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