Mutual Assistance in Criminal Matters
(State of Israel) Regulations
I, The Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Mutual Assistance in Criminal Matters Act 1987.
Dated 22 August 1995.
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 (State of Israel) Regulations.
Commencement
These Regulations commence on 23 September 1995.
Interpretation
In these Regulations, unless the contrary intention appears:
“the Act” means the Mutual Assistance in Criminal Matters Act 1987.
Application of the Act
(1) The Act applies in relation to the State of Israel subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to the Treaty between Australia and the State of Israel on Mutual Legal Assistance in Criminal Matters done at Canberra in Australia on 24 August 1994.
(2) A copy of the English text of the Treaty is set out in the Schedule.
SCHEDULE Subregulation 4 (2)
TREATY BETWEEN
THE GOVERNMENT OF AUSTRALIA AND
THE GOVERNMENT OF THE STATE OF ISRAEL
ON MUTUAL LEGAL ASSISTANCE
IN CRIMINAL MATTERS
THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF THE STATE OF ISRAEL;
DESIRING to extend to each other the widest measure of co-operation to combat crime;
HAVE AGREED as follows:
Article 1
Scope of application
The Contracting Parties shall, in accordance with this Treaty, grant to each other assistance in criminal proceedings or investigations in respect of all criminal matters.
Such assistance shall consist of:
(a) taking of evidence and the obtaining of statements of persons, including the execution of letters rogatory;
(b) provision of documents and other records;
(c) location and identification of persons;
(d) execution of requests for search and seizure;
(e) measures to locate, restrain and forfeit the proceeds of crime;
(f) 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;
(g) service of documents; and
(h) 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
(c) the transfer of persons in custody to serve sentences.
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 or prevent the Contracting Parties providing assistance to each other pursuant to other treaties or arrangements or otherwise.
Article 3
Judicial authorities and
channels of communications
Requests for assistance shall emanate from a Judicial Authority of the Requesting State. A Judicial Authority means any court or tribunal of the Requesting State. In addition, for the purposes of this Treaty, the following authorities shall also be considered to be Judicial Authorities: for the State of Israel, the Attorney General or his delegate; and for Australia, the Attorney General or his delegate. Either State, with the consent of the other, may appoint another authority of that State to be considered to be a Judicial Authority for the purposes of this Treaty.
For Australia, the channel of communication shall be the Attorney General’s Department, Canberra. For Israel, the channel of communication shall be the Ministry of Foreign Affairs, Jerusalem. In addition, in cases of urgency, a duplicate copy of a request to Israel may be sent to the International Department of the State Attorney’s Office, Jerusalem.
Article 4
Refusal of assistance
Assistance shall 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; or
(b) 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.
Assistance may be refused if:
(a) 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;
(b) the request relates to the prosecution of a person for an offence in respect of which that person has been finally acquitted or pardoned or has served the sentence imposed;
(c) the Requested State is of the opinion that the request, if granted, would prejudice its sovereignty, security, public policy, national interest or other essential interests;
(d) the request relates to the prosecution or punishment of a person for an offence which is committed outside the territory of the Requesting State and the law of the Requested State does not provide for the punishment of an offence committed outside its territory in similar circumstances;
(e) the request concerns an offence which the Requested State considers a fiscal offence;
(f) provision of the assistance sought could prejudice a proceeding or investigation in the Requested State, prejudice the safety of any person or impose an excessive burden on the resources of that State; or
(g) the request relates to the prosecution or punishment of a person for an offence in respect of which the death penalty may be imposed or executed.
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, a description of the assistance sought, and a statement setting out the connection between the assistance sought and the criminal matter to which it relates;
(b) the name of the competent authority conducting the proceeding or investigation to which the request relates;
(c) a description of the nature of the criminal matter including a statement of the relevant laws;
(d) except in the case of a 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 therefor; 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 proceeding or investigation;
(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 shall be entitled.
Requests for assistance and all supporting documents emanating from Israel may be in English, or in Hebrew accompanied by a translation into English. Requests for assistance and all supporting documents emanating from Australia shall be in English accompanied by a translation in Hebrew. Original documents submitted with a request which are in a language other than English or Hebrew may be submitted in their original language accompanied by an appropriate translation as set out above.
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, provided that the execution of requests for assistance in investigations shall be granted to the extent permitted by the law of the Requested 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 may transmit certified copies of records or documents requested, unless the Requesting State expressly requests the transmission of originals, in which case the Requested State shall make every effort to comply with the request.
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 executing or 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.
The Requested State shall transmit documents, statements, evidence and transcripts obtained in executing a request under this Treaty in the language as produced in that State, unless otherwise specifically asked for by the Requesting State.
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 proceeding or investigation.
Article 8
Protecting confidentiality and restricting
use of evidence and information
The Requested State, if so requested, shall keep the application for assistance, the contents of a request and its supporting documents, and the fact of granting such assistance, confidential. 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 evidence and information provided by the Requested State, except to the extent that the evidence and information is needed for the proceeding or investigation described in the request.
The Requesting State shall not use evidence or information obtained, nor anything derived from either, for purposes other than those stated in a request without 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 45 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 registered 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 State shall be so informed and advised of the reasons.
Article 10
Taking of evidence
Where a request is made for the purpose of a proceeding in relation to a criminal matter, the Requested State shall 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 such persons.
The parties to the relevant proceedings in the Requesting State, their legal representatives and the representatives of the Requesting State, may appear and question the person being examined, subject to the law of the Requested State and subject to the permission of the Court if required.
The Requested State will endeavour, subject to its laws, to arrange for the production of a transcript or recording of the proceedings, using any form of technology including audio or video recorders.
A person who is required to give evidence in the Requested State under this Article may decline to give evidence if:
(a) the law of the Requested State permits that witness to decline to give evidence in similar circumstances in proceedings originating in the Requested State; or
(b) the law of the Requesting State permits that witness to decline to give evidence in such proceedings in the Requesting State. If any person claims that there is a right to decline to give evidence under the law of the Requesting State, the Attorney General of that State shall, upon request, transmit a certificate to the Requested State setting out the law of the Requesting State concerning the status of that right. If the person claiming such right does not submit evidence to the contrary, the certificate shall be considered sufficient evidence as to the status of that right.
Article 11
Obtaining statements of persons
The Requested State shall, upon request, endeavour to obtain statements of persons for the purpose of a proceeding or an investigation in relation to a criminal matter in the Requesting State.
For the purposes of requests under this Article, the Requesting State, in addition to the requirements set out in Article 5, shall specify the subject matter about which it seeks statements from persons, including any questions which it seeks to be put to the person.
To the extent permitted by the laws of the Requested State, a representative of the Requesting State may be present during the taking of a statement of a person pursuant to this Article.
Article 12
Location and identification of persons
The Requested State shall make thorough efforts to ascertain the location and identity of persons specified in the request and believed to be within the Requested State.
Article 13
Availability of persons in custody to give
evidence or to assist in 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 give evidence or to assist in investigations.
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 14.
A person set at liberty under paragraph 4 shall, for the period during which his presence is still required in the Requesting State, receive the same allowances and expenses as would be payable to a person referred to in Article 14, and shall be entitled to the cost of his return travel to the Requested State, if he returns to that State.
The Requesting State shall be responsible for making all necessary arrangements for the transit of such persons through third countries.
Article 14
Availability of other persons to give
evidence or assist in 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 in investigations in relation to a criminal matter in the Requesting State.
The Requested State, on behalf of the Requesting State, shall invite that person to consent to appear as a witness in proceedings or to assist in the investigations. Such person shall be under no compulsion to accept such an invitation.
Article 15
Safe conduct
Subject to paragraph 2, where a person is in the Requesting State pursuant to a request made under Articles 13 or 14:
(a) that person shall not be detained, prosecuted or punished in the Requesting State for any offence nor, to the extent permitted by the law of the Requesting State, 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 in 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, and having been provided with the means to leave, has not left the Requesting State within a period of thirty days after that person has been officially notified that that person’s presence is no longer required or, having left, has returned.
A person who does not consent to a request pursuant to Articles 13 or 14 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 16
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.
To the extent permitted by its laws, the Requested State may provide copies or extracts of documents or records needed in a criminal matter in the Requesting State, to the same extent that these may be available to its own authorities in a similar matter.
Article 17
Search and seizure
The Requested State shall, insofar as its law permits, carry out requests for search and seizure and for delivery of material to the Requesting State provided that 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.
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 prevent any dealing in, transfer or disposal of, those suspected proceeds of crime, pending a final determination in respect of those proceeds by a court of the Requesting State.
The Requested State shall, to the extent and in any manner permitted by its law, confiscate or forfeit the proceeds of crime located within its jurisdiction. For the purposes of this paragraph, the Requested State may either:
(a) submit an order of a court of the Requesting State to its competent authorities for enforcement; or
(b) initiate proceedings in its own courts with a view to obtaining an order forfeiting the proceeds. The Requesting State shall provide all necessary evidence in order to facilitate these proceedings.
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 shall retain the property referred to in paragraph 3.
In this Article “proceeds of crime” means any property suspected, or found by a court, to be property derived or realized, directly or indirectly, as a result of the commission of an offence or to represent the value of property and other benefits derived from the commission of an offence.
Article 19
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 competent authority in or of the State sending the document; and
(b) they purport to be sealed with an official seal of:
(i) the State sending the document;
(ii) a minister of state of that State; or
(iii) a department of state of that State.
Copies of original documents and materials are certified for the purposes of this Treaty if a judge, magistrate, or other competent authority of the State sending the copy certifies that it is a true and correct copy of the original document or material.
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, any fees, allowances or expenses payable to that person while in the Requesting State pursuant to a request under Articles 9, 13 or 14 and the expenses associated with the holding of a person in custody in the Requesting State pursuant to Article 13.
(b) the expenses associated with conveying custodial or escorting officers; and
(c) where required by the Requested State, exceptional expenses in fulfilling the request.
Article 21
Consultation
The Contracting Parties shall consult promptly, at the request of either, concerning the interpretation, the application or the implementation 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 the 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 on the one hundred and eightieth day 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 in duplicate at Canberra on the Twenty-fourth day of August, 1994 corresponding to the Seventeenth day of Elul, 5754, in the English and Hebrew languages, both texts being equally authentic.
Michael Lavarch David Libai
For the Government For the Government of
of Australia the State of Israel
_________________________________________________
NOTE
Note: 1. Notified in the Commonwealth of Australia Gazette on 29 August 1995.