Mutual Assistance in Criminal Matters Regulations 1988

Summons. Regulation 3 and Form 1 set out the summons procedure. A Magistrate or an eligible Judge acting under the Act may issue a summons requiring a named person to attend to give evidence, answer questions, or produce documents and other articles in the person’s custody or control. The summons may require attendance only for production without testifying. Service must be personal or on a duly authorised person, and the summons must be shown at the time of service (regulation 3(2)). If personal service cannot be effected, a Magistrate or eligible Judge may order substituted service, specifying steps to bring the document to the person’s notice, and may order that the document be taken to have been served on the happening of a specified event or after a specified time (regulation 3(3)-(4)). This is a significant concept: a person can be deemed served without ever receiving physical delivery, increasing the risk of non‑compliance through ignorance.

Warrant of apprehension. Regulation 5 and Form 2 create the power to issue a warrant for the arrest of a person who fails to attend after having been duly served and having been paid or tendered a reasonable sum for expenses. The warrant authorises police to apprehend the person in any State or Territory and bring them before a Magistrate or eligible Judge, and to detain them until released by order. The arrest does not relieve the person from any liability already incurred for the earlier failure (regulation 5(4)). This is a coercive enforcement mechanism that can subject a person to interstate arrest for non‑attendance at a civil‑type summons.

Examination on oath or affirmation. Regulation 7 empowers the Magistrate or eligible Judge to administer an oath or affirmation to any witness and examine them on oath. A person may choose affirmation instead of an oath. The forms of oaths and affirmations follow, as nearly as practicable, those used in the Supreme Court of the State or Territory where administered. An affirmation has the same effect as an oath.

Recognizance forfeiture. Regulation 11 provides that if a person admitted to bail in relation to a proceeding under the Act fails to comply with the recognisance conditions, a Magistrate, eligible Judge or Supreme Court Judge may declare the recognisance forfeited. The regulation then permits a court with jurisdiction in the State or Territory where the forfeiture was declared to enforce payment of any amount due under the recognisance from a person residing there. Amounts recovered are transmitted to the Commonwealth Attorney‑General. This creates a financial penalty mechanism independent of the criminal offences in regulations 8 and 9.

Eligible Judge. The Act itself (not reproduced here) defines an eligible Judge; the Regulations simply refer to that definition. An eligible Judge is typically a judge of a superior court designated by the Attorney‑General. The concept matters because eligible Judges can perform functions under the Act outside the usual magistrates’ court jurisdiction, providing higher judicial authority for complex matters.

Witnesses. Any natural person named in a summons is directly affected. They face compulsory attendance, potential arrest, and criminal penalties for non‑compliance or contempt. The witness may be a resident of any State or Territory, and the summons may be served interstate. The witness must attend from day to day unless excused (regulation 4). They are entitled to witness fees and travelling allowances as if attending before a court of summary jurisdiction in that State or Territory, or such other fees as the Magistrate or Judge directs (regulation 6(1)). However, those fees are paid by the person at whose request the summons was issued (regulation 6(3)), and the witness has no guarantee of full indemnity for lost income or inconvenience beyond the standard court scale.

The requesting party. This could be the Commonwealth Attorney‑General’s Department acting on a foreign request, or an Australian law enforcement agency requesting evidence for a domestic proceeding that falls under the Act. That party bears the financial burden of paying or tendering a reasonable sum for expenses before a warrant can issue (regulation 5(1)(b)), and must pay the witness fees and allowances (regulation 6(3)). There is no cap on the amount a Magistrate or Judge may direct in special circumstances. The requesting party also bears the cost of arranging service and potentially applying for substituted service orders. These costs are not recoverable from the witness.

Magistrates and eligible Judges. They perform functions under the Act and exercise powers to issue summonses, warrants, administer oaths, examine witnesses, forfeit recognisances, and make substituted service orders. They receive the same protection and immunity as a Supreme Court judge (regulation 10(1)). This is a significant expansion of their usual liability shield when acting under this regime.

Legal practitioners. Barristers and solicitors appearing before a Magistrate or eligible Judge in connection with the Act have the same protection and immunity as they would have in Supreme Court proceedings (regulation 10(2)). Self‑represented parties get analogous protection as a party in the Supreme Court (regulation 10(3)). This shifts the usual liability rules that apply in lower courts.

Police officers. Police are required to execute warrants of apprehension (Form 2) in any State or Territory. They may be required to arrest and detain persons who have failed to attend a summons. The warrant authorises them to use reasonable force to effect the arrest.

Third parties with custody or control of documents. Persons who are only required to produce documents or other articles, not to testify, are still compelled to attend and produce. Failure to produce without reasonable excuse is an offence (regulation 8(1)(c)). This affects businesses, banks, solicitors, and others holding records relevant to a foreign or domestic criminal investigation.

Duty to attend. Regulation 4 imposes a clear duty: a person summoned must attend at the place, time and date specified and then from day to day unless excused or released by a Magistrate or Judge. This is not a one‑off appearance; it may require daily attendance for an indefinite period. The duty arises even if the person believes the summons is invalid or the underlying request is improper. There is no right to challenge the summons before attending; any challenge must be raised after attendance, and failure to attend in the first place exposes the person to arrest and criminal liability.

Duty to answer questions and produce documents. Regulation 8(1)(b) and (c) prohibit refusal to be sworn or make an affirmation, refusal without reasonable excuse to answer any question, and refusal or failure without reasonable excuse to produce any document or other article required by the summons. The duty to answer questions is broad: “any question” when required by the Magistrate or Judge. There is no explicit carve‑out for self‑incrimination or legal professional privilege. However, the Act itself (outside these Regulations) may provide such protections; the Regulations are silent, so the general law would apply. A person must also produce documents and other articles in their “custody or control”. That phrase is broad enough to cover electronic records, physical objects, and data held by third parties if the person has practical control.

Rights to witness fees. Regulation 6 entitles a person who attends to be paid witness fees and travelling allowances. The default rate is that applicable to a court of summary jurisdiction in that State or Territory. The Magistrate or Judge may direct a different amount in special circumstances. The person may also have received a payment or tender of a reasonable sum for expenses; any such amount is deducted from the fees otherwise payable (regulation 6(2)). The right to fees is not automatic; it is contingent on the person actually attending. If the person fails to attend, they not only lose the fee but may be arrested and fined.

Rights to protection and immunity. Regulation 10 gives a witness who appears before a Magistrate or eligible Judge the same protection as a witness in proceedings in the Supreme Court of that State or Territory. This includes protection from defamation for evidence given, and immunity from certain forms of process (e.g. arrest on civil process while attending, coming and going). However, the protection is not absolute; it mirrors the Supreme Court standard, which may include exceptions for perjury or other misconduct.

Right to substitute service protections. A person subject to a substituted service order under regulation 3(3)-(4) has the right to have the steps specified in the order taken. The person may also benefit from the order’s specification of when service is deemed to have occurred. However, the person may not know about the order, and the deemed service may occur before they have actual notice, creating a trap for those who are not diligently seeking legal advice.

Offences under regulation 8. Three discrete offences exist: (a) failing to attend without reasonable excuse after payment or tender of expenses (maximum 5 penalty units, strict liability); (b) refusing to be sworn or to make an affirmation, or without reasonable excuse refusing to answer any question (maximum 5 penalty units); (c) without reasonable excuse refusing or failing to produce any document or other article required (maximum 5 penalty units). Strict liability means the prosecution does not need to prove fault; the person must prove they had a reasonable excuse. The penalty of 5 penalty units is modest in dollar terms (currently around $1,100 for an individual) but the offence is criminal, carrying a conviction record.

Offences under regulation 9. This creates a broader contempt‑type offence when a Magistrate or eligible Judge is performing functions under the Act. The conduct includes intentionally insulting or disturbing the Magistrate or Judge, interrupting proceedings, using insulting language, or by writing or speech using words calculated to improperly influence the Magistrate, Judge, witness or other person, or to bring the Magistrate or Judge into disrepute. The maximum penalty is 10 penalty units (approximately $2,200). The wording “calculated to influence improperly” and “calculated to bring into disrepute” suggest a subjective test of the speaker’s intention or the natural tendency of the words. This creates a chilling effect on criticism of the process, though the penalty is not large.

Arrest without conviction. Regulation 5 provides a parallel enforcement mechanism without the need for a criminal charge. A warrant for apprehension can issue if a person fails to attend after due service and tender of expenses. The person may be arrested, brought before a Magistrate or eligible Judge, and detained until released by order. This detention is not a punishment but a means to compel attendance. The person may then be required to give evidence or produce documents under threat of further sanctions. The regulation does not specify a maximum detention period, but presumably it lasts only until the witness is brought before the judicial officer.

Forfeiture of recognizance. Regulation 11 allows forfeiture of bail where a person breaches recognisance conditions in a proceeding under the Act. The amount due under the recognisance is then enforceable as a debt. The money goes to the Commonwealth. This is a civil debt recovery mechanism, not a criminal penalty, so it avoids the protections of criminal procedure.

Enforcement of fees. The requesting party must pay the witness fees and allowances. If they fail to do so, the witness has a right to be paid, but the Regulations do not specify a mechanism for enforcement by the witness. The witness may need to apply to the Magistrate or Judge for an order directing payment, or to the Commonwealth if the requesting party is a Commonwealth agency.

The Mutual Assistance in Criminal Matters Act 1987. The Regulations are made under and exist solely to support the Act. The Act contains the substantive powers to make requests, the grounds for refusal, and the overarching framework. The Regulations do not override any provision of the Act; they fill procedural gaps. For example, the Act may provide for legal professional privilege or the right against self‑incrimination, and those protections would apply despite the Regulations’ silence on those points. Section 39 of the Act is referenced in the warrant form; it deals with arrangements for Magistrates to perform functions.

Criminal Code. Regulation 2A expressly applies Chapter 2 of the Criminal Code to offences against the Regulations. This means the standard criminal responsibility principles (fault elements, mistake of fact, intoxication, etc.) apply to the offences in regulations 8 and 9. Strict liability for the s8(1)(a) offence is provided for, but other offences carry the default fault element of intention or recklessness. The note in the text clarifies that strict liability is provided, and the Criminal Code s6.1 applies.

State and Territory court procedures. The Regulations incorporate state and territory procedures for witness fees (regulation 6 refers to fees as if attending before a court of summary jurisdiction in that State or Territory) and for the forms of oaths (regulation 7(3) refers to those used in the Supreme Court of that State or Territory). Similarly, the protection and immunity provisions (regulation 10) mirror Supreme Court protections in that State or Territory. This creates variation across jurisdictions: a witness in New South Wales may have different fee scales and oath wording than one in Western Australia. The Regulations do not attempt to create a uniform federal standard, relying instead on local law for details.

Bail legislation. Regulation 11 on recognizance forfeiture interacts with the bail laws of each State or Territory. A person admitted to bail in relation to a proceeding under the Act will have been granted bail under the applicable State or Territory bail legislation, which sets the conditions. The Regulations then provide a separate forfeiture process triggered by breach, which may coexist with the state enforcement mechanisms. The court enforcing payment under regulation 11(2) is a court having jurisdiction in the State or Territory where the recognisance was declared forfeited.

Service and execution of process. Service of a summons may be effected in any State or Territory under regulation 3(2), and a warrant of apprehension may be executed in any State or Territory under regulation 5(3). This overcomes the usual territorial limitations on state process, relying on the Commonwealth’s legislative power. However, the Regulations do not address the service of foreign process or the execution of foreign warrants; they only apply to domestic process issued under the Act.

The Regulations were made in 1988. The only amendment specifically referenced in the current text is the Crimes Legislation Amendment (International Crime Cooperation and Other Measures) Regulations 2018. That instrument amended subregulation 3(3) and regulation 5. Regulation 12 of the current compilation provides that those amendments apply to summonses issued before, on or after the commencement of the amending regulation. This is a retrospective application, meaning even if a summons was issued before the amendment came into force, the amended provisions apply to it. The exact content of the original subregulation 3(3) and regulation 5 is not given in the source, but the amendment likely expanded the substituted service power (subregulation 3(3) now allows a Magistrate or eligible Judge to order steps to bring the document to the person’s notice, and to order deemed service) and modified the warrant procedure (regulation 5). The retrospective operation means that a person who was served before the amendment could still be affected by the new procedures, for example a substituted service order made after commencement that relates to an earlier summons. This raises rule of law concerns: a person’s obligations are altered after the fact. However, the amendment is procedural, not substantive, so it may be within the scope of the regulation‑making power.

No other amendment history is provided in the source. It is likely that earlier amendments existed (e.g. changes to penalty unit references, updates to forms, or technical corrections), but they are not mentioned. The absence of a full amendment table means the reader cannot easily determine the current law’s provenance. Practitioners would need to check the Federal Register of Legislation for the full history.

The source text provides no litigation history. No cases are cited or referenced in the regulations themselves. This does not mean the Regulations have never been litigated; rather, the drafter chose not to include case references. Typical litigation that might arise includes: challenges to the validity of a summons issued under the Act, disputes over whether service was properly effected, arguments about reasonable excuse for non‑attendance or non‑production, claims of legal professional privilege or self‑incrimination (though the Regulations do not address these, the Act or general law would be invoked), and disputes over the amount of fees and allowances. There may also be cases dealing with the forfeiture of recognizances under regulation 11. A search of case law would be needed to identify any decisions. From a practitioner’s perspective, the lack of cited authority means caution is warranted: no judicial gloss exists in the regulation text, so each provision must be read on its own terms. The retrospective application provision (regulation 12) could be litigated on constitutional grounds if it is found to interfere with vested rights. The High Court has considered retrospectivity in similar delegated legislation; the outcome would depend on the scope of the regulation‑making power in the Act.

Strict liability for failure to attend. The offence in regulation 8(1)(a) is strict liability. This means the prosecution does not have to prove intent or recklessness; the person charged must prove a reasonable excuse on the balance of probabilities. A person who honestly but mistakenly believed they were not required to attend (e.g. because they thought the summons was invalid or service defective) would still be liable unless that belief amounts to a reasonable excuse. The standard of “reasonable excuse” is objective, so mere misunderstanding is unlikely to suffice.

Deemed service without actual knowledge. Regulation 3(4) allows a court to order that a document be taken to have been served on the happening of a specified event or after a specified time. This can occur without the person ever reading or receiving the summons. If the person then fails to attend, they can be arrested and charged even though they never knew about the summons. The Regulations do not require the person to have actual knowledge; constructive notice is enough. This is a significant trap for individuals who change address or do not access the method of substituted service (e.g. a notice in a newspaper or affixed to a door).

No cap on fees for the requesting party. Regulation 6(3) makes the requesting party liable for witness fees and allowances. While the default is the court of summary jurisdiction scale, the Magistrate or Judge may direct “such fees and allowances as the Magistrate or Judge directs” in special circumstances. This gives the judicial officer broad discretion to order higher amounts, potentially creating an open‑ended liability for the requesting party. There is no limit or guideline on what constitutes special circumstances.

Retrospective operation of 2018 amendments. As noted, regulation 12 applies the amendments to summonses issued before the commencement date. A person who was summonsed in 2017 could find themselves subject to amended substituted service and warrant provisions in 2018. This could affect the enforceability of the earlier summons and the validity of any subsequent warrant. The person may have relied on the old law to plan their defence or decide not to attend, only to find the new law applies.

Offences for “words calculated to bring the Magistrate or Judge into disrepute”. Regulation 9(d)(ii) criminalises speech that is “calculated” to bring the judicial officer into disrepute. The term “calculated” likely means “likely to” rather than “intended to”. This broad language could capture legitimate criticism or reporting about the proceedings, especially if made in a public forum. The 10 penalty unit maximum is modest, but the mere existence of the offence could chill public discussion of mutual assistance proceedings, which often involve sensitive foreign relations matters.

No explicit protection for self‑incrimination or privilege. While the Act itself may provide such protections, the Regulations do not mention them. A witness who refuses to answer a question on the ground that the answer might incriminate them does so at their own risk; if the Magistrate or Judge does not accept the claim, the witness may be prosecuted under regulation 8(1)(b) for refusing to answer. The witness must rely on the Act or general law, and the onus is on the witness to assert and justify the privilege.

Interstate arrest without prior hearing. Regulation 5 allows a warrant to be issued and executed in any State or Territory without the person having an opportunity to be heard before the warrant issues. The person is arrested and brought before a Magistrate or eligible Judge, who may then release them. The person cannot challenge the warrant before arrest, only after being detained. This is a significant deprivation of liberty on an ex parte basis.

Fees paid by requester, not the Commonwealth. The person at whose request the summons was issued pays the fees, not necessarily the Commonwealth. If a private party (e.g. a corporation) seeks assistance under the Act, it may be liable for witness costs. The Regulations do not define who “the person at whose request” is; it could be a foreign government, a law enforcement agency, or a private applicant if the Act allows. This creates uncertainty about financial exposure.

For a person served with a summons. The safest course is to attend at the specified place, date and time, and to bring all documents and articles required. If the person has a reasonable excuse for not attending (e.g. illness, no safe transport, conflicting legal obligation), they should seek legal advice immediately and, if possible, contact the issuing Magistrate or Judge to explain before the date. They should keep evidence of the excuse. If the person cannot attend, they should apply to the court for an amendment to the summons or for an excusal. Ignoring the summons is high risk: strict liability and arrest are real possibilities. The person should also claim any witness fees and allowances owed. If the person objects to answering a question or producing a document (e.g. on grounds of privilege or self‑incrimination), they should attend and state the objection on oath; the Magistrate or Judge will rule. The person should not simply refuse.

For the requesting party. Before applying for a summons, the requesting party should ensure it has a clear basis under the Act. It must bear the costs of service, paying or tendering a reasonable sum for expenses before a warrant can issue (regulation 5(1)(b)), and paying witness fees (regulation 6(3)). If service is difficult, it should apply to the Magistrate or Judge for substituted service under regulation 3(3), specifying the steps and seeking a deemed service order. The requesting party should also consider whether the witness may have valid claims of privilege or self‑incrimination and be prepared to address them. It should maintain records of all expenses paid to ensure proper deduction from later fees.

For legal practitioners representing a witness. Practitioners should verify that the summons is valid on its face (Form 1), that it has been properly served (personal service or valid substituted service), and that a reasonable sum for expenses has been paid or tendered. If not, the witness may have a defence to a charge. Practitioners should advise the witness of the strict liability risk for non‑attendance and the need to attend even if the summons appears flawed. If the witness has a reasonable excuse, the practitioner should document it and, if necessary, file an application to set aside or vary the summons. The practitioner should also advise on any applicable privileges and how to raise them during examination.

For Magistrates and eligible Judges. When exercising powers under the Regulations, judicial officers should follow the forms in the Schedule (Form 1 for summons, Form 2 for warrant). They should be satisfied of service and tender of expenses before issuing a warrant. When making substituted service orders, they should specify steps that are reasonably likely to bring the document to the person’s notice and should set a clear date for deemed service. They should also exercise discretion in directing fees and allowances in special circumstances, balancing the interests of the witness and the requesting party.

For law enforcement executing warrants. Officers must ensure the warrant is in proper form and authorises the arrest. The warrant may be executed in any State or Territory (regulation 5(3)). The person should be brought as soon as practicable before a Magistrate or eligible Judge and detained no longer than necessary. The officer should also advise the person of the reason for their arrest.