Mutual Assistance in Criminal Matters (Sweden) Regulations 2001

The Mutual Assistance in Criminal Matters (Sweden) Regulations 2001 serve as the legislative vehicle that applies the Mutual Assistance in Criminal Matters Act 1987 (Cth) to Sweden. Mechanically, this application is governed by and subject to the bilateral Treaty between Australia and Sweden on Mutual Assistance in Criminal Matters, which was executed at Stockholm on 18 December 1998. The English text of this treaty is set out in Schedule 1 of the Regulations.

The primary function of this instrument is to establish a structured, reciprocal administrative and judicial framework. This framework allows Australian and Swedish authorities to request and provide assistance in a wide range of criminal investigations and prosecutions. Under Article 1(3) of the Treaty, the permissible forms of mutual assistance are explicitly itemised. These include the taking of evidence and obtaining of statements of persons; the provision of documents and other records; the location and identification of persons; the execution of requests for search and seizure; and the implementation of measures to locate, restrain, and forfeit the proceeds of crime. Additionally, the Treaty allows for the temporary transfer of persons in custody to give evidence or assist in investigations, the voluntary facilitation of other persons to appear as witnesses, and the formal service of legal documents.

Conversely, Article 1(4) carves out specific areas of criminal law administration that are excluded from the scope of this instrument. The Treaty does not apply to the arrest or detention of any person with a view to extradition; the transfer of prisoners to serve sentences; or the direct execution of foreign criminal judgments in the Requested State, except where specifically permitted by the domestic law of the Requested State and the Treaty itself. By codifying these boundaries, the Regulations govern how Australian law enforcement, prosecutors, and courts must interact with their Swedish counterparts when seeking or rendering judicial assistance.

View image in the official source

Statutory Rules 2001 No. 120 as amended

made under the

Mutual Assistance in Criminal Matters Act 1987

This compilation was prepared on 18 June 2003
taking into account amendments up to SR 2001 No. 304

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

Contents

1 Name of Regulations [see Note 1]

2 Commencement

3 Application of Act

Schedule 1 Mutual assistance treaty

Notes

1 Name of Regulations [see Note 1]

These Regulations are the Mutual Assistance in Criminal Matters (Sweden) Regulations 2001.

2 Commencement

These Regulations commence on 1 December 2001.

3 Application of Act

The Mutual Assistance in Criminal Matters Act 1987 applies to Sweden subject to the Treaty between Australia and Sweden on Mutual Assistance in Criminal Matters done at Stockholm on 18 December 1998, a copy of the English text of which is set out in Schedule 1.

Schedule 1 Mutual assistance treaty

(regulation 3)

TREATY BETWEEN AUSTRALIA AND SWEDEN ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS

AUSTRALIA AND SWEDEN

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 States shall, in accordance with this Treaty, grant to each other assistance in respect of criminal matters.
Criminal matter includes matters relating to revenue offences, foreign exchange control offences and customs duties offences.
Such assistance shall include:

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

(b) provision of documents and other records;

(d) execution of requests for search and seizure;

(e) measures to locate and restrain proceeds of crime and to enforce orders in respect of proceeds of crime;

(f) making persons in custody available to give evidence or to assist investigations;

(g) making other persons available to give evidence or to assist investigations;

(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 arrest or detention of any person with a view to extradition;

(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 States whether pursuant to other treaties or arrangements or otherwise nor prevent the Contracting States providing assistance to each other pursuant to other treaties or arrangements.

Article 3

Central office

The Contracting States shall each appoint a Central Office to transmit and receive requests for the purpose of this Treaty. Until either Contracting State designates another authority, the Central Office for Australia shall be the Attorney‑General’s Department, Canberra and the Central Office for Sweden shall be the Ministry for Foreign Affairs, Stockholm.
Requests for assistance shall be made through the Central Offices which shall arrange for the prompt carrying out of such requests.

Article 4

Refusal of assistance

Assistance may be refused if:

(a) the request relates to an offence that is regarded by the Requested State as:

(i) an offence of a political character;

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

(iii) an offence in respect of which the person concerned has been finally convicted, acquitted or pardoned in the Requested State or in a third State or in respect of which the Requested State has decided not to prosecute;

(b) there are substantial grounds for believing that the request for assistance has been made to facilitate the prosecution of a person, or, in respect of Article 17, that the order has been brought about or aggravated, 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;

(c) the request relates to 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;

(d) the request relates to 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 results of the request for assistance are to be used in relation to 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;

(f) the provision of the assistance sought could prejudice an investigation or proceeding in the Requested State, prejudice the safety of any person or impose an excessive burden on the resources of that State; or

(g) the Requested State is of the opinion that the request, if granted, would seriously impair its sovereignty, security, national interest or other essential interests.

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.

Article 5

Contents of requests

Requests for assistance shall include:

(a) the name of the competent authority conducting the investigation or proceedings to which the requests relate;

(b) a description of the nature of the criminal matter including a statement setting out the relevant facts and laws;

(d) except in cases of requests for service of documents, a description of the essential acts, or omissions or matters alleged or sought to be ascertained;

(e) the purpose for which the request is made and the nature of the assistance sought;

(f) details of any particular procedure or requirement that the Requesting State wishes to be followed;

(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 the investigation or proceeding;

(b) a statement as to whether assistance should be provided by a court or some other authority;

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

(e) a description of the documents, records or articles or evidence to be produced as well as a description of the appropriate person to be asked to produce them and, to the extent not otherwise provided for, the form in which they should be reproduced and authenticated; and

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

All documents submitted in support of a request shall be 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

To the extent permitted by its law, the Requested State shall provide assistance in accordance with the requirements specified in the request and shall respond to the request as soon as practicable.
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, after the completion of the proceedings, shall return to the Requested State material provided by the Requested State.

Article 8

Protecting confidentiality and restricting use of evidence and information

The Requested State, to the extent permitted by its law and if so requested, shall keep the application for assistance, the contents of a request and its supporting documents, and the fact of granting of 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, to the extent permitted by its law and if so requested, shall keep confidential evidence and information provided by the Requested State.
The Requesting State shall not use evidence obtained, nor information derived therefrom, 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 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 in accordance with its law including 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 State shall be so informed and advised of the reasons.
A person who fails to answer a summons to appear, service of which has been requested, shall not by reason thereof, be liable to any penalties or be subjected to any coercive measures notwithstanding any contrary statement contained in the summons, unless the person subsequently voluntarily enters the Requesting State and is there again duly summoned.

Article 10

Taking of evidence of witnesses and experts

Where a request is made:

(i) in the case of Australia, by the Attorney-General or his delegate, a judge or magistrate;

(ii) in the case of Sweden, by a court or a public prosecutor;

for the taking of evidence of witnesses and experts for the purpose of a proceeding in relation to a criminal matter in the Requesting State, the Requested State shall take that evidence for transmission to the Requesting State.

For the purpose 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 witnesses or experts are to be examined including any questions to be put.
Where, pursuant to a request for assistance, a witness or expert is to give evidence for the purpose of proceedings in the Requesting State, the parties to the relevant proceedings in the Requesting State, their legal representatives or representatives of the Requesting State may, subject to the laws of the Requested State, appear and question the person giving that evidence.
A witness or expert who is required to give evidence in the Requested State pursuant to a request for assistance may decline to give evidence where either:

(a) the law of the Requested State would permit that person to decline to give evidence in similar circumstances in proceedings which originated in the Requested State; or

(b) where the law of the Requesting State would permit that person 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 Requested State shall with respect thereto rely on a certificate of the Central Authority of the Requesting State as evidence of the existence of that right.

Article 11

Locating and identifying persons and obtaining statements

The Requested State shall endeavour, upon request, to locate or identify persons for the purpose of an investigation or proceeding in relation to a criminal matter in the Requesting State.
The Requested State shall endeavour, upon request, to obtain statements of persons for the purpose of an investigation or proceeding in relation to a criminal matter in the Requesting State.

Article 12

Availability of persons in custody to give evidence or 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 give evidence or to assist investigations.
The Requested State shall not transfer a person in custody to the Requesting State unless the person consents.
While the person 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 either:

(i) at such time as is stipulated by the Requested State; or

(ii) 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.

Article 13

Availability of other persons to give evidence or assist investigations

The Requesting State may request the assistance of the Requested State in inviting a person:

(a) to appear as a witness or expert in proceedings in relation to a criminal matter in the Requesting State; or

(b) to 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 appear as a witness or expert in proceedings or to assist in the investigations.

Article 14

Safe conduct

Where a person is in the Requesting State pursuant to a request made under Articles 9, 12 or 13 that person shall not be prosecuted or detained or subjected to any other restriction of personal liberty in the Requesting State in respect of any act or omission which preceded the person’s departure from the Requested State.
Where a person is in the Requesting State pursuant to a request under Articles 12 and 13 that person additionally shall not, without that person’s consent, be required to give evidence in any proceeding or to assist in any investigation other than the proceedings or investigation to which the request relates.
Notwithstanding paragraph 1 of this Article, where the person whose appearance is required pursuant to paragraph 2 of Article 9 is the suspect or the accused, that person shall not be prosecuted or detained or subjected to any other restriction of personal liberty for acts or omissions which preceded that person’s departure from the Requested State and are not specified in the document served.
Paragraphs 1, 2 and 3 of this Article shall cease to apply if that person, being free to leave, has not left the Requesting State 15 days after that person has been officially notified that his or her presence is no longer required or, having left, has returned.
A person appearing in the Requesting State pursuant to a request under Articles 9, 12 or 13 is subject to the law of that State in relation to contempt, perjury and the making of false declarations.
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

Search and seizure

The Requested State shall insofar as its law permits carry out requests for search, seizure and delivery of any material relevant to the investigation or prosecution of a criminal matter, to the Requesting State, provided the request contains information that 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 17

Proceeds of crime

The Requested State shall, upon request, endeavour to ascertain whether any proceeds of a crime alleged 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, upon request, take such action as is 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, upon request and insofar as its law permits, give effect to a final order forfeiting or confiscating the proceeds of crime, made by a court of the Requesting State, being an order that, but for the location of the property, would be enforceable in the Requesting State.
In the application of this Article the rights of bona fide third parties which have not been determined by courts of the Requesting State shall be respected under the law of the Requested State.
The Requested State shall retain the property obtained in satisfaction of the order referred to in paragraph 3 unless otherwise mutually decided in a particular case.
In making a request for restraint pursuant to this Article, the Requesting State shall notify the Requested State of the estimated time which will elapse before final judgment may be given. If final judgment is not given by the expiration of the time estimated in the request, the Requesting State shall advise the Requested State of the stage of proceedings reached and a revised estimate of time. The Requested State may then impose a condition setting the duration of the restraint.
In this Article “proceeds of crime” means any property suspected, or found by a court, to be property derived or realised, directly or indirectly, as a result of the commission of an offence or to represent the value of that property as well as any other benefits derived from the commission of an offence.
The Requesting State shall promptly inform the Requested State of any circumstances, including any other enforcement action, which may affect the request or its execution or which may make it inappropriate to proceed with giving effect to it.

Article 18

Certification and authentication

Documents supporting the request for assistance and documents and other material supplied in response to such a request shall be authenticated in accordance with paragraph 2.
Documents and materials are authenticated for the purposes of this Treaty if:

(a) they purport to be signed or certified by an 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 of state, or of a Department or officer of the Government, of that State.

Article 19

Subsidiary arrangements

The Central Office of each Contracting State may enter into subsidiary arrangements with each other consistent with the purposes of this Treaty to the extent that such arrangements are consistent with the laws of both Contracting States.

Article 20

Representation and expenses

Unless otherwise provided in this Treaty the Requested State shall make the necessary arrangements for the representation of the Requesting State in 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 12 or 13;

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

(d) where required by the Requested State, exceptional expenses in fulfilling the request.

Article 21

Consultation

The Contracting States 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 be ratified; the instruments of ratification shall be exchanged in Stockholm as soon as possible. It shall enter into force on the first day of the second month after the exchange of the instruments of ratification.
This Treaty shall apply to requests pursuant to it whether or not the relevant acts or omissions occurred prior to this Treaty entering into force.
Either Contracting State 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 at Stockholm on the eighteenth day of December, one thousand nine hundred and ninety-eight in the English and Swedish languages, both texts being equally authentic.

For Australia: For Sweden:

Judith Pead Anna Lindh

Notes to the Mutual Assistance in Criminal Matters (Sweden) Regulations 2001

Note 1

Note: The Mutual Assistance in Criminal Matters (Sweden) Regulations 2001 (in force under the Mutual Assistance in Criminal Matters Act 1987) as shown in this compilation comprise Statutory Rules 2001 No. 120 amended as indicated in the Tables below.

Note: > Note: Table of Statutory Rules

Year andnumber	Date of notificationin Gazette	Date ofcommencement	Application, saving ortransitional provisions
2001 No. 120	6 June 2001	1 Nov 2001
2001 No. 304	15 Oct 2001	15 Oct 2001	—

Note: > Note: Table of Amendments

<table cellspacing="0" cellpadding="0" style="border-collapse:collapse"><tbody><tr><td colspan="2" style="width:354.9pt; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableOfAmendHead" style="margin-right:0pt"><span>ad. = added or inserted</span><span> </span><span>am. = amended</span><span> </span><span>rep. = repealed</span><span> </span><span>rs. = repealed and substituted</span></p></td></tr><tr><td style="width:111.1pt; border-top:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableColHead"><span>Provision affected</span></p></td><td style="width:233pt; border-top:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableColHead"><span>How affected</span></p></td></tr><tr><td style="width:111.1pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableOfAmend" style="margin-right:0pt; margin-bottom:3pt"><span>R. 2</span><span style="width:96.89pt; text-indent:0pt; font-family:'Lucida Console', monospace; display:inline-block">.................</span></p></td><td style="width:233pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableOfAmend" style="margin-right:0pt; margin-bottom:3pt"><span>am. 2001 No. 304</span></p></td></tr></tbody></table>

1 Mutual Assistance in Criminal Matters (Sweden) Regulations 2001

Mutual Assistance in Criminal Matters (Sweden) Regulations 2001

Statutory Rules 2001 No. 120 as amended

made under the

Mutual Assistance in Criminal Matters Act 1987

This compilation was prepared on 18 June 2003
taking into account amendments up to SR 2001 No. 304

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

Contents

1 Name of Regulations [see Note 1]

2 Commencement

3 Application of Act

Schedule 1 Mutual assistance treaty

Notes

1 Name of Regulations [see Note 1]

These Regulations are the Mutual Assistance in Criminal Matters (Sweden) Regulations 2001.

2 Commencement

These Regulations commence on 1 December 2001.

3 Application of Act

Schedule 1 Mutual assistance treaty

(regulation 3)

TREATY BETWEEN AUSTRALIA AND SWEDEN ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS

AUSTRALIA AND SWEDEN

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 States shall, in accordance with this Treaty, grant to each other assistance in respect of criminal matters.
Criminal matter includes matters relating to revenue offences, foreign exchange control offences and customs duties offences.
Such assistance shall include:

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

(b) provision of documents and other records;

(d) execution of requests for search and seizure;

(e) measures to locate and restrain proceeds of crime and to enforce orders in respect of proceeds of crime;

(f) making persons in custody available to give evidence or to assist investigations;

Several foundational legal concepts govern the operation of the Regulations and the Scheduled Treaty. Understanding these concepts is critical for analyzing the legal boundaries of bilateral co-operation.

Criminal Matter

Under Article 1(2), the term "criminal matter" is broadly constructed to encompass traditional criminal offenses, but it specifically includes revenue offences, foreign exchange control offences, and customs duties offences. This inclusion is notable because international mutual assistance historically excluded fiscal and tax matters under the "revenue rule". The Treaty explicitly overrides this traditional barrier, allowing reciprocal assistance for tax evasion and exchange control prosecutions.

Central Office

To bypass slow and complex diplomatic channels, Article 3 establishes a direct communication framework via designated "Central Offices". For Australia, the Central Office is the Attorney-General's Department in Canberra. For Sweden, it is the Ministry for Foreign Affairs in Stockholm. These administrative units are responsible for transmitting, receiving, and facilitating the prompt execution of all mutual assistance requests.

Dual Criminality

This concept is activated through the refusal provisions in Article 4(1)(c). A Requested State may deny assistance if the underlying acts or omissions would not constitute an offense had they occurred within its own jurisdiction. This ensures that neither State is forced to deploy its domestic police and judicial powers to investigate conduct that its own parliament or law-making bodies have determined should not be criminalised.

Proceeds of Crime

Defined in Article 17(7), "proceeds of crime" refers to any property suspected, or found by a court, to be derived or realised, directly or indirectly, as a result of the commission of an offense, or to represent the monetary value of such property, alongside any other benefits derived from the offense. This concept underpins the restraint and confiscation mechanisms established under Article 7 and Article 17.

Safe Conduct

Article 14 establishes "safe conduct" as a protective legal status. It ensures that witnesses, experts, or custodial persons transferred to the Requesting State cannot be prosecuted, detained, or subjected to any restriction of personal liberty for acts or omissions that occurred prior to their departure from the Requested State.

The Regulations directly govern and modify the behavior of several classes of institutional, corporate, and individual actors across both jurisdictions.

Government Departments and Public Officers

The primary operational burden falls on the Central Offices designated under Article 3. In Australia, this is the Attorney-General’s Department; in Sweden, it is the Ministry for Foreign Affairs. These agencies must allocate administrative resources to review requests, verify compliance with the Treaty, and coordinate with domestic law enforcement agencies. Public prosecutors, judges, and magistrates in both countries are also affected. Under Article 10(1), Australian judges and magistrates, and Swedish public prosecutors and courts, are empowered to take evidence for transmission to the other State.

Criminal Suspects and Defendants

Individuals facing investigation or prosecution in either country are heavily affected. The Treaty allows foreign prosecutors to access their domestic bank records, search their properties, and seize physical evidence via Article 16. However, defendants also receive specific protections, such as the safe conduct provisions under Article 14 and the right to have legal representation present during the taking of evidence under Article 10(4).

Witnesses and Experts

Independent witnesses and expert professionals are subject to the request mechanisms of Articles 10, 12, and 13. They may be invited to travel internationally to give evidence, or they may be compelled to give evidence before a domestic court for foreign use.

Custodial Officers and Prisoners

Under Article 12, prisoners in custody may be temporarily transferred between Australia and Sweden to assist in investigations or give evidence. This directly affects corrections departments, which must manage international transfers, and custodial escort officers, whose transport costs are distributed between the nations under Article 20.

Bona Fide Third Parties

Article 17(4) explicitly identifies innocent third parties whose property interests may be caught up in foreign asset forfeiture or restraint proceedings. The Treaty requires that the rights of these third parties be respected under the laws of the Requested State.

The Treaty establishes a reciprocal matrix of mandatory duties and protective rights that restrict how both nation-states can act.

Duties of the Requested State

Execution of Requests: Under Article 6(1), the Requested State is under a duty to provide assistance as soon as practicable and in accordance with the specifications of the Requesting State, to the extent permitted by its domestic law.
Representation: Under Article 20(1), the Requested State must make all necessary arrangements to represent the interests of the Requesting State in any domestic proceedings arising from a request.
Confidentiality: Under Article 8(1), if requested, the Requested State must maintain strict confidentiality regarding the application, the contents of the request, supporting documents, and the fact that assistance was granted.

Duties of the Requesting State

Return of Materials: Under Article 7, the Requesting State must return any materials or documents provided by the Requested State once the relevant criminal proceedings have concluded, if required to do so.
Use Limitations: Article 8(3) imposes a strict duty not to use any obtained evidence or derived information for purposes other than those specified in the initial request, unless the prior consent of the Requested State is obtained.
Financial Liabilities: Under Article 20(2), the Requesting State is duty-bound to pay specific costs, including the travel and accommodation expenses of witnesses, the costs of escorting custodial officers, and any exceptional expenses incurred in executing the request.

Rights of Witnesses and Defendants

Right to Decline to Give Evidence: Article 10(5) protects witnesses by allowing them to refuse to give evidence if the laws of either the Requested State or the Requesting State would permit a refusal in similar domestic proceedings.
Right to Safe Conduct: Under Article 14, witnesses and suspects who enter the Requesting State pursuant to a request have a right to immunity from prosecution, detention, or liberty restrictions for prior acts, subject to the fifteen-day expiration rule in Article 14(4).

Rights of States to Refuse Assistance

Article 4(1) grants the Requested State the right to refuse assistance under several discretionary and mandatory categories. These include cases where the request relates to a political or purely military offense, where double jeopardy applies, where dual criminality is absent, where prosecution is barred by a lapse of time, or where the request would seriously impair national sovereignty, security, or essential interests.

Because the Regulations apply to international mutual assistance, they do not establish a standalone schedule of criminal penalties. Instead, they rely on the existing enforcement mechanisms of the domestic laws in Australia and Sweden, while placing specific limits on the coercive powers that can be deployed.

Summons and Coercive Measures

A key protection against foreign penal overreach is found in Article 9(5). If a person is served with a summons to appear in the Requesting State and fails to answer it, they cannot be subjected to any penalties or coercive measures in their home country, even if the summons itself contains warnings of penalties. This restriction is lifted only if the person subsequently enters the territory of the Requesting State voluntarily and is duly served with a summons again.

Contempt and Perjury

While witnesses cannot be penalised for refusing to travel to a foreign state, those who do consent to travel and appear under Articles 9, 12, or 13 face full exposure to local penal laws. Article 14(5) explicitly states that any person appearing in the Requesting State is subject to the local domestic laws regarding contempt of court, perjury, and the making of false declarations.

Execution of Search, Seizure, and Forfeiture

Enforcement of search and seizure requests under Article 16 is contingent on the request containing information that would satisfy the domestic legal standards of the Requested State. In Australia, this means a domestic warrant must be obtained under the Mutual Assistance in Criminal Matters Act 1987 (Cth).

For assets and proceeds of crime, Article 17 provides the enforcement mechanism for foreign judicial orders. Under Article 17(2), the Requested State must take domestic legal action to prevent the dealing, transfer, or disposal of suspected proceeds of crime pending a final determination. Under Article 17(3), the Requested State must, as far as its law permits, give physical effect to final forfeiture or confiscation orders issued by courts in the Requesting State.

The Regulations do not operate in a legislative vacuum; they function as an interface between the domestic laws of Australia, the domestic laws of Sweden, and wider international legal frameworks.

+-------------------------------------------------------------+
|          Mutual Assistance in Criminal Matters Act 1987      |
|                                                             |
|   +-----------------------------------------------------+   |
|   |  Sweden Regulations 2001 (SR 2001 No. 120 / 304)   |   |
|   |                                                     |   |
|   |   +---------------------------------------------+   |   |
|   |   |            Bilateral Treaty (1998)          |   |   |
|   |   +---------------------------------------------+   |   |
|   +-----------------------------------------------------+   |
+-------------------------------------------------------------+
                               |
         Interacts with domestic procedural statutes:
         - Crimes Act 1914 (Cth) (Search & Seizure)
         - Proceeds of Crime Act 2002 (Cth) (Restraint & Forfeiture)
         - Evidence Act 1995 (Cth) (Admissibility & Privilege)

The Parent Act

The Regulations directly modify the application of the Mutual Assistance in Criminal Matters Act 1987 (Cth). Regulation 3 states that the parent Act applies to Sweden "subject to the Treaty". Consequently, if a provision of the Australian Act is broader than what the Treaty permits, or if the Treaty imposes additional conditions (such as the 45-day notice period for summons service under Article 9(2)), the Treaty provisions prevail and limit the default powers of the Australian Central Authority.

Domestic Criminal Procedure Laws

When a request is executed in Australia, local procedural statutes are engaged. For example, if Sweden requests search and seizure under Article 16, Australian police must execute this via search warrant provisions located in the Crimes Act 1914 (Cth) or the parent mutual assistance statute. Similarly, restraint and forfeiture requests under Article 17 are executed by registering foreign orders or obtaining domestic restraining orders under the Proceeds of Crime Act 2002 (Cth) (or its statutory predecessors).

Evidentiary Laws

The taking of evidence under Article 10 interacts with the Evidence Act 1995 (Cth) and state-based evidence acts. While Article 10(4) allows foreign legal representatives to question witnesses, this remains "subject to the laws of the Requested State". Therefore, local rules on leading questions, hearsay, and privilege apply during the examination.

Other Treaties

Article 2 preserves the operation of other international instruments. The Treaty does not derogate from obligations subsisting under other treaties, such as extradition treaties, multilateral conventions on corruption or cybercrime, or informal police-to-police communication channels operated through organisations like Interpol.

The Mutual Assistance in Criminal Matters (Sweden) Regulations 2001 were made under the authority of the Mutual Assistance in Criminal Matters Act 1987 (Cth). The legislative history of this instrument is relatively brief but contains critical adjustments to its commencement date.

Statutory Rules 2001 No. 120

The original regulations were made as Statutory Rules 2001 No. 120. They were formally notified in the Commonwealth of Australia Gazette on 6 June 2001. Under the original design of these rules, the commencement date for the Regulations was scheduled for 1 November 2001.

Statutory Rules 2001 No. 304

Prior to the original commencement date taking effect, the Executive Council made amending regulations under Statutory Rules 2001 No. 304. This amending instrument was notified in the Gazette on 15 October 2001 and commenced immediately upon notification.

The sole substantive amendment made by SR 2001 No. 304 was to Regulation 2 of the primary regulations. It altered the commencement date of the Mutual Assistance in Criminal Matters (Sweden) Regulations 2001, postponing it from 1 November 2001 to 1 December 2001. This delay was necessary to align the domestic commencement of the regulations with the international exchange of the instruments of ratification in Stockholm, as required under Article 22(1) of the Treaty.

The compilation prepared on 18 June 2003 by the Office of Legislative Drafting within the Attorney-General's Department consolidates these two instruments, reflecting Regulation 2 in its amended state.

No specific domestic judicial decisions or international arbitrations arising directly from the interpretation of these Regulations are recorded in the text of the instrument. Because mutual assistance operates primarily within administrative channels between the Attorney-General's Department and the Swedish Ministry for Foreign Affairs, disputes are typically resolved through inter-governmental mechanisms rather than public litigation.

Consultation Mechanism

Article 21 of the Treaty provides the primary forum for resolving disputes regarding the interpretation or application of the instrument. It mandates that the Contracting States must consult promptly at the request of either party. These consultations can occur generally or in relation to a particular case. This administrative dispute-resolution pathway is designed to prevent treaty interpretation disputes from escalating to formal domestic court challenges.

Potential Litigation Pathways

While the treaty text does not cite litigation, the wording of its articles reveals where domestic legal disputes are structurally likely to occur:

Asset Restraint and Forfeiture: Under Article 17(4), bona fide third parties who have property interests affected by a Swedish restraint request have their rights protected under Australian law. This opens up domestic litigation pathways under the Proceeds of Crime Act 2002 (Cth), where third parties can apply to Australian courts to exclude their property from restraint or forfeiture orders initiated by Swedish requests.
Dual Criminality and Human Rights Challenges: Judicial review applications may be brought in the Federal Court of Australia challenging a decision by the Attorney-General to grant assistance. Such challenges typically argue that the Attorney-General failed to properly consider the grounds for refusal under Article 4, such as whether the offense is of a political character (Article 4(1)(a)(i)) or whether there are substantial grounds for believing the prosecution is racially or politically motivated (Article 4(1)(b)).

Practitioners dealing with mutual assistance requests between Australia and Sweden must watch out for several procedural rules and structural traps within the Treaty.

The 15-Day Safe Conduct Window

Under Article 14(4), the safe conduct immunities that prevent a witness or suspect from being arrested, prosecuted, or detained in the Requesting State for prior offenses are not permanent. These protections cease entirely if the person remains in the Requesting State for fifteen days after being officially notified that their presence is no longer required, or if they leave and subsequently return voluntarily.

The 45-Day Summons Notice Rule

Article 9(2) mandates that any request to serve a document requiring a person to appear in the Requesting State must be delivered to the Requested State at least forty-five days before the scheduled appearance date. While the Requested State can waive this in urgent cases, failure to meet this timeline allows the Requested State to refuse to execute the service, potentially disrupting trial schedules.

Asset Retention by the Requested State

A significant economic incentive trap is found in Article 17(5). When Sweden or Australia executes a final forfeiture order on behalf of the other state, the Requested State (the state that seized the property) retains the obtained property or proceeds unless both states mutually agree otherwise in a specific case. This means the victimised or requesting state does not automatically receive the recovered assets.

Strict Translation Cost Burden

Under Article 5(3), all documents submitted in support of a request must be accompanied by a formal translation into the language of the Requested State. For Australian practitioners making requests to Sweden, this means translating complex legal applications, statutory declarations, and exhibits into Swedish. This requirement represents a significant, non-refundable upfront cost and administrative delay.

                    REQUEST SEQUENCE & KEY TIMELINES
                    
 Requesting State                                       Requested State
==================                                     =================
 
  [Drafts Request] 
         |
         v
  [Translates Docs]  ------------------------------>  [Reviews Request]
  (Article 5(3):                                      (Article 4 Refusal
   Must be in Swedish)                                 Check: Dual Criminality,
                                                       Political Offence, etc.)
                                                                 |
  [Summons Issued]                                               v
  (Article 9(2):     ==============================>  [Executes Summons]
   Must be submitted                                  (No penalties for 
   >= 45 Days prior)                                   non-appearance 
                                                       per Article 9(5))
         |                                                       |
         |                                                       v
  [Witness Arrives]  <------------------------------  [Witness Departs]
  (Article 14: 
   Safe Conduct starts)
         |
  [Witness Notified: 
   "No longer required"]
         |
  [15-Day Countdown]  ===> (If witness remains > 15 days, 
                           Article 14 safe conduct expires)

Compliance under the Regulations requires strict adherence to the formal administrative steps set out in the Treaty, whether a party is drafting a request or resisting an invalid application.

Drafting a Request (Article 5 Checklist)

To ensure compliance and prevent immediate administrative rejection by the Central Office of the Requested State, every request must include:

Authority Details: The name of the competent authority conducting the investigation, prosecution, or proceeding (Article 5(1)(a)).
Nature of the Matter: A detailed description of the criminal matter, including a statement of the relevant facts and the text of the applicable domestic laws (Article 5(1)(b)).
Court Orders: A copy of any court order sought to be enforced, along with a formal statement confirming that the order is final and no longer subject to appeal (Article 5(1)(c)).
Target Details: The identity, nationality, and precise location of the person who is the subject of the investigation, to the extent known (Article 5(2)(a)).
Evidentiary Needs: Clear specifications regarding whether sworn or affirmed evidence is required, and a detailed list of the documents, records, or physical evidence sought (Article 5(2)(c)-(e)).
Translation: A complete, certified translation of all documents into Swedish (for Australian requests) or English (for Swedish requests) (Article 5(3)).

Managing Authentication (Article 18)

Practitioners must ensure all supporting materials are properly authenticated before transmission. Under Article 18(2), documents are authenticated only if:

They purport to be signed or certified by an officer in or of the sending State; and
They are sealed with an official seal of the sending State, a minister of state, or a government department or officer.

Asserting Witness Rights (Article 10)

If representing a witness called to give evidence under a mutual assistance request:

Assess Privileges: Evaluate whether the witness has a right to decline to give evidence under either Australian or Swedish law.
Obtain Central Authority Certificate: If relying on a privilege existing under the law of the Requesting State, request and secure a formal certificate from the Central Authority of that state under Article 10(6). The Requested State's court is required to accept this certificate as definitive proof of the right to decline.
Monitor the Safe Conduct Expiry: Ensure your client departs the Requesting State within fifteen days of receiving official notification that their presence is no longer required, thereby preventing the loss of safe conduct protections under Article 14(4).

Deep Dive

What it does

Current sections