Mutual Assistance in Criminal Matters (Republic of Korea) Regulations

The Mutual Assistance in Criminal Matters (Republic of Korea) Regulations 1993 (Cth) are a legislative instrument that applies the Mutual Assistance in Criminal Matters Act 1987 (Cth) to the Republic of Korea. This application is subject to the specific terms, conditions, and limitations set out in the bilateral treaty signed by Australia and the Republic of Korea in Canberra on 25 August 1992. The full English text of this treaty is scheduled to the regulations. The primary mechanism of this regulatory framework is to establish a formal, predictable, and legally binding pathway for the exchange of evidence and mutual legal assistance in criminal investigations and prosecutions between the two jurisdictions.

Under Article 1 of the scheduled treaty, the scope of assistance is broad. It includes the taking of evidence, the obtaining of voluntary statements, the provision of official and public documents, the delivery of material and exhibits, the execution of search and seizure requests, the restraint and forfeiture of the proceeds of crime, the service of judicial documents, and seeking the consent of individuals to travel to the requesting state to assist with investigations. Crucially, the regulations expand the scope of criminal matters to explicitly encompass offences related to taxation, customs duties, foreign exchange controls, and other revenue matters. This inclusion ensures that complex financial and white-collar crimes can be investigated across borders. However, the instrument draws clear limits on its own operation. Under Article 1(4), mutual assistance does not extend to the extradition of persons, the domestic execution of foreign criminal judgments (except as permitted by local law), or the transfer of prisoners to serve sentences. The regulations substitute informal, discretionary police-to-police cooperation with a structured, executive-managed process that provides legal certainty to state agencies and individuals alike.

Statutory Rules 1993 No. 3051

__________________

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

Dated 17 December 1993.

BILL HAYDEN

Governor-General

By His Excellency’s Command,

M. LAVARCH

Attorney-General

____________

Citation

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

Commencement

These Regulations commence on 19 December 1993.

Interpretation

In these Regulations:

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

“the Treaty” means the Treaty between Australia and the Republic of Korea done at Canberra on 25 August 1992 (being the Treaty a copy of the English text of which is set out in the Schedule).

Application of the Act

The Act applies in relation to the Republic of Korea subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to the Treaty.

_______________________________________________________

SCHEDULE Regulations 3 and 4

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

Australia and the Republic of Korea,

Desiring to improve the effectiveness of both countries in the prevention, investigation, prosecution and suppression of crime through cooperation and mutual assistance in criminal matters,

Have agreed as follows:

Article 1

Scope of application

The Contracting Parties shall, in accordance with this Treaty, grant to each other assistance in investigations or proceedings in respect of criminal matters.
Criminal matter includes matters connected with offences against a law relating to taxation, customs duties, foreign exchange control and other revenue matters.
Such assistance shall consist of:

(a) taking of evidence and obtaining of statements of persons;

(b) provision of documents and other records;

(d) location and identification of persons;

(e) execution of requests for search and seizure;

(f) measures to assist in relation to proceeds of crime;

(g) seeking the consent of persons to be available to give evidence or to assist in investigations in the Requesting State, and where such persons are in custody arranging for their temporary transfer to that State;

(h) service of documents; and

(i) other assistance consistent with the objects of this Treaty which is not inconsistent with the law of the Requested State.

Assistance shall not include:

(a) the extradition of any person;

(b) the execution in the Requested State of criminal judgments imposed in the Requesting State except to the extent permitted by the law of the Requested State and this Treaty; and

Article 2

Other assistance

This Treaty shall not derogate from obligations subsisting between the Contracting Parties whether pursuant to other treaties or arrangements or otherwise nor prevent the Contracting Parties providing assistance to each other pursuant to other treaties or arrangements or otherwise.

Article 3

Central authorities

The Contracting Parties shall each appoint a Central Authority to transmit and receive requests for the purpose of this Treaty. The Central Authority of Australia shall be the Attorney-General of the Commonwealth or the Attorney-General’s Department if so designated by the Attorney-General and the Central Authority of the Republic of Korea shall be the Minister of Justice or an official designated by that Minister. On entry into force of this Treaty, each Contracting Party shall inform the other of the title of its respective Central Authority. Each Contracting Party shall inform the other of any change in its Central Authority.
The Central Authorities shall communicate through the diplomatic channel or directly with one another for the purposes of this Treaty.

Article 4

Refusal of assistance

Assistance may be refused if:

(a) the request relates to the prosecution or punishment of a person for an offence that is regarded by the Requested State as:

(i) an offence of a political character; or

(ii) an offence under military law of the Requested State which is not also an offence under the ordinary criminal law of the Requested State;

(b) the request relates to the prosecution of a person for an offence in respect of which, in the Requested or Requesting State, the offender has been finally acquitted or pardoned or has served the sentence imposed;

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

(d) the Requested State is of the opinion that the request, if granted, would prejudice its sovereignty, security, national interest or other essential interests;

(e) the request relates to the prosecution or punishment of a person for an offence where the acts or omissions alleged to constitute that offence would not, if they had taken place within the jurisdiction of the Requested State, have constituted an offence;

(f) the request relates to the prosecution or punishment of a person for an offence which, had it been committed in the Requested State, could no longer be prosecuted by reason of lapse of time or any other reason; or

(g) provision of the assistance sought could prejudice an investigation or proceeding in the Requested State or prejudice the safety of any person.

Before refusing to grant a request for assistance the Requested State shall consider whether assistance may be granted subject to such conditions as it deems necessary. If the Requesting State accepts assistance subject to conditions, it shall comply with those conditions.

Article 5

Contents of requests

Requests for assistance shall include:

(a) the purpose of the request and a description of the assistance sought;

(b) the name of the competent authority conducting the investigation or proceedings to which the request relates;

(d) except in cases of request for service of documents, a description of the acts or omissions or matters alleged to constitute the offence;

(e) the court order, if any, sought to be enforced and a statement to the effect that it is a final order;

(f) details of any particular procedure or requirement that the Requesting State wishes to be followed, including a statement as to whether sworn or affirmed evidence or statements are required;

(g) the requirements, if any, of confidentiality and the reasons therefore; and

(h) specification of any time limit within which compliance with the request is desired.

Requests for assistance, to the extent necessary and insofar as possible, shall also include:

(a) the identity, nationality and location of the person or persons who are the subject of or who may have information relevant to the investigation or proceeding;

(b) a description of the information, statement or evidence sought;

(c) a description of the documents, records or articles of evidence to be produced as well as a description of the appropriate person to be asked to produce them; and

(d) information as to the allowances and expenses to which a person appearing in the Requesting State will be entitled.

Requests, supporting documents and other communications made pursuant to this Treaty shall be in the language of the Requesting State and accompanied by a translation into the language of the Requested State.
If the Requested State considers that the information contained in the request is not sufficient in accordance with this Treaty to enable the request to be dealt with, it may request additional information.

Article 6

Execution of requests

Requests for assistance shall be carried out in accordance with the law of the Requested State and, insofar as it is not incompatible with that law, in the manner requested by the Requesting State.
The Requested State may postpone the delivery of material requested if such material is required for proceedings in respect of criminal or civil matters in that State. The Requested State shall, upon request, provide certified copies of documents.
The Requested State shall promptly inform the Requesting State of circumstances, when they become known to the Requested State, which are likely to cause a significant delay in responding to the request.
The Requested State shall promptly inform the Requesting State of a decision of the Requested State not to comply in whole or in part with a request for assistance and the reason for that decision.

Article 7

Return of material to requested state

Where required by the Requested State, the Requesting State shall return the material provided under this Treaty when no longer needed for the relevant investigation or proceeding.

Article 8

Protecting confidentiality and restricting use of

evidence and information

The Requested State, if so requested, shall keep confidential the application for assistance, the contents of a request and its supporting documents, and the fact of granting of such assistance. If the request cannot be executed without breaching confidentiality, the Requested State shall so inform the Requesting State which shall then determine whether the request should nevertheless be executed.
The Requesting State, if so requested, shall keep confidential information and evidence provided by the Requested State, except to the extent that the evidence and information is needed for the investigation and proceeding described in the request.
The Requesting State shall not use information or evidence obtained, nor anything derived from either, for purposes other than those stated in a request without the prior consent of the Requested State.

Article 9

Service of documents

The Requested State shall effect service of documents which are transmitted to it for this purpose by the Requesting State.
A request to effect service of a document requiring the appearance of a person shall be made to the Requested State not less than forty-five days before the date on which the appearance is required. In urgent cases, the Requested State may waive this requirement.
The Requested State may effect service of any document by mail or, if the Requesting State so requests, in any other manner required by the law of the Requesting State which is not inconsistent with the law of the Requested State.
The Requested State shall forward to the Requesting State proof of service of the documents. If service cannot be effected, the Requesting Party shall be so informed and advised of the reasons.

Article 10

Taking of evidence

Where a request is made for the purpose of proceedings in relation to a criminal matter in the Requesting State, the Requested State shall, upon request, take the evidence of witnesses for transmission to the Requesting State.
For the purposes of this Treaty, the giving or taking of evidence shall include the production of documents, records or other material.
For the purposes of requests under this Article the Requesting State shall specify the subject matter about which persons are to be examined, including any questions to be put.
To the extent not prohibited by the law of the Requested State, judges or officials of the Requesting State and other persons involved in the investigation or proceedings shall be permitted to be present at the execution of the request and to participate in the proceedings in the Requested State. The right to participate in the proceedings shall include the right of any person present to pose questions through the judges or officials of the Requested State.
A person who is required to give evidence in the Requested State under this Article may decline to give evidence where the law of the Requested State permits that witness to decline to give evidence in similar circumstances in proceedings originating in the Requested State.
Where a person who is required to give evidence in the Requested State under this Article claims that there is a right to decline to give evidence in the proceedings in the Requesting State, referred to in paragraph 1, the Requested State shall either:

(a) request the Central Authority of the Requesting State to provide a certificate as to the existence of that right; or

(b) nevertheless require the person to give the evidence and transmit the evidence to the Requesting State for its determination as to the existence of the right claimed by the person.

Where the Requested State receives a certificate from the Requesting State as to the existence of the right claimed by the person, that certificate, in the absence of evidence to the contrary, shall provide sufficient evidence as to the existence of the right.

Article 11

Obtaining of statements of persons

The Requested State shall, upon request, endeavour to obtain statements of persons for the purpose of an investigation or proceeding in relation to a criminal matter in the Requesting State.
For the purposes of requests under this Article, the Requesting State shall specify the subject matter about which it seeks statements from persons including any questions which it seeks to be put to the person.

Article 12

Availability of persons in custody to give evidence or

to assist investigations

A person in custody in the Requested State may, at the request of the Requesting State, be temporarily transferred to the Requesting State to assist investigations or to give evidence.
The Requested State shall not transfer a person in custody to the Requesting State unless the person consents to that transfer.
While the person transferred is required to be held in custody under the law of the Requested State, the Requesting State shall hold that person in custody and shall return that person in custody to the Requested State at the conclusion of the matter in relation to which transfer was sought under paragraph 1 or at such earlier time as the person’s presence is no longer required.
Where the Requested State advises the Requesting State that the transferred person is no longer required to be held in custody, that person shall be set at liberty and be treated as a person referred to in Article 13.
For the purposes of this Article, the person transferred shall receive credit for service of any sentence imposed in the Requested State for time served in the custody of the Requesting State.

Article 13

Availability of other persons in custody to give evidence or

to assist investigations

The Requesting State may request the assistance of the Requested State in obtaining a person’s consent to:

(a) appear as a witness in proceedings in relation to a criminal matter in the Requesting State unless that person is the person charged; or

(b) assist investigations in relation to a criminal matter in the Requesting State.

The Requested State shall, if satisfied that satisfactory arrangements for that person’s security will be made by the Requesting State, invite the person to consent to appear as a witness in proceedings or to assist in the investigations. The Requested State shall promptly inform the Requesting State of that person’s response.

Article 14

Safe conduct

Subject to paragraph 2, where a person is in the Requesting State pursuant to a request made under Articles 12 or 13:

(a) that person shall not be detained, prosecuted or punished in the Requesting State, for any offence, nor be subject to any civil suit, being a civil suit to which the person could not be subjected if the person were not in the Requesting State, in respect of any act or omission which preceded the person’s departure from the Requested State; and

(b) that person shall not, without that person's consent, be required to give evidence in any proceeding or to assist any investigation other than the proceeding or investigation to which the request relates.

Paragraph 1 shall cease to apply if that person, being free to leave, has not left the Requesting State within a period of fifteen days after that person has been officially notified that that person’s presence is no longer required or, having left, has voluntarily returned.
A person who does not consent to a request pursuant to Articles 12 or 13 shall not, by reason thereof, be liable to any penalty or be subjected to any coercive measure notwithstanding any contrary statement in the request or in any document accompanying the request.

Article 15

Provision of publicly available and official documents

The Requested State shall provide copies of documents and records that are open to public access as part of a public register or otherwise, or that are available for purchase by the public.
The Requested State may provide copies of any official document or record in the same manner and under the same conditions as such document or record may be provided to its own law enforcement and judicial authorities.

Article 16

Certification and authentication

Documents or materials supporting a request for assistance involving the use of compulsory measures or the forfeiture of proceeds of crime shall be authenticated in accordance with paragraph 2. Documents or materials furnished in response to a request shall be similarly authenticated if requested.
Documents and materials are authenticated for the purposes of this Treaty if:

(a) they purport to be signed or certified by a judge, magistrate or other officer in or of the State sending the document; and

(b) they purport to be sealed with an official seal of the State sending the document or of a Minister, a Department or an officer of the Government, of that State.

Article 17

Search and seizure

The Requested State shall, insofar as its law permits, carry out requests for search and seizure and delivery of material to the Requesting State provided the information supplied, including additional information requested pursuant to paragraph 4 of Article 5, if any, would justify such action under the law of the Requested State.
The Requested State shall provide such information as may be required by the Requesting State concerning the result of any search, the place of seizure, the circumstances of seizure, and the subsequent custody of the material seized.
The Requesting State shall observe any conditions imposed by the Requested State in relation to any seized material which is delivered to the Requesting State, including any terms and conditions to protect third party interests in the material.

Article 18

Proceeds of crime

The Requested State shall, upon request, endeavour to ascertain whether any proceeds of a crime are located within its jurisdiction and shall notify the Requesting State of the results of its inquiries. In making the request, the Requesting State shall notify the Requested State of the basis of its belief that such proceeds may be located in its jurisdiction.
Where, pursuant to paragraph 1, suspected proceeds of crime are found, the Requested State shall take such measures as are permitted by its law to restrain and forfeit such proceeds.
In the application of this Article, the rights of bona fide third parties shall be respected under the law of the Requested State.
The Requested State, when in control of forfeited proceeds, shall deal with those proceeds in accordance with its law.

Article 19

Subsidiary arrangements

The Central Authorities of the Contracting Parties may enter into subsidiary arrangements to implement this Treaty in accordance with the laws of both Contracting Parties.

Article 20

Representation and expenses

Unless otherwise provided in this Treaty the Requested State shall make all necessary arrangements for the representation of the Requesting State in any proceedings arising out of a request for assistance and shall otherwise represent the interests of the Requesting State.
The Requested State shall meet the cost of fulfilling the request for assistance except that the Requesting State shall bear:

(a) the expenses associated with conveying any person to or from the territory of the Requested State, and any fees, allowances or expenses payable to that person whilst in the Requesting State pursuant to a request under Articles 9, 12 or 13;

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

Article 21

Consultation

The Contracting Parties shall consult promptly, at the request of either, concerning the interpretation, the application or the carrying out of this Treaty either generally or in relation to a particular case.

Article 22

Entry into force and termination

This Treaty shall enter into force thirty days after the date on which the Contracting Parties have notified each other in writing that their respective requirements for the entry into force of this Treaty have been complied with.
This Treaty shall apply to requests whether or not the relevant acts or omissions occurred prior to this Treaty entering into force.
Either Contracting Party may terminate this Treaty by notice in writing at any time and it shall cease to be in force six months after the day on which notice is given.

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

DONE at CANBERRA on this TWENTY-FIFTH day of August One thousand nine hundred and ninety-two in the English and Korean languages, both texts being equally authentic.

FOR AUSTRALIA: FOR THE REPUBLIC OF KOREA:

MICHAEL DUFFY KIM KI-CHOON

_____________________________________________

Note: NOTE

Note: 1. Notified in the Commonwealth of Australia Gazette on 25 November 1993.

1 Mutual Assistance in Criminal Matters (Republic of Korea) Regulations

Statutory Rules 1993 No. 3051

__________________

Mutual Assistance in Criminal Matters (Republic of Korea) Regulations

Dated 17 December 1993.

BILL HAYDEN

Governor-General

By His Excellency’s Command,

M. LAVARCH

Attorney-General

____________

Citation

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

Commencement

These Regulations commence on 19 December 1993.

Interpretation

In these Regulations:

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

“the Treaty” means the Treaty between Australia and the Republic of Korea done at Canberra on 25 August 1992 (being the Treaty a copy of the English text of which is set out in the Schedule).

Application of the Act

The Act applies in relation to the Republic of Korea subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to the Treaty.

_______________________________________________________

SCHEDULE Regulations 3 and 4

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

Australia and the Republic of Korea,

Desiring to improve the effectiveness of both countries in the prevention, investigation, prosecution and suppression of crime through cooperation and mutual assistance in criminal matters,

Have agreed as follows:

Article 1

Scope of application

The Contracting Parties shall, in accordance with this Treaty, grant to each other assistance in investigations or proceedings in respect of criminal matters.
Criminal matter includes matters connected with offences against a law relating to taxation, customs duties, foreign exchange control and other revenue matters.

Several core concepts define the operation of the regulations and the scheduled treaty. The first is the "Central Authority" mechanism established under Article 3. Rather than relying on traditional, slow-moving diplomatic channels, the treaty designates specific administrative bodies to manage all requests directly. For Australia, the Central Authority is the Attorney-General of the Commonwealth or the Attorney-General’s Department. For the Republic of Korea, it is the Minister of Justice or a designated official. These authorities act as gatekeepers, ensuring requests comply with domestic law and treaty requirements before triggering local coercive powers.

Another fundamental concept is "Dual Criminality," which appears as a discretionary ground for refusal under Article 4(1)(e). This concept requires that the conduct underlying the foreign request would also constitute a criminal offence if it had occurred within the jurisdiction of the requested state. If this requirement is not met, the requested state may refuse to execute the request, protecting individuals from foreign prosecution for conduct that is entirely legal in their home jurisdiction.

The "Rule of Specialty," set out in Article 8(3), is another critical concept. It restricts the requesting state from using any evidence, information, or derived material for any purpose other than the specific investigation or proceeding described in the original request, unless the requested state provides prior consent. This prevents foreign authorities from launching fishing expeditions or using evidence gathered for a minor regulatory matter to prosecute a politically motivated charge.

Finally, the concept of "Safe Conduct" under Article 14 provides temporary immunity from local prosecution, detention, and civil suit for prior acts to individuals who consent to travel to the requesting state to assist in investigations or give evidence. This concept ensures that individuals can cooperate with foreign judicial processes without fear of legal ambush.

The regulations directly affect several key groups across both Australia and the Republic of Korea. First, corporate entities, financial institutions, and professional advisors are heavily affected. Because the treaty specifically covers tax, customs, and foreign exchange control matters, banks, accounting firms, and multinational corporations operating in both jurisdictions are frequent targets for document production requests under Article 1(3)(b). These entities must bear the administrative and compliance costs of searching, reviewing, and disclosing confidential transaction data, customer records, and corporate files when served with domestic production orders or search warrants.

Second, the regulations affect individual suspects and defendants under investigation by either South Korean or Australian law enforcement. The retroactivity clause in Article 22(2) means that individuals cannot escape the reach of the treaty by pointing to the historical nature of their actions, as the treaty applies to requests regardless of whether the relevant acts or omissions occurred before the regulations commenced.

Third, the regulations affect witnesses and third parties who are not themselves suspects. Under Article 10 and Article 11, individuals in Australia may be compelled to give evidence or provide formal statements for use in Korean proceedings. Prisoners in custody in Australia can also be affected; under Article 12, they may be temporarily transferred to South Korea to assist with investigations, subject to their consent.

Fourth, the regulations affect innocent third parties who hold property or assets that are suspected of being the proceeds of crime. Under Article 18, the requested state must take measures to restrain and forfeit such proceeds, which can lead to significant commercial disruption and legal expenses for bona fide third parties who must litigate in domestic courts to protect their proprietary interests.

The regulations and the scheduled treaty establish a balanced framework of administrative duties for state authorities and protective rights for individuals. Central Authorities bear several strict duties. Under Article 6, they must carry out requests in accordance with domestic law and, where possible, in the manner requested by the foreign state. They must promptly notify the requesting state of any significant delays (Article 6(3)) or any decision to refuse cooperation (Article 6(4)). Furthermore, under Article 20, the requested state has a duty to arrange for the legal representation of the requesting state in any local proceedings and to bear the primary costs of executing the request, subject to specific carve-outs for travel, custodial escorts, and exceptional expenses.

Conversely, individuals and the requested state possess robust rights of refusal and protection. Article 4(1) grants the requested state the right to refuse assistance on several grounds, including if the request relates to a political or purely military offence, if it violates the principle of double jeopardy, or if there are substantial grounds to believe the prosecution is motivated by discrimination based on race, sex, religion, nationality, or political opinion. Crucially, a request can be refused if it prejudices the sovereignty, security, national interest, or other essential interests of the requested state.

Witnesses also enjoy significant rights. Under Article 10(5), a person compelled to testify in Australia may decline to give evidence if domestic law permits a witness to decline in similar domestic proceedings, preserving crucial common law privileges such as the privilege against self-incrimination. If a witness claims a privilege exists under the law of the requesting state, Article 10(6) establishes a procedural right to have that claim tested, either via a foreign government certificate or by having the evidence transmitted under seal for determination by the foreign court. Additionally, Article 14(3) guarantees that individuals who decline to travel to assist a foreign investigation cannot be subjected to any penalty or coercive measures.

The regulations do not establish an independent criminal code or set out bespoke penalties. Instead, they act as a jurisdictional trigger that activates the compulsory powers and enforcement mechanisms contained in the Mutual Assistance in Criminal Matters Act 1987 (Cth) and other domestic laws. Once the Australian Attorney-General accepts a request from the Republic of Korea, local enforcement agencies utilize standard domestic machinery to compel compliance.

For instance, if a request for search and seizure under Article 17 is authorised, Australian police execute standard domestic search warrants. Anyone who obstructs the execution of these warrants, conceals evidence, or provides false information to officers faces the standard criminal penalties prescribed under the Crimes Act 1914 (Cth) or state-based criminal legislation, including imprisonment and substantial fines. Similarly, if a witness is summoned to give evidence before an Australian magistrate under Article 10, a failure to appear, a refusal to answer questions without a lawful excuse, or the provision of false testimony under oath is treated as contempt of court or perjury, carrying severe domestic criminal penalties.

For asset confiscation under Article 18, the enforcement mechanism relies on the Proceeds of Crime Act 2002 (Cth). When a Korean request to restrain suspected proceeds of crime is approved, the Commonwealth Director of Public Prosecutions can apply to an Australian court for restraining and forfeiture orders. A breach of these orders, such as attempting to transfer, conceal, or dissipate frozen assets, constitutes a serious criminal offence under domestic law, subjecting the offender to immediate prosecution, potential imprisonment, and heavy corporate penalties. The treaty also relies on diplomatic and international enforcement; a material breach of the rule of specialty under Article 8(3) by a requesting state would likely result in the immediate suspension of future mutual assistance.

The regulations occupy a specific niche within the hierarchy of Australian federal law, interacting dynamically with several key statutes. As subsidiary legislation made under the Mutual Assistance in Criminal Matters Act 1987 (Cth), their primary role is to modify the application of the parent Act in relation to the Republic of Korea. Under regulation 4, the provisions of the parent Act apply subject to the limitations, conditions, and qualifications set out in the scheduled treaty. This means that if a treaty provision offers greater protection to an individual or imposes a stricter condition than the parent Act, the treaty provision prevails.

The asset recovery and proceeds of crime provisions of the treaty (Article 18) interact directly with domestic proceeds of crime legislation, primarily the Proceeds of Crime Act 2002 (Cth). When the Republic of Korea requests the restraint or forfeiture of assets, the Australian Central Authority must apply for orders using the domestic statutory pathways. The Australian courts will apply domestic standards of proof and procedural rules, while ensuring that the treaty's mandate to protect bona fide third-party rights (Article 18(3)) is respected.

There is also a clear boundary between these regulations and laws governing other forms of international cooperation. Article 1(4) explicitly carves out extradition and the transfer of prisoners. Consequently, requests for extradition must be made under the Extradition Act 1988 (Cth), and prisoner transfers are governed by the International Transfer of Prisoners Act 1997 (Cth), neither of which are influenced by the 1993 Regulations.

Finally, the collection and transmission of personal data and corporate records under the treaty must interact with the Privacy Act 1988 (Cth). While the disclosure of personal information to a foreign sovereign is heavily restricted, disclosures made pursuant to a formal warrant or statutory production order issued under the mutual assistance framework are generally permitted under domestic privacy law exceptions.

The Mutual Assistance in Criminal Matters (Republic of Korea) Regulations 1993 (Cth) were made on 17 December 1993 and commenced on 19 December 1993, following their notification in the Commonwealth of Australia Gazette on 25 November 1993. The instrument has remained remarkably stable, with no direct textual amendments to the regulations themselves or to the scheduled treaty since their inception. This stability is typical of bilateral mutual assistance regulations of this era, which are designed to remain unchanged unless the underlying treaty is formally renegotiated or replaced by the contracting states.

However, the practical and legal operation of the regulations has undergone significant indirect amendment. Because the regulations apply the Mutual Assistance in Criminal Matters Act 1987 (Cth) subject to the treaty, any legislative amendments made by the Australian Parliament to the parent Act automatically alter how the regulations function in practice. Over the decades, the parent Act has been amended multiple times, notably in 1996, 2001, 2012, and 2018. These statutory updates have modernized the tools available to execute South Korean requests in Australia. For example, amendments introducing video-link technology, expanding the definition of "proceeds of crime" to cover modern financial instruments, and streamlining the execution of search warrants have all been integrated into the mutual assistance framework. Consequently, while the text of the 1993 regulations remains frozen in time, their actual operational application is highly dynamic and must be analysed through the lens of the current version of the parent Act.

While there is scarce published judicial authority specifically interpreting the Mutual Assistance in Criminal Matters (Republic of Korea) Regulations 1993, the regulations are subject to a well-established body of Australian administrative and constitutional law jurisprudence governing mutual assistance instruments. Decisions made by the Australian Attorney-General or departmental officials to grant assistance or issue search warrants under the regulations are administrative decisions. As such, they are subject to judicial review in the Federal Court of Australia or the High Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and section 39B of the Judiciary Act 1903 (Cth).

Litigation involving identical bilateral mutual assistance regulations has established several critical principles. First, the courts have ruled that they will not review the merits of the foreign prosecution or the underlying criminal charges in the requesting state. The judicial role is strictly limited to ensuring that the statutory preconditions of the parent Act and the relevant regulation have been legally satisfied. Second, challenge vectors frequently target the validity of search warrants and production orders. Australian courts have struck down warrants that are too broad, vague, or fail to specify the foreign offences with sufficient clarity, as such warrants violate the common law protection against general searches. Third, litigation often arises regarding the application of the discretionary grounds for refusal, such as the double criminality test under Article 4(1)(e) or whether there are substantial grounds to believe the request is politically motivated. Defence counsel frequently use judicial review to delay the transmission of evidence, arguing that the executive failed to take into account relevant considerations or that the transfer of material would violate procedural fairness.

For legal practitioners and corporate officers, the regulations contain several procedural traps that require careful navigation. The first major "gotcha" is the retrospectivity clause in Article 22(2). The treaty applies to requests regardless of whether the relevant criminal acts or omissions occurred before the treaty entered into force in 1993. This means that historical business arrangements, financial transactions, or communications that occurred decades ago are entirely fair game for South Korean prosecutors, and entities cannot resist a warrant on the grounds of temporal irrelevance.

A second critical trap is the 15-day safe conduct expiry under Article 14(2). While witnesses who travel to the requesting state are protected from arrest, prosecution, or civil suits for prior acts, this immunity is highly conditional. The protection completely expires if the person, being free to leave, remains in the requesting state for more than 15 days after being officially notified that their presence is no longer required. Any logistical delay, business meeting, or personal travel planned after giving evidence can inadvertently strip the witness of their immunity, exposing them to immediate arrest or service of civil process.

A third trap involves the certificate of foreign rights under Article 10(6) and (7). If a witness testifying in Australia claims an evidentiary privilege under South Korean law, the Australian authorities can simply request a certificate from the Korean Central Authority. By law, this certificate is accepted as sufficient evidence of the existence or non-existence of the right, in the absence of evidence to the contrary. Because this certificate is typically drafted by the foreign state department or prosecution service, rebutting it requires the witness to quickly produce highly authoritative, independent expert evidence on Korean criminal procedure, which can be an exceptionally difficult and expensive hurdle to clear under tight judicial timelines.

Finally, dual criminality under Article 4(1)(e) is merely a discretionary ground for refusal, not a mandatory one. The Australian Attorney-General is not legally required to refuse a request simply because the conduct is not an offence in Australia, leaving significant executive discretion to assist foreign prosecutions of regulatory or commercial infractions that are not recognized under Australian law.

Compliance with the regulations requires a structured, proactive approach by legal counsel representing individuals or corporate entities facing cross-border requests. The first step is to establish a clear timeline and verify the jurisdictional validity of the request. Ensure that any request, warrant, or production order has been formally routed through the Australian Central Authority (the Attorney-General's Department) and that a valid ministerial authorization has been issued under the Mutual Assistance in Criminal Matters Act 1987 (Cth). Direct communications from Korean law enforcement or prosecutors should be redirected to the formal Central Authority channel.

The second step is to conduct a rigorous analysis of the refusal criteria under Article 4. Legal counsel must scrutinise the foreign charges and the underlying conduct to identify potential grounds for a formal submission to the Attorney-General. This includes evaluating whether the conduct lacks dual criminality, whether the prosecution is time-barred, or whether it constitutes a political or military offence. Submissions should be prepared quickly, as the executive has broad discretion and must be persuaded to refuse or condition the assistance before coercive measures are executed.

The third step is to manage the compulsory process and protect client privileges. If a client is required to give evidence or produce documents under Article 10, counsel must identify and assert all available domestic privileges, such as legal professional privilege. If foreign law privileges are claimed, counsel must immediately engage South Korean legal experts to prepare for the certificate process under Article 10(6). Additionally, counsel should demand that the Australian Central Authority secure formal specialty undertakings under Article 8(3) to guarantee that the evidence produced will not be repurposed for other unauthorized investigations.

Finally, if a client consents to travel to South Korea as a witness, counsel must ensure that a formal safe conduct agreement under Article 14 is fully documented. Counsel must advise the client in writing of the strict 15-day safe conduct window and coordinate travel bookings to ensure the client departs South Korea immediately upon receiving official notification that their presence is no longer required. All compliance steps must be meticulously documented to mitigate risk and protect the client's legal and proprietary interests.

Mutual Assistance in Criminal Matters (Republic of Korea) Regulations

Plain English Summary

Deep Dive

What it does

Current sections

Mutual Assistance in Criminal Matters (Republic of Korea) Regulations

Source text: opening excerpt

1 Mutual Assistance in Criminal Matters (Republic of Korea) Regulations

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Who it affects

Key duties and rights

Penalties and enforcement

How it interacts with other laws

Amendment history

Litigation history

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How to comply