the currency of that Party at the rate of exchange ruling at the time when the decision to enforce the confiscation is taken.
In the case of Article 13, paragraph 1.a, the requesting Party alone shall have the right to decide on any application for review of the confiscation order.

Article 15

Confiscated property

Any property confiscated by the requested Party shall be disposed of by that Party in accordance with its domestic law, unless otherwise agreed by the Parties concerned.

Article 16

Right of enforcement and maximum amount of confiscation

A request for confiscation made under Article 13 does not affect the right of the requesting Party to enforce itself the confiscation order.
Nothing in this Convention shall be so interpreted as to permit the total value of the confiscation to exceed the amount of the sum of money specified in the confiscation order. If a Party finds that this might occur, the Parties concerned shall enter into consultations to avoid such an effect.

Article 17

Imprisonment in default

The requested Party shall not impose imprisonment in default or any other measure restricting the liberty of a person as a result of a request under Article 13, if the requesting Party has so specified in the request.

Section 5

Refusal and postponement of co-operation

Article 18

Grounds for refusal

Co-operation under this chapter may be refused if:

a. the action sought would be contrary to the fundamental principles of the legal system of the requested Party; or

b. the execution of the request is likely to prejudice the sovereignty, security, ordre public or other essential interests of the requested Party; or

c. in the opinion of the requested Party, the importance of the case to which the request relates does not justify the taking of the action sought; or

d. the offence to which the request relates is a political or fiscal offence; or

e. the requested Party considers that compliance with the action sought would be contrary to the principle of ne bis in idem; or

f. the offence to which the request relates would not be an offence under the law of the requested Party if committed within its jurisdiction. However, this ground for refusal applies to co-operation under Section 2 only in so far as the assistance sought involves coercive action.

Co-operation under Section 2, in so far as the assistance sought involves coercive action, and under Section 3 of this chapter, may also be refused if the measures sought could not be taken under the domestic law of the requested Party for the purposes of investigations or proceedings, had it been a similar domestic case.
Where the law of the requested Party so requires, co-operation under Section 2, in so far as the assistance sought involves coercive action, and under Section 3 of this chapter may also be refused if the measures sought or any other measures having similar effects would not be permitted under the law of the requesting Party, or, as regards the competent authorities of the requesting Party, if the request is not authorised by either a judge or another judicial authority, including public prosecutors, any of these authorities acting in relation to criminal offences.
Co-operation under Section 4 of this chapter may also be refused if:

a. under the law of the requested Party confiscation is not provided for in respect of the type of offence to which the request relates; or

b. without prejudice to the obligation pursuant to Article 13, paragraph 3, it would be contrary to the principles of the domestic laws of the requested Party concerning the limits of confiscation in respect of the relationship between an offence and:

i. an economic advantage that might be qualified as its proceeds; or

ii. property that might be qualified as its instrumentalities; or

c. under the law of the requested Party confiscation may no longer be imposed or enforced because of the lapse of time; or

d. the request does not relate to a previous conviction, or a decision of a judicial nature or a statement in such a decision that an offence or several offences have been committed, on the basis of which the confiscation has been ordered or is sought; or

e. confiscation is either not enforceable in the requesting Party, or it is still subject to ordinary means of appeal; or

f. the request relates to a confiscation order resulting from a decision rendered in absentia of the person against whom the order was issued and, in the opinion of the requested Party, the proceedings conducted by the requesting Party leading to such decision did not satisfy the minimum rights of defence recognised as due to everyone against whom a criminal charge is made.

For the purposes of paragraph 4.f of this article a decision is not considered to have been rendered in absentia if:

a. it has been confirmed or pronounced after opposition by the person concerned; or

b. it has been rendered on appeal, provided that the appeal was lodged by the person concerned.

When considering, for the purposes of paragraph 4.f of this article, if the minimum rights of defence have been satisfied, the requested Party shall take into account the fact that the person concerned has deliberately sought to evade justice or the fact that that person, having had the possibility of lodging a legal remedy against the decision made in absentia, elected not to do so. The same will apply when the person concerned, having been duly served with the summons to appear, elected not to do so nor to ask for adjournment.
A Party shall not invoke bank secrecy as a ground to refuse any co‑operation under this chapter. Where its domestic law so requires, a Party may require that a request for co-operation which would involve the lifting of bank secrecy be authorised by either a judge or another judicial authority, including public prosecutors, any of these authorities acting in relation to criminal offences.
Without prejudice to the ground for refusal provided for in paragraph 1.a of this article:

a. the fact that the person under investigation or subjected to a confiscation order by the authorities of the requesting Party is a legal person shall not be invoked by the requested Party as an obstacle to affording any co-operation under this chapter;

b. the fact that the natural person against whom an order of confiscation of proceeds has been issued has subsequently died or the fact that a legal person against whom an order of confiscation of proceeds has been issued has subsequently been dissolved shall not be invoked as an obstacle to render assistance in accordance with Article 13, paragraph 1.a.

Article 19

Postponement

The requested Party may postpone action on a request if such action would prejudice investigations or proceedings by its authorities.

Article 20

Partial or conditional granting of a request

Before refusing or postponing co-operation under this chapter, the requested Party shall, where appropriate after having consulted the requesting Party, consider whether the request may be granted partially or subject to such conditions as it deems necessary.

Section 6

Notification and protection of third parties’ rights

Article 21

Notification of documents

The Parties shall afford each other the widest measure of mutual assistance in the serving of judicial documents to persons affected by provisional measures and confiscation.
Nothing in this article is intended to interfere with:

a. the possibility of sending judicial documents, by postal channels, directly to persons abroad;

b. the possibility for judicial officers, officials or other competent authorities of the Party of origin to effect service of judicial documents directly through the consular authorities of that Party or through judicial officers, officials or other competent authorities of the Party of destination,

unless the Party of destination makes a declaration to the contrary to the Secretary General of the Council of Europe at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession.

When serving judicial documents to persons abroad affected by provisional measures or confiscation orders issued in the sending Party, this Party shall indicate what legal remedies are available under its law to such persons.

Article 22

Recognition of foreign decisions

When dealing with a request for co-operation under Sections 3 and 4, the requested Party shall recognise any judicial decision taken in the requesting Party regarding rights claimed by third parties.
Recognition may be refused if:

a. third parties did not have adequate opportunity to assert their rights; or

b. the decision is incompatible with a decision already taken in the requested Party on the same matter; or

c. it is incompatible with the ordre public of the requested Party; or

d. the decision was taken contrary to provisions on exclusive jurisdiction provided for by the law of the requested Party.

Section 7

Procedural and other general rules

Article 23

Central authority

The Parties shall designate a central authority or, if necessary, authorities, which shall be responsible for sending and answering requests made under this chapter, the execution of such requests or the transmission of them to the authorities competent for their execution.
Each Party shall, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, communicate to the Secretary General of the Council of Europe the names and addresses of the authorities designated in pursuance of paragraph 1 of this article.

Article 24

Direct communication

The central authorities shall communicate directly with one another.
In the event of urgency, requests or communications under this chapter may be sent directly by the judicial authorities, including public prosecutors, of the requesting Party to such authorities of the requested Party. In such cases a copy shall be sent at the same time to the central authority of the requested Party through the central authority of the requesting Party.
Any request or communication under paragraphs 1 and 2 of this article may be made through the International Criminal Police Organisation (Interpol).
Where a request is made pursuant to paragraph 2 of this article and the authority is not competent to deal with the request, it shall refer the request to the competent national authority and inform directly the requesting Party that it has done so.
Requests or communications under Section 2 of this chapter, which do not involve coercive action, may be directly transmitted by the competent authorities of the requesting Party to the competent authorities of the requested Party.

Article 25

Form of request and languages

All requests under this chapter shall be made in writing. Modern means of telecommunications, such as telefax, may be used.
Subject to the provisions of paragraph 3 of this article, translations of the requests or supporting documents shall not be required.
At the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, any Party may communicate to the Secretary General of the Council of Europe a declaration that it reserves the right to require that requests made to it and documents supporting such requests be accompanied by a translation into its own language or into one of the official languages of the Council of Europe or into such one of these languages as it shall indicate. It may on that occasion declare its readiness to accept translations in any other language as it may specify. The other Parties may apply the reciprocity rule.

Article 26

Legalisation

Documents transmitted in application of this chapter shall be exempt from all legalisation formalities.

Article 27

Content of request

Any request for co-operation under this chapter shall specify:

a. the authority making the request and the authority carrying out the investigations or proceedings;

b. the object of and the reason for the request;

c. the matters, including the relevant facts (such as date, place and circumstances of the offence) to which the investigations or proceedings relate, except in the case of a request for notification;

d. in so far as the co-operation involves coercive action:

i. the text of the statutory provisions, or where this is not possible, a statement of the relevant law applicable; and

ii. an indication that the measure sought or any other measures having similar effects could be taken in the territory of the requesting Party under its own law;

e. where necessary and in so far as possible:

i. details of the person or persons concerned, including name, date and place of birth, nationality and location, and, in the case of a legal person, its seat; and

ii. the property in relation to which co-operation is sought, its location, its connection with the person or persons concerned, any connection with the offence, as well as any available information about other persons’ interests in the property; and

f. any particular procedure the requesting Party wishes to be followed.

A request for provisional measures under Section 3 in relation to seizure of property on which a confiscation order consisting in the requirement to pay a sum of money may be realised shall also indicate a maximum amount for which recovery is sought in that property.
In addition to the indications mentioned in paragraph 1, any request under Section 4 shall contain:

a. in the case of Article 13, paragraph 1.a:

i. a certified true copy of the confiscation order made by the court in the requesting Party and a statement of the grounds on the basis of which the order was made, if they are not indicated in the order itself;

ii. an attestation by the competent authority of the requesting Party that the confiscation order is enforceable and not subject to ordinary means of appeal;

iii. information as to the extent to which the enforcement of the order is requested; and

iv. information as to the necessity of taking any provisional measures;

b. in the case of Article 13, paragraph 1.b, a statement of the facts relied upon by the requesting Party sufficient to enable the requested Party to seek the order under its domestic law;

c. when third parties have had the opportunity to claim rights, documents demonstrating that this has been the case.

Article 28

Defective requests

If a request does not comply with the provisions of this chapter or the information supplied is not sufficient to enable the requested Party to deal with the request, that Party may ask the requesting Party to amend the request or to complete it with additional information.
The requested Party may set a time-limit for the receipt of such amendments or information.
Pending receipt of the requested amendments or information in relation to a request under Section 4 of this chapter, the requested Party may take any of the measures referred to in Sections 2 or 3 of this chapter.

Article 29

Plurality of requests

Where the requested Party receives more than one request under Sections 3 or 4 of this chapter in respect of the same person or property, the plurality of requests shall not prevent that Party from dealing with the requests involving the taking of provisional measures.
In the case of plurality of requests under Section 4 of this chapter, the requested Party shall consider consulting the requesting Parties.

Article 30

Obligation to give reasons

The requested Party shall give reasons for any decision to refuse, postpone or make conditional any co-operation under this chapter.

Article 31

Information

The requested Party shall promptly inform the requesting Party of:

a. the action initiated on a request under this chapter;

b. the final result of the action carried out on the basis of the request;

c. a decision to refuse, postpone or make conditional, in whole or in part, any co-operation under this chapter;

d. any circumstances which render impossible the carrying out of the action sought or are likely to delay it significantly; and

e. in the event of provisional measures taken pursuant to a request under Sections 2 or 3 of this chapter, such provisions of its domestic law as would automatically lead to the lifting of the provisional measure.

The requesting Party shall promptly inform the requested Party of:

a. any review, decision or any other fact by reason of which the confiscation order ceases to be wholly or partially enforceable; and

b. any development, factual or legal, by reason of which any action under this chapter is no longer justified.

Where a Party, on the basis of the same confiscation order, requests confiscation in more than one Party, it shall inform all Parties which are affected by an enforcement of the order about the request.

Article 32

Restriction of use

The requested Party may make the execution of a request dependent on the condition that the information or evidence obtained will not, without its prior consent, be used or transmitted by the authorities of the requesting Party for investigations or proceedings other than those specified in the request.
Each Party may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, by declaration addressed to the Secretary General of the Council of Europe, declare that, without its prior consent, information or evidence provided by it under this chapter may not be used or transmitted by the authorities of the requesting Party in investigations or proceedings other than those specified in the request.

Article 33

Confidentiality

The requesting Party may require that the requested Party keep confidential the facts and substance of the request, except to the extent necessary to execute the request. If the requested Party cannot comply with the requirement of confidentiality, it shall promptly inform the requesting Party.
The requesting Party shall, if not contrary to basic principles of its national law and if so requested, keep confidential any evidence and information provided by the requested Party, except to the extent that its disclosure is necessary for the investigations or proceedings described in the request.
Subject to the provisions of its domestic law, a Party which has received spontaneous information under Article 10 shall comply with any requirement of confidentiality as required by the Party which supplies the information. If the other Party cannot comply with such requirement, it shall promptly inform the transmitting Party.

Article 34

Costs

The ordinary costs of complying with a request shall be borne by the requested Party. Where costs of a substantial or extraordinary nature are necessary to comply with a request, the Parties shall consult in order to agree the conditions on which the request is to be executed and how the costs shall be borne.

Article 35

Damages

When legal action on liability for damages resulting from an act or omission in relation to co-operation under this chapter has been initiated by a person, the Parties concerned shall consider consulting each other, where appropriate, to determine how to apportion any sum of damages due.
A Party which has become subject of a litigation for damages shall endeavour to inform the other Party of such litigation if that Party might have an interest in the case.

CHAPTER IV

final provisions

Article 36

Signature and entry into force

This Convention shall be open for signature by the member States of the Council of Europe and non-member States which have participated in its elaboration. Such States may express their consent to be bound by:

a. signature without reservation as to ratification, acceptance or approval; or

b. signature subject to ratification, acceptance or approval, followed by ratification, acceptance or approval.

Instruments of ratification, acceptance or approval shall be deposited with the Secretary General of the Council of Europe.
This Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date on which three States, of which at least two are member States of the Council of Europe, have expressed their consent to be bound by the Convention in accordance with the provisions of paragraph 1.
In respect of any signatory State which subsequently expresses its consent to be bound by it, the Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date of the expression of its consent to be bound by the Convention in accordance with the provisions of paragraph 1.

Article 37

Accession to the Convention

After the entry into force of this Convention, the Committee of Ministers of the Council of Europe, after consulting the Contracting States to the Convention, may invite any State not a member of the Council and not having participated in its elaboration to accede to this Convention, by a decision taken by the majority provided for in Article 20.d of the Statute of the Council of Europe and by the unanimous vote of the representatives of the Contracting States entitled to sit on the Committee.
In respect of any acceding State the Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date of deposit of the instrument of accession with the Secretary General of the Council of Europe.

Article 38

Territorial application

Any State may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, specify the territory or territories to which this Convention shall apply.
Any State may, at any later date, by a declaration addressed to the Secretary General of the Council of Europe, extend the application of this Convention to any other territory specified in the declaration. In respect of such territory the Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date of receipt of such declaration by the Secretary General.
Any declaration made under the two preceding paragraphs may, in respect of any territory specified in such declaration, be withdrawn by a notification addressed to the Secretary General. The withdrawal shall become effective on the first day of the month following the expiration of a period of three months after the date of receipt of such notification by the Secretary General.

Article 39

Relationship to other conventions and agreements

This Convention does not affect the rights and undertakings derived from international multilateral conventions concerning special matters.
The Parties to the Convention may conclude bilateral or multilateral agreements with one another on the matters dealt with in this Convention, for purposes of supplementing or strengthening its provisions or facilitating the application of the principles embodied in it.
If two or more Parties have already concluded an agreement or treaty in respect of a subject which is dealt with in this Convention or otherwise have established their relations in respect of that subject, they shall be entitled to apply that agreement or treaty or to regulate those relations accordingly, in lieu of the present Convention, if it facilitates international co-operation.

Article 40

Reservations

Any State may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, declare that it avails itself of one or more of the reservations provided for in Article 2, paragraph 2, Article 6, paragraph 4, Article 14, paragraph 3, Article 21, paragraph 2, Article 25, paragraph 3 and Article 32, paragraph 2. No other reservation may be made.
Any State which has made a reservation under the preceding paragraph may wholly or partly withdraw it by means of a notification addressed to the Secretary General of the Council of Europe. The withdrawal shall take effect on the date of receipt of such notification by the Secretary General.
A Party which has made a reservation in respect of a provision of this Convention may not claim the application of that provision by any other Party; it may, however, if its reservation is partial or conditional, claim the application of that provision in so far as it has itself accepted it.

Article 41

Amendments

Amendments to this Convention may be proposed by any Party, and shall be communicated by the Secretary General of the Council of Europe to the member States of the Council of Europe and to every non‑member State which has acceded to or has been invited to accede to this Convention in accordance with the provisions of Article 37.
Any amendment proposed by a Party shall be communicated to the European Committee on Crime Problems which shall submit to the Committee of Ministers its opinion on that proposed amendment.
The Committee of Ministers shall consider the proposed amendment and the opinion submitted by the European Committee on Crime Problems and may adopt the amendment.
The text of any amendment adopted by the Committee of Ministers in accordance with paragraph 3 of this article shall be forwarded to the Parties for acceptance.
Any amendment adopted in accordance with paragraph 3 of this article shall come into force on the thirtieth day after all Parties have informed the Secretary General of their acceptance thereof.

Article 42

Settlement of disputes

The European Committee on Crime Problems of the Council of Europe shall be kept informed regarding the interpretation and application of this Convention.
In case of a dispute between Parties as to the interpretation or application of this Convention, they shall seek a settlement of the dispute through negotiation or any other peaceful means of their choice, including submission of the dispute to the European Committee on Crime Problems, to an arbitral tribunal whose decisions shall be binding upon the Parties, or to the International Court of Justice, as agreed upon by the Parties concerned.

Article 43

Denunciation

Any Party may, at any time, denounce this Convention by means of a notification addressed to the Secretary General of the Council of Europe.
Such denunciation shall become effective on the first day of the month following the expiration of a period of three months after the date of receipt of the notification by the Secretary General.
The present Convention shall, however, continue to apply to the enforcement under Article 14 of confiscation for which a request has been made in conformity with the provisions of this Convention before the date on which such a denunciation takes effect.

Article 44

Notifications

The Secretary General of the Council of Europe shall notify the member States of the Council and any State which has acceded to this Convention of:

a. any signature;

b. the deposit of any instrument of ratification, acceptance, approval or accession;

c. any date of entry into force of this Convention in accordance with Articles 36 and 37;

d. any reservation made under Article 40, paragraph 1;

e. any other act, notification or communication relating to this Convention.

In witness whereof the undersigned, being duly authorised thereto, have signed this Convention.

Done at Strasbourg, this 8th day of November 1990, in English and in French, both texts being equally authentic, in a single copy which shall be deposited in the archives of the Council of Europe. The Secretary General of the Council of Europe shall transmit certified copies to each member State of the Council of Europe, to the non‑member States which have participated in the elaboration of this Convention, and to any State invited to accede to it.

Schedule 2 Instrument of ratification

(regulation 4)

WHEREAS the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime, done at Strasbourg on the eighth day of November 1990 (the Convention) was signed for Australia, subject to ratification, on the twenty-eighth day of September 1992; and

WHEREAS Australia may ratify the Convention pursuant to
Article 36 of the Convention:

THE GOVERNMENT OF AUSTRALIA, having considered the Convention now hereby ratifies the same, for and on behalf of Australia, subject to the following reservations made in conformity with Article 40, paragraph 1 of the Convention:

In accordance with Article 21, paragraph 2, Australia declares that judicial documents should be served only through its central authority.

In accordance with Article 25, paragraph 3, Australia declares that it reserves the right to require that requests made to it and documents supporting such requests be accompanied by a translation into English.

In accordance with Article 32, paragraph 2, Australia declares that information or evidence provided by it under Chapter III of the Convention may not, without the prior consent of the competent Australian authorities, be used or transmitted by the authorities of the requesting Party in investigations or proceedings other than those specified in the request.

Further, the government of Australia hereby declares that, in accordance with Article 23, paragraph 2, the central authority of Australia designated in pursuance of Article 23, paragraph 1, is as follows:

Mutual Assistance Unit

International Branch

Criminal Law Division

Attorney-General’s Department

Robert Garran Offices

National Circuit

BARTON ACT 2600

AUSTRALIA

IN WITNESS WHEREOF, I, ALEXANDER JOHN GOSSE DOWNER, Minister for Foreign Affairs of Australia, have hereunto set my hand and affixed my seal.

done at Canberra this eighteenth day of June, One thousand nine hundred and ninety-seven.

Schedule 3 Parties to the Convention (other than Australia)

(regulation 5)

Andorra

Austria

Estonia

Belgium

Bulgaria

Croatia

Cyprus

Czech Republic

Denmark (excluding the Faroe Islands and Greenland)

Finland

France

Germany

Greece

Hungary

Iceland

Ireland

Italy

Latvia

Liechtenstein

Lithuania

Malta

Netherlands

Norway

Poland

Portugal

San Marino

Slovakia

Slovenia

Spain

Sweden

Switzerland

The former Yugoslav Republic of Macedonia

Ukraine

United Kingdom (including the Isle of Man)

Notes to the Mutual Assistance in Criminal Matters (Money‑Laundering Convention) Regulations 1997

Note 1

Note: The Mutual Assistance in Criminal Matters (Money‑Laundering Convention) Regulations 1997 (in force under the Mutual Assistance in Criminal Matters Act 1987) as shown in this compilation comprise Statutory Rules 1997 No. 248 amended as indicated in the Tables below.

Note: > Note: Table of Statutory Rules

Year andnumber	Date of notificationin Gazette	Date ofcommencement	Application, saving ortransitional provisions
1997 No. 248	24 Sept 1997	1 Nov 1997
1998 No. 292	7 Sept 1998	7 Sept 1998	—
1998 No. 336	16 Dec 1998	16 Dec 1998	—
1999 No. 10	11 Feb 1999	Schedule 2: 1 Apr 1999Remainder: 11 Feb 1999	—
1999 No. 204	16 Sept 1999	1 Oct 1999	—
2001 No. 202	2 Aug 2001	Rr. 1–3 and Schedule 1: 2 Aug 2001Schedule 2: 1 Sept 2001	—

Note: > Note: Table of Amendments

<table cellspacing="0" cellpadding="0" style="border-collapse:collapse"><tbody><tr><td colspan="2" style="width:354.9pt; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableOfAmendHead" style="margin-right:0pt"><span>ad. = added or inserted</span><span> </span><span>am. = amended</span><span> </span><span>rep. = repealed</span><span> </span><span>rs. = repealed and substituted</span></p></td></tr><tr><td style="width:111.1pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableColHead"><span>Provision affected</span></p></td><td style="width:233pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableColHead"><span>How affected</span></p></td></tr><tr><td style="width:111.1pt; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableOfAmend" style="margin-right:0pt"><span>R. 1</span><span style="width:96.89pt; text-indent:0pt; font-family:'Lucida Console', monospace; display:inline-block">.................</span></p></td><td style="width:233pt; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableOfAmend" style="margin-right:0pt"><span>rs. 1998 No. 336</span></p></td></tr><tr><td style="width:111.1pt; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableOfAmend" style="margin-right:0pt"><span style="font-weight:bold">Schedule 3</span></p></td><td style="width:233pt; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableOfAmend" style="margin-right:0pt"><span></span></p></td></tr><tr><td style="width:111.1pt; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableOfAmend" style="margin-right:0pt; margin-bottom:3pt"><span>Schedule 3</span><span style="width:68.36pt; text-indent:0pt; font-family:'Lucida Console', monospace; display:inline-block">............</span></p></td><td style="width:233pt; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableOfAmend" style="margin-right:0pt; margin-bottom:3pt"><span>am. 1998 No. 292; 1998 No. 336; 1999 Nos. 10 and 204; 2001 No. 202</span></p></td></tr></tbody></table>

1 Mutual Assistance in Criminal Matters (Money-Laundering Convention) Regulations 1997

Mutual Assistance in Criminal Matters (Money‑Laundering Convention) Regulations 1997

Statutory Rules 1997 No. 248 as amended

made under the

Mutual Assistance in Criminal Matters Act 1987

This compilation was prepared on 6 June 2003
taking into account amendments up to SR 2001 No. 202

Prepared by the Office of Legislative Drafting,
Attorney-General’s Department, Canberra

Contents

1 Name of regulations [see Note 1]

2 Commencement

3 Definitions

4 Application of Act

5 Admissibility of certain documents

Schedule 1 Convention on laundering, search, seizure and confiscation of the proceeds from crime

Schedule 2 Instrument of ratification

Schedule 3 Parties to the Convention (other than Australia)

Notes

1 Name of regulations [see Note 1]

These regulations are the Mutual Assistance in Criminal Matters (Money-Laundering Convention) Regulations 1997.

2 Commencement

These Regulations commence on 1 November 1997.

3 Definitions

In these Regulations:

Act means the Mutual Assistance in Criminal Matters Act 1987.

4 Application of Act

(1) The Act applies to countries that are parties to the Money-Laundering Convention subject to the convention, a copy of which is set out in Schedule 1.

Note The Act may also apply to some of the parties to the Money-Laundering Convention subject to bilateral or other multilateral agreements. For matters within the scope of the convention, article 39 determines the relationship between the convention and the other agreements.

(2) A copy of Australia’s instrument of ratification of the Money-Laundering Convention, with reservations, is set out in Schedule 2.

Note Article 40 of the Money-Laundering Convention allows the parties to ratify the convention subject to reservations. The effect of subsection 7 (3) of the Act is that the Act applies subject to the reservations in Australia’s instrument of ratification.

5 Admissibility of certain documents

For subsection 43A (1) of the Act, the parties to the Money-Laundering Convention are specified in Schedule 3.

The Regulations and their schedules embed several core concepts drawn from the Convention text and the Act. Definitions start at regulation 3, which defines only “Act” for the Regulations. The Convention text (Schedule 1) supplies the operational vocabulary used in cooperation and enforcement between Parties. Key Convention definitions (Article 1) include:

“Proceeds”, any economic advantage from criminal offences, potentially comprised of “property” as defined in Article 1(b).
“Property”, a broad conception that includes corporeal and incorporeal assets, movable and immovable property, and legal documents evidencing title or interest.
“Instrumentalities”, meaning property used or intended for use to commit an offence.
“Confiscation”, a court‑ordered final deprivation of property following criminal proceedings.
“Predicate offence”, the offence generating proceeds capable of being the subject of confiscation under Article 6.

Substantive domestic obligations the Convention expects Parties to adopt are recited in Chapter II (Articles 2-6). These include the requirement for Parties to provide confiscation measures (Article 2), powers to identify and trace property (Article 3), powers to seize or obtain bank, financial or commercial records (Article 4), availability of legal remedies for affected parties (Article 5), and the obligation to criminalise various forms of laundering conduct (Article 6). Article 4(1) specifically bars refusing to act on grounds of bank secrecy for requests under that provision.

Chapter III (Articles 7-35) frames international co‑operation. It sets a general duty to co‑operate to the widest extent possible (Article 7), an obligation to afford assistance in identification and tracing (Article 8), and prescribes that assistance should be performed according to the domestic law of the requested Party and the procedures set out in the request (Article 9). The framework distinguishes types of assistance: investigative (Section 2), provisional measures (Section 3, Articles 11-12), and enforcement of confiscation (Section 4, Articles 13-17). The Convention imposes particular procedural rules on form and content of requests (Article 27), translation rules (Article 25), exemptions from legalisation formalities (Article 26), confidentiality and restriction on use (Articles 32-33), and allocation of ordinary costs to the requested Party (Article 34) with consultation required for substantial costs.

Key procedural devices that will affect how requests are prepared and executed include: central authorities designated by each Party to handle requests (Article 23), direct communications in urgent cases (Article 24), and the power to refuse or postpone cooperation on enumerated grounds (Article 18 and Article 19). Article 30 requires reasons be given for refusals or conditional grants. Article 14(2) binds the requested Party to factual findings stated in convictions or judicial decisions of the requesting Party to the extent they are stated or implicitly based on those findings.

Regulation 4(2) and the note attached record that Australia’s ratification was made subject to reservations allowed by Article 40 of the Convention, and that subsection 7(3) of the Act makes the Act apply subject to the reservations in Australia’s instrument of ratification. Schedule 2 sets out those Australian reservations and designates the Attorney‑General’s Department Mutual Assistance Unit as the Australian central authority (Schedule 2).

Finally, regulation 5 and Schedule 3 operationalise a narrow evidentiary point: the Parties listed in Schedule 3 are the ones specified for subsection 43A(1) of the Act. The Regulations therefore create an interface: the Convention supplies obligations and mechanisms, Australia’s instrument of ratification narrows certain procedural modalities, and the Regulations declare the set of foreign Parties that will be treated as covered for certain Act purposes.

The Regulations affect several identifiable groups and decision points. First, they affect the Australian government agencies that receive, process and respond to mutual assistance requests under the Mutual Assistance in Criminal Matters Act 1987. Schedule 2 designates the central authority for Australia as the Mutual Assistance Unit, International Branch, Criminal Law Division, Attorney‑General’s Department, at the Robert Garran Offices, Barton ACT (Schedule 2). The central authority is the institutional locus for receiving and answering requests, executing or transmitting requests to competent execution authorities (Article 23).

Second, the Regulations affect foreign states that are Parties to the Money‑Laundering Convention. Schedule 3 lists the Parties, currently including a mix of Council of Europe member states and the United Kingdom (including the Isle of Man), among others. For purposes of subsection 43A(1) of the Act, those listed states are the ones to which the Act is declared to apply (regulation 5). Where practitioners or authorities intend to rely on subsection 43A(1), Schedule 3 determines which foreign jurisdictions are in scope.

Third, they affect persons and entities who may be the subject of mutual assistance requests: suspects and accused persons, third parties with asserted rights over property that is seized or subject to confiscation, and legal persons. The Convention expressly contemplates third‑party rights and sets obligations on notice and recognition of foreign decisions concerning such rights (Articles 21 and 22). Article 18(8)(a) says that the fact that the person under investigation is a legal person shall not be invoked as an obstacle to cooperation, which means companies and other legal entities are squarely in scope.

Fourth, the Regulations affect financial institutions and custodians of records. Article 4 obliges Parties to empower courts or competent authorities to order bank, financial or commercial records to be made available or seized, and it states a Party shall not decline to act under Article 4 on grounds of bank secrecy. This imposes operational pressure on banks and record holders in requested jurisdictions to respond to lawful requests, subject to domestic law.

Fifth, the Regulations affect prosecutorial and judicial bodies. The Convention anticipates requests from judicial authorities, including public prosecutors, and conditions where coercive measures will be allowed or refused (Article 18(3)). The Convention also requires that, where the law of the requested Party so requires, coercive measures involving the lifting of bank secrecy be authorised by a judge or another judicial authority (Article 18(7)).

Finally, they affect Government policy on evidence handling and onward disclosure. Australia’s reservation in Schedule 2, made pursuant to Article 32(2), restricts the use and transmission of information or evidence provided by Australia without prior consent of the competent Australian authorities. That reservation places an obligation on Australian authorities to control or consent to onward use, and creates constraints for requesting Parties that might expect free re‑use of evidence.

Collectively, the Regulations allocate decision authority to central government (the Attorney‑General’s Department central authority), map the set of foreign counterparties for selected Act provisions, and require domestic actors handling financial records, court orders and third‑party claims to engage with the procedural architecture of the Convention subject to Australia’s declared reservations.

The Regulations themselves are brief and mainly point to duties and rights embedded in the Convention text they adopt by reference. The key operational duties and rights to be drawn from the Convention (Schedule 1) are as follows, with the Regulations tying the Act to those provisions for Parties listed in Schedule 3 (regulations 4-5).

Duties of requested Parties

To afford the requesting Party the widest possible measure of assistance in identification and tracing of instrumentalities, proceeds and other property liable to confiscation (Article 8). Assistance includes measures providing evidence as to existence, location, movement, nature, legal status and value of property.
To execute provisional measures such as freezing or seizing property at the request of another Party to prevent dealing, transfer or disposal of property which may be subject to confiscation (Article 11). Execution is to be carried out as permitted by domestic law (Article 12(1)).
Where a request for confiscation concerns property situated in the requested Party, to enforce a confiscation order made by a court of the requesting Party, or to institute domestic confiscation proceedings to obtain an order and enforce it if granted (Article 13(1)(a)-(b), (2)). Procedures for obtaining and enforcing confiscation are governed by the law of the requested Party (Article 14(1)).
To designate a central authority responsible for sending and answering requests and for execution or transmission to competent authorities (Article 23(1)).

Duties of requesting Parties

To include sufficient detail in requests to enable the requested Party to act, including identification of the authority making the request, the object and reason for the request, relevant facts, text of statutory provisions where coercive action is sought, and details of persons and property involved where available (Article 27(1), (3)).
To indicate maximum recovery amounts for provisional measures related to seizure where a confiscation order requires payment of a sum (Article 27(2)).
To inform the requested Party promptly of any review or development that affects enforceability of the confiscation order or justifies cessation of action (Article 31(2)).

Rights and protections for affected persons

Legal remedies must be available to interested parties affected by measures under Articles 2 and 3 (Article 5).
Notification and service procedures are required for persons affected by provisional measures and confiscation, with the requesting Party to indicate what legal remedies are available under its law (Article 21).
Recognition of foreign judicial decisions respecting third‑party rights is required, subject to grounds for refusal such as inadequate opportunity for third parties to assert rights or incompatibility with ordre public (Article 22).

Grounds for refusal and procedural protections

The Convention lists grounds where cooperation may be refused, including incompatibility with fundamental legal principles, threats to sovereignty, political or fiscal offences, and where the offence would not be an offence under the requested Party’s law (Article 18(1)(a)-(f)). It further specifies additional refusal rules for coercive action and for confiscation requests, including procedural fairness concerns (Article 18(2)-(5)).
The requested Party must provide reasons for any refusal, postponement or conditional grant (Article 30).
Parties may impose conditions on execution, including confidentiality or restriction on use of information and evidence (Articles 32-33).

Costs and liability

Ordinary costs of complying with a request are to be borne by the requested Party; substantial or extraordinary costs require consultation to agree on terms (Article 34).
Parties shall consult as appropriate on apportionment of damages in respect of liability for damages arising from acts or omissions in cooperating (Article 35).

Reservations and limits

The Convention allows Parties to make reservations in respect of specified Articles (Article 40). Regulation 4(2) notes that the Act applies subject to the reservations in Australia’s instrument of ratification (Schedule 2), which record Australia’s choice to centralise service through its central authority (Article 21(2) reservation), require translations into English (Article 25(3) reservation), and limit use or transmission of evidence provided by Australia (Article 32(2) reservation).

Administrative duties under the Regulations

The Regulations designate the Convention text and Australia’s instrument of ratification as schedules. They require that Parties specified in Schedule 3 be treated for purposes of subsection 43A(1) of the Act as the Parties to the Convention (regulation 5). Practitioners should therefore see the Regulations as creating an administrative duty to consult Schedule 2 and Schedule 3 when preparing or responding to requests under the Act.

These duties and rights are procedural and intergovernmental in nature; the Regulations do not create new criminal penalties but align the domestic mutual assistance regime under the Act with the Convention’s obligations as accepted by Australia.

The Regulations do not themselves create criminal penalties or enforcement sanctions. They operate as a linking instrument that brings the Convention into the operational scope of the Mutual Assistance in Criminal Matters Act 1987 for the Parties listed in Schedule 3, and records Australia’s ratification reservations and its designated central authority. Enforcement mechanics and penalties, to the extent they arise, are therefore derived from three sources present in the schedules and the Act rather than from the Regulations alone.

Convention mechanisms that affect enforcement

Confiscation as a court-ordered final deprivation of property is defined in Article 1(d) and the Convention requires Parties to adopt domestic legislative measures to enable confiscation of proceeds and instrumentalities (Article 2). The Convention assumes domestic penal and civil procedures will exist to implement confiscation, but it leaves the content of those sanctions to Parties’ domestic law. Article 14(1) expressly provides that the procedures for obtaining and enforcing confiscation under the Convention are governed by the law of the requested Party.
The Convention prescribes that a requested Party shall not impose imprisonment in default or other liberty-restricting measures as a result of a request under Article 13 if the requesting Party has so specified in the request (Article 17). That is a constraint on enforcement measures the requested Party may apply in response to a foreign confiscation request.
Article 18 sets out grounds for refusal to cooperate that may be invoked by a requested Party. Those grounds include incompatibility with fundamental principles of the requested Party’s legal system, threats to sovereignty or security, political or fiscal offences, ne bis in idem, or lack of dual criminality where coercive action is sought (Article 18(1)(a)-(f) and paragraph 1.f). The Convention therefore builds in adjudicative discretion for requested authorities to refuse execution. Article 30 requires that reasons be given for any refusal or conditional grant.

Administrative enforcement obligations

The Convention requires designation of central authorities to receive and execute requests (Article 23). Schedule 2 designates the Attorney‑General’s Department Mutual Assistance Unit as Australia’s central authority. The central authority structure is the administrative enforcement mechanism for inbound and outbound requests under the Convention regime, including any monitoring of compliance with reservations Australia took at ratification.
Article 11 obliges Parties to take provisional measures such as freezing or seizing property at the request of another Party where criminal proceedings or proceedings for confiscation have been instituted by the requesting Party. Execution of provisional measures must be carried out as permitted by domestic law (Article 12(1)), and the requested Party should, wherever possible, give the requesting Party an opportunity to present reasons before lifting provisional measures (Article 12(2)). Thus provisional enforcement steps are available, constrained by domestic procedural rules.

Costs and liability provisions

Article 34 assigns ordinary costs of complying with a request to the requested Party, and requires consultation where costs are substantial or extraordinary. This affects the financial consequences of enforcement actions. Article 35 contemplates consultation on apportioning damages where litigation for damages arises from acts or omissions in relation to cooperation. Those provisions shape financial liability risks for requested Parties and their budgetary exposure.

Limits arising from Australia’s reservations

Australia’s reservation under Article 32(2) in Schedule 2 forbids use or transmission of information or evidence provided by Australia without prior consent. That reservation creates a legal constraint on enforcement in requesting Parties where evidence supplied by Australia must not be reused without consent. It is an internal restraint that affects the enforceability and cross‑use of material, particularly where the requesting Party seeks to use supplied material in additional proceedings.

In short, the Regulations do not impose criminal sanctions but lock Australia into an international mutual assistance architecture where enforcement of confiscation and provisional measures is governed by each Party’s domestic law, subject to the Convention’s mutual obligations, reasons and refusal mechanics, cost allocation principles, and Australia’s recorded reservations. Practitioners should look to the Act, domestic confiscation law and the Convention provisions in Schedule 1 for the substantive enforcement rules and applicable limits.

The Regulations are expressly an instrument under the Mutual Assistance in Criminal Matters Act 1987 and are framed to integrate the Convention into the operation of that Act. Regulation 4(1) states that the Act applies to countries that are Parties to the Money‑Laundering Convention subject to the Convention set out in Schedule 1. The Note to regulation 4 also points to Article 39 of the Convention to determine the relationship between the Convention and bilateral or other multilateral agreements, and it notes that subsection 7(3) of the Act makes the Act apply subject to the reservations in Australia’s instrument of ratification.

Relationship with the Mutual Assistance in Criminal Matters Act 1987

The Regulations do not amend the Act directly, but they declare that certain international Treaty obligations are to be treated as falling within the Act’s scope for Parties listed in Schedule 3. The practical effect is that requests between Australia and those Parties will be handled under the Act while taking into account the Convention text and Australia’s ratification reservations. Where the Act contains specific procedural or evidentiary provisions (for example subsection 43A(1) as referenced by regulation 5), the Regulations identify how the Convention Parties are to be treated in relation to those provisions, by listing Parties in Schedule 3 for the purposes of subsection 43A(1).

Interplay with other international agreements

The Convention itself contemplates coexistence with other international instruments. Article 39 states the Convention does not affect rights and undertakings derived from international multilateral conventions concerning special matters and allows Parties to conclude bilateral or multilateral agreements to supplement or strengthen provisions. The Convention permits Parties to apply existing agreements between them in lieu of the Convention where that facilitates cooperation. The Regulations embody that flexibility by noting in the Note to regulation 4 that the Act may also apply to some of the Parties subject to bilateral or other multilateral agreements, and that Article 39 determines the relationship between the Convention and other agreements.

Domestic law constraints on execution

The Convention repeatedly conditions execution on the domestic law of the requested Party (Article 9, Article 12(1), Article 14(1)). That means the Act’s mechanisms will operate within the limits of Australian law when Australia is the requested Party, and similarly Australian authorities must respect foreign domestic law limits when acting as the requesting Party. Article 18 sets out various grounds for refusal rooted in domestic constitutional and legal principles; where Australian law contains protections that preclude certain measures, the requested Australian authorities will need to apply those domestic constraints even if the Convention otherwise contemplates assistance.

Reservations, translations and service procedures

Australia’s instrument of ratification in Schedule 2 records reservations under Articles 21(2), 25(3) and 32(2). Those reservations interact with domestic administrative practice and with the Act. For example, Australia's reservation under Article 21(2) that judicial documents should be served only through its central authority centralises service, which intersects with any domestic service rules or international service conventions that might otherwise permit direct service. The Article 25(3) reservation permitting Australia to require translations into English interacts with the Convention’s default allowance that translations shall not be required (Article 25(1)-(3)), thereby imposing a translation compliance cost on requesting Parties. The Article 32(2) reservation restricting onward use of information supplied by Australia interacts with any domestic regimes in a requesting State that would otherwise permit broader use of evidence.

Evidentiary interaction

Regulation 5 specifically links Schedule 3 to subsection 43A(1) of the Act by specifying the Parties to the Convention for that subsection. While the Regulations do not reproduce subsection 43A(1), this indicates an intended evidentiary interaction: documents or rights of proof may be treated differently when they derive from those listed foreign Parties. Practitioners should consult the Act in conjunction with these Regulations to determine precise evidentiary consequences.

Costs and damages

Article 34 and Article 35 of the Convention allocate costs and encourage consultation on apportionment of damages for cooperation actions, which interact with domestic budgetary rules and civil liability regimes. The requested Party ordinarily bears the routine cost of execution unless the Parties agree otherwise for substantial costs.

In short, the Regulations function as a bridging instrument. They require practitioners to read the Regulations, the Convention text in Schedule 1, Australia’s instrument of ratification in Schedule 2, the Parties listed in Schedule 3, and the Mutual Assistance in Criminal Matters Act 1987 together, because the Convention obligations are to be implemented in conformity with domestic law and subject to Australia’s reservations.

The compilation includes the original 1997 Regulations and records subsequent statutory rule amendments up to SR 2001 No. 202. The Notes section provides a Table of Statutory Rules and a Table of Amendments summarising how the Regulations and schedules have been modified since first made.

Key dates and rules of commencement

The Regulations as made are Statutory Rules 1997 No. 248, with commencement 1 November 1997 (regulation 2; Table of Statutory Rules).
Amendments were made by subsequent Statutory Rules: 1998 No. 292 (notified 7 September 1998; commenced 7 September 1998), 1998 No. 336 (notified 16 December 1998; commenced 16 December 1998), 1999 No. 10 (notified 11 February 1999; Schedule 2 commenced 1 April 1999, remainder 11 February 1999), 1999 No. 204 (notified 16 September 1999; commenced 1 October 1999), and 2001 No. 202 (notified 2 August 2001; rules 1-3 and Schedule 1 commenced 2 August 2001, Schedule 2 commenced 1 September 2001). These entries are recorded in the Notes Table of Statutory Rules.

Table of Amendments summary

The Table of Amendments in the Notes records that regulation 1 was repealed and substituted by 1998 No. 336 (entry “R. 1 … rs. 1998 No. 336”), indicating a textual substitution occurred in regulation 1.
Schedule 3 has been amended multiple times, as recorded in the Table of Amendments and the line item showing Schedule 3 was amended by 1998 No. 292; 1998 No. 336; 1999 Nos. 10 and 204; and 2001 No. 202. The Table of Amendments indicates Schedule 3 was subject to additions or amendments across these Statutory Rules.

Consequences apparent from the Notes

The amendment history suggests that the list of Parties in Schedule 3 has been updated at several points, consistent with new accessions, withdrawals or changes in the parties to the Convention. The Notes show multiple amendments to Schedule 3 rather than to the substantive Convention text (Schedule 1), reflecting the administrative need to keep the list of in‑scope foreign Parties current. Regulation 1 was substituted by statutory rule 1998 No. 336, though the Notes do not reproduce the original or substituted text; the Table records the change.

Practical implications

The amendment history recorded in the Notes indicates that practitioners should not assume Schedule 3 is static; it has been updated several times by subordinate instrument. For current practice, legal advisers must consult the latest consolidated version of the Regulations or the Administrative Notices to confirm which foreign jurisdictions are listed and the current text of regulation 1 if relevant. The Notes provide the statutory rule numbers and commencement dates required to track those changes.

Limitations of the compilation

The available compilation records amendments up to SR 2001 No. 202. Any amendments made after that statutory rule are not included in the compilation provided. Users should confirm whether later amendments exist when advising on present‑day mutual assistance arrangements.

Overall, the amendment history is administrative in nature, focusing on substitution of the regulations’ opening provision and iterative updates to Schedule 3, and the Notes provide the statutory rule citations and commencement information needed to trace those changes.

The Regulations compilation as provided does not include any recorded litigation history. The schedules are administrative and treaty incorporation instruments, and the Notes and Tables of Amendments identify statutory rule numbers and commencement dates but do not cite or summarise any court decisions, judicial determinations or disputes arising from the Regulations or from Australia’s implementation of the Convention. The Convention text (Schedule 1) itself provides mechanisms for dispute resolution under Article 42, including negotiation, referral to the European Committee on Crime Problems, arbitration or the International Court of Justice, but those are interstate dispute mechanisms within the Convention and not domestic litigation.

Practical consequences of the absence of recorded litigation in the instrument

The absence of reported litigation in the compilation means there is no case law cited within this document to help interpret: (a) the interaction between the Act and the Convention as applied under these Regulations, (b) the legal effect of Australia’s reservations recorded in Schedule 2, or (c) the procedural implications of regulation 5’s specification of Parties for subsection 43A(1) of the Act. For legal practitioners, this increases the importance of careful statutory and treaty text analysis when advising on mutual assistance requests, as well as the need to check external sources for any judicial treatment of the Act, the Convention or their interaction since the compilation’s last amendment.

Convention dispute mechanisms

Article 42 of the Convention provides interstate resolution channels, including the European Committee on Crime Problems, arbitration and the International Court of Justice, but those are international dispute settlement forums provided by the Convention. The Regulations do not record any invocation of those mechanisms by Australia or any other Party, nor do they report decisions of such mechanisms.

Recommended practitioner action

Because this instrument does not report litigation or judicial interpretation, practitioners should consult (a) the Mutual Assistance in Criminal Matters Act 1987 and subsequent case law under that Act, (b) any judicial decisions concerning the operation of the Convention’s provisions in Australian courts, and (c) administrative guidance from the Attorney‑General’s Department Mutual Assistance Unit, to understand how Australia has operationalised the Convention and given effect to the reservations listed in Schedule 2.

In short, no litigation history is recorded in the materials supplied. Any legal interpretation of these Regulations should therefore be based on the text of the Act and the Convention plus any external case law not reproduced here.

The instrument embeds several practical hazards and compliance traps that arise from the interaction of the Convention text and Australia’s recorded reservations. These are not judgments but mechanically observable features from the Regulations and schedules that counsel and compliance officers should note.

Reservation-induced procedural constraints

Australia’s instrument of ratification records three specific reservations (Schedule 2): (1) judicial documents should be served only through Australia’s central authority (reservation to Article 21(2)); (2) Australia reserves the right to require translations into English for requests and documents (reservation to Article 25(3)); and (3) information or evidence provided by Australia may not be used or transmitted by the requesting Party for investigations or proceedings other than those specified without prior consent (reservation to Article 32(2)). These reservations constrain incoming procedural options and require requesters to engage with the central authority and to supply translations where required. A requesting authority that attempts direct service or omits an English translation risks procedural rejection or delay.

Centralisation of service and communications

The reservation that judicial documents be served only through Australia’s central authority concentrates control of incoming documents in the Attorney‑General’s Department Mutual Assistance Unit (Schedule 2). That centralisation means timing, compliance and internal triage decisions are filtered through a single administrative body. Requesting Parties that rely on direct service channels or consular transmission will need to modify practice to comply with Australia’s reservation.

Translation costs and evidentiary sufficiency

Under Article 25 the default is that translations are not required, but Australia’s Article 25(3) reservation permits it to require English translations. Practically, this places the onus on the requesting Party to provide an English translation for requests to Australia. Failure to provide sufficient translation material may trigger the “defective request” mechanism under Article 28 and cause the requested Party to request amendment or additional information, and to set a time limit for receipt of such amendments (Article 28(1)-(2)). Time-limited requests can produce loss of urgency or missed provisional measures windows.

Restriction on onward use of evidence

Australia’s reservation to Article 32(2) makes any information or evidence supplied by Australia subject to prior consent before the requesting Party can use it in other investigations or proceedings. That restriction can materially limit the utility of material supplied by Australia, particularly where the requesting Party would otherwise rely on that material to spawn related prosecutions. Requesters must therefore negotiate consent or avoid relying on Australian material for secondary uses without the competent Australian authority’s permission.

Bank secrecy and judicial authorisations

Article 4(1) requires Parties to enable courts or competent authorities to order bank, financial or commercial records to be made available or seized, and it says a Party shall not decline to act under Article 4 on grounds of bank secrecy. However, Article 18(7) allows a Party, where its domestic law so requires, to require that a request which would involve lifting bank secrecy be authorised by a judge or other judicial authority. For Australia, this means that although bank secrecy cannot be invoked as a general ground for refusal under Article 4, domestic procedural safeguards may still demand judicial authorisation before bank records are released. Requesting authorities should therefore account for possible judicial authorisation steps.

Grounds for refusal and evidentiary expectations

Article 18 enumerates a variety of grounds for refusal or postponement of cooperation, including constitutional principles, sovereignty and ordre public, political or fiscal offences, ne bis in idem and lack of dual criminality for coercive measures. Article 18(4) further lists grounds specific to confiscation requests, such as when confiscation is not provided for in the requested Party or would exceed domestic limits. Requesters should present requests that anticipate and forestall these grounds by providing detailed factual and legal material as required by Article 27, including certified copies of confiscation orders, attestations that orders are enforceable and not subject to ordinary appeal, and details about third‑party rights.

Consequence of defective requests

Article 28 allows the requested Party to ask for amendment or further information where requests are defective and to set time limits. While provisional measures may be taken pending receipt of amendments, defective requests can undermine the timeliness or scope of assistance. Practitioners should heed Article 27’s content checklist to avoid defective requests.

Schedule 3 currency risk

Schedule 3 lists Parties to the Convention other than Australia. That list has been amended repeatedly according to the Notes. Counsel should not rely on the static list in an older printout; rather, they should check that the foreign State in question remains in Schedule 3 for purposes of subsection 43A(1) of the Act and that no later amendments or accessions have occurred post compilation.

Costs allocation and extraordinary expenses

Article 34 assigns ordinary costs to the requested Party, but substantial or extraordinary costs require consultation. Requesters expecting resource-intensive actions should expect negotiations over cost sharing, potentially delaying execution.

Third‑party rights and recognition limits

Article 22 requires respect for third‑party rights and allows refusal of recognition where third parties lacked adequate opportunity to assert rights, decisions conflict with prior domestic decisions, or decisions are incompatible with ordre public. Where third parties claim rights over property, enforcing a confiscation order may become procedurally complex and protracted.

These “gotchas” flow directly from the text of the Convention and Australia’s reservations recorded in Schedule 2. They translate into predictable sources of delay, procedural friction, translation and documentation costs, and administrative control points that both requesting and requested authorities must negotiate.

Complying with the operational regime the Regulations set up requires following the Convention’s procedural prescriptions, observing Australia’s recorded reservations, and aligning requests and responses with the Mutual Assistance in Criminal Matters Act 1987. The following practical checklist is drawn from the Convention articles as reproduced in Schedule 1 and from Schedule 2 reservations, and is framed for both requesting authorities and Australian executing authorities.

For requesting authorities preparing a request to Australia

Use the designated channel: Serve judicial documents and make formal mutual assistance requests through Australia’s central authority, the Mutual Assistance Unit, International Branch, Criminal Law Division, Attorney‑General’s Department, as specified in Schedule 2. Australia declared that judicial documents should be served only through its central authority (Schedule 2; reservation to Article 21(2)).
Prepare required content: Follow Article 27. State the authority making the request; the object and reason; relevant facts including dates, places and circumstances; the statutory text or statement of relevant domestic law where coercive measures are sought; and, where possible, details of persons and property, their connection to the offence, and known third‑party interests (Article 27(1)(a)-(e)). For confiscation requests under Article 13(1)(a), include a certified true copy of the confiscation order, a statement of grounds, an attestation that the order is enforceable and not subject to ordinary appeal, and detail the extent of enforcement sought and whether provisional measures are necessary (Article 27(3)(a)(i)-(iv)).
Include certified materials and translations: Australia reserved the right to require translations into English (Schedule 2; Article 25(3) reservation). Provide certified copies and English translations of supporting documents when sending requests to Australia. Failure to do so is likely to trigger a request for additional information under Article 28.
Anticipate provisional measures: If urgent freezing or seizure is required, indicate the need for provisional measures and where a confiscation order involves a sum of money indicate a maximum recovery amount for any property seizure (Article 11; Article 27(2)).
Address third‑party rights: If third parties have had the opportunity to claim rights, include documents evidencing this, as Article 27(3)(c) requires. Article 22 protects third‑party rights and recognises foreign decisions only subject to specified caveats.
Confidentiality and restriction on use: If confidentiality is required, state this in the request (Article 33). Where Australia is the requested Party, be aware Australia’s Article 32(2) reservation disallows onward use of Australian-supplied material without prior consent (Schedule 2). Secure consent if you intend to use evidence provided by Australia in other proceedings.
Budget for costs: Ordinary costs are borne by the requested Party (Article 34), but if the action will incur substantial costs, consult with Australia about cost‑sharing arrangements before execution.

For Australian authorities responding to a request

Verify form and sufficiency: Check requests against Article 27. If a request is defective or lacking information, request amendment under Article 28 and set an appropriate time limit for receipt of the additional information. Consider provisional measures pending receipt of amendments where urgency is an issue (Article 28(3)).
Observe domestic law limits: Execute measures only as permitted by Australian domestic law. The Convention repeatedly conditions execution on domestic law (Articles 9, 12(1), 14(1)). Ensure any bank record production or seizure is authorised in accordance with Australian law, and where domestic law requires judicial authorisation for lifting bank secrecy, secure that authorization (Article 18(7)).
Apply reservations: Apply Australia’s reservation to restrict onward use of evidence supplied without prior consent (Schedule 2; Article 32(2)). Ensure confidentiality obligations are observed for spontaneous information and requests where the transmitting Party requires confidentiality (Article 33).
Provide reasons for refusal or conditional grant: If refusing or postponing cooperation, provide reasons in accordance with Article 30 and the grounds listed in Article 18. Where refusal is partial or conditional, consider whether partial grant or conditions are possible and appropriate (Article 20).
Coordinate central authority duties: The Mutual Assistance Unit is the central authority for transmitting and receiving requests (Schedule 2; Article 23). Centralise incoming requests, triage for coercive action, and where necessary transmit to appropriate judicial or law enforcement authorities for execution. Ensure direct communication protocols are followed for urgent requests (Article 24).
Manage notifications: Promptly inform the requesting Party of actions initiated, final results, refusals, delays and any domestic law provisions that would automatically lift provisional measures (Article 31(1)(a)-(e)).
Handle costs and damages: Apply Article 34 by defaulting ordinary costs to Australia while initiating consultation with the requesting Party on any substantial costs. If litigation arises for damages, consider Article 35 obligations to consult on apportionment of any damages.

Cross-cutting actions for practitioners

Keep Schedule 3 up to date: Verify the foreign State is listed in Schedule 3 for purposes of subsection 43A(1) of the Act before invoking that subsection in court or in administrative practice (regulation 5).
Liaise early with central authorities: Use Article 24’s direct communication possibilities in urgent circumstances, but ensure a copy is sent to central authorities as required.
Document chain of custody and fairness steps: Because Article 14(2) can bind a requested Party to findings stated in a conviction or judicial decision of the requesting Party, record the provenance and enforceability of such foreign judgments carefully.
Anticipate translation and evidentiary work: Budget time and resources for translation into English and for producing certified copies and attestations that confiscation orders are enforceable and not appealable in ordinary processes.

Compliance with these steps will align operational practice with the Convention provisions adopted in Schedule 1 and with Australia’s ratification reservations recorded in Schedule 2, while ensuring responses are consistent with the procedural constraints of the Mutual Assistance in Criminal Matters Act 1987.

Mutual Assistance in Criminal Matters (Money-Laundering Convention) Regulations 1997

Plain English Summary

Deep Dive

What it does

Current sections

Mutual Assistance in Criminal Matters (Money-Laundering Convention) Regulations 1997

Source text: opening excerpt

1 Mutual Assistance in Criminal Matters (Money-Laundering Convention) Regulations 1997

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