U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

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59–118 (STAR PRINT)

" ! SENATE 105TH CONGRESS

1st Session

TREATY DOC.

1997

105–27

TREATY WITH AUSTRALIA ON MUTUAL ASSISTANCE IN

CRIMINAL MATTERS

MESSAGE

FROM

THE PRESIDENT OF THE UNITED STATES

TRANSMITTING

TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES

OF AMERICA AND THE GOVERNMENT OF AUSTRALIA ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS, SIGNED AT WASHINGTON ON APRIL 30, 1997

SEPTEMBER 18, 1997.—Treaty was read the first time and, together with

the accompanying papers, referred to the Committee on Foreign Relations and ordered to be printed for the use of the Senate.

(III)

LETTER OF TRANSMITTAL

THE WHITE HOUSE, September 18, 1997.

To the Senate of the United States:

With a view to receiving the advice and consent of the Senate to

ratification, I transmit herewith the Treaty Between the Government of the United States of America and the Government of Australia on Mutual Assistance in Criminal Matters, signed at Washington on April 30, 1997, and a related exchange of diplomatic

notes signed the same date. I transmit also, for the information of

the Senate, the report of the Department of State with respect to

the Treaty.

The Treaty is one of a series of modern mutual legal assistance

treaties being negotiated by the United States in order to counter

criminal activities more effectively. The Treaty should be an effective tool to assist in the prosecution of a wide variety of crimes, including drug trafficking offenses, terrorism and other violent crime,

money laundering and other ‘‘white-collar’’ crime. The Treaty is

self-executing.

The Treaty provides for a broad range of cooperation in criminal

matters. Mutual assistance available under the Treaty includes:

taking testimony or statements of persons; providing documents,

records, and other articles of evidence; serving documents; locating

or identifying persons; transferring persons in custody for testimony or other purposes; executing requests for searches and seizures and for restitution; immobilizing instrumentalities and proceeds of crime; assisting in proceedings related to forfeiture or confiscation; and rendering any other form of assistance not prohibited

by the laws of the Requested State.

I recommend that the Senate give early and favorable consideration to the Treaty and related exchange of notes, and give its advice and consent to ratification.

WILLIAM J. CLINTON.

(V)

LETTER OF SUBMITTAL

DEPARTMENT OF STATE, Washington, August 27, 1997.

The PRESIDENT, The White House.

THE PRESIDENT: I have the honor to submit to you the Treaty between the Government of the United States of America and the

Government of Australia on Mutual Assistance in Criminal Matters (the ‘‘Treaty’’), signed at Washington on April 30, 1997, and a

related exchange of notes signed the same date. I recommend that

the Treaty and the related exchange of notes be transmitted to the

Senate for its advice and consent to ratification.

The Treaty covers mutual legal assistance in criminal matters.

In recent years, similar bilateral treaties have entered into force

with a number of other countries. This Treaty contains many provisions similar to those in the other treaties and all of the essential

provisions sought by the United States. It will enhance our ability

to investigate and prosecute a variety of offenses, including drug

trafficking, terrorism, money laundering, and other violent and

white-collar crimes. The Treaty is designed to be self-executing and

will not require new legislation.

Article 1 sets forth a non-exclusive list of the major types of assistance to be provided under the Treaty, including taking the testimony or statements of persons; providing documents, records, and

other articles of evidence; serving documents; locating or identifying persons; transferring persons in custody for testimony or other

purposes; executing requests for searches and seizures and for restitution; immobilizing instrumentalities and proceeds of crime; assisting in proceedings related to forfeiture or confiscation; and any

other form of assistance not prohibited by the laws of the Requested State. The scope of the Treaty includes not only criminal

offenses, but also proceedings related to criminal offenses, which

may be civil or administrative in nature.

Article 1 does not require dual criminality for assistance to be

provided under the Treaty. It is understood that assistance will be

provided without regard to whether the conduct involved would

constitute an offense under the laws of the Requested State.

Article 1(3) states explicitly that the Treaty is not intended to

create rights in private parties to obtain, suppress or exclude any

evidence, or to impede the execution of a request.

Article 2 provides for the establishment of Central Authorities

and defines Central Authorities for purposes of the Treaty. For the

United States, the Central Authority is the Attorney General or a

person designated by the Attorney General. For Australia, the Central Authority is the Attorney-General or a person designated by
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the Governor-General to be the Minister responsible for the administration of legislation relating to mutual assistance in criminal

matters. The article provides that the Central Authorities shall

communicate directly with one another for the purposes of the

Treaty.

Article 3 sets forth the circumstances under which a Requested

State’s Central Authority may deny assistance under the Treaty. A

request may be denied if it relates to a military offense that would

not be an offense under ordinary criminal law. In addition, a request may be denied if its execution would prejudice the security

or similar essential public interests of the Requested State, or if

the request relates to a political offense (a term expected to be defined on the basis of that term’s usage in extradition treaties). Diplomatic notes exchanged between the Parties at the time of the

signing of the Treaty on April 30, 1997 set forth the understanding

of the Parties that the term ‘‘essential interests’’ will be interpreted

to include certain limitations on assistance set forth in Australian

domestic law, which includes a discretionary limitation on providing assistance in death penalty cases, for so long as the relevant

law is in effect.

Before denying assistance under Article 3, the Central Authority

of the Requested State is required to consult with its counterpart

in the Requesting State to consider whether assistance can be

given subject to such conditions as the Central Authority of the Requested State deems necessary. If the Requesting State accepts assistance subject to these conditions, it is required to comply with

the conditions. If the Central Authority of the Requested State denies assistance, it is required to inform the Central Authority of

the Requesting State of the reasons for the denial.

Article 4 prescribes the form and content of written requests

under the Treaty, specifying in detail the information required in

each request. The article permits other forms of request in emergency situations but requires written confirmation within ten days

thereafter unless the Central Authority of the Requested State

agrees otherwise.

Article 5 requires the Central Authority of the Requested State

to execute the request promptly or, when appropriate, to transmit

it to the authority having jurisdiction to do so. It provides that the

competent authorities of the Requested State shall do everything in

their power to execute a request, and that the courts of the Requested State shall have authority to issue subpoenas, search warrants, or other orders necessary to execute the request. The Central

Authority of the Requested State must make all arrangements for

representation of the Requesting State in any proceedings arising

out of an assistance request.

Under Article 5(3), requests are to be executed in accordance

with the laws of the Requested State except to the extent that the

Treaty provides otherwise. However, the method of execution specified in the request is to be followed except insofar as it is prohibited by the laws of the Requested State. If the Central Authority

of the Requested State determines that execution of the request

would interfere with an ongoing criminal investigation, prosecution, or proceeding in that State, it may postpone execution or,

after consulting with the Central Authority of the Requesting
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State, impose conditions on execution. If the Requesting State accepts assistance subject to such conditions, it shall comply with

them.

Article 5(5) further requires the Requested State, if so requested

by the Central Authority of the Requesting State, to use its best

efforts to keep confidential a request, its contents, and any action

taken on the request, and to inform the Requesting State’s Central

Authority if the request cannot be executed without breaching confidentiality. This provides the Requesting State an opportunity to

decide whether to pursue the request or to withdraw it in order to

maintain confidentiality.

This article also requires the Requested State’s Central Authority to respond to reasonable inquiries by the Requesting State’s

Central Authority regarding the status of the execution of a request; to report promptly to the Requesting State’s Central Authority the outcome of its execution; and, if the request is denied, to

inform the Requesting State’s Central Authority of the reasons for

the denial.

Article 6 apportions between the two States the costs incurred in

executing a request. It provides that the Requested State shall pay

all costs, except for the following items to be paid by the Requesting State: fees of expert witnesses; costs of translation and transcription; and allowances and expenses related to travel of persons

pursuant to Articles 10 and 11.

Article 7 requires the Requesting State to comply with any request by the Central Authority to the Requested State that information or evidence obtained under the Treaty not be used for proceedings other than those described in the request without the

prior consent of the Requested State. Further, if the Requested

State’s Central Authority requests that information or evidence furnished be kept confidential or be used in accordance with specified

conditions, the Requesting State must use its best efforts to comply

with the conditions. Once information is made public in the Requesting State in accordance with either of these provisions, no further limitations on use apply.

Article 8 provides that a person in the Requested State from

whom evidence is requested pursuant to the Treaty shall be compelled, if necessary, to appear and, subject to the law of that State

on immunity, incapacity, or applicable privilege, testify or produce

documents, records, or other articles of evidence. The article requires the Central Authority of the Requested State, upon request,

to furnish information in advance about the date and place of the

taking of the evidence.

Article 8(3) further requires the Requested State to permit the

presence of persons specified in the request and to permit them to

question the person giving the testimony or evidence either directly

or through a local legal representative. In the event that a person

whose testimony or evidence is being taken asserts a claim of immunity, incapacity, or privilege under the laws of the Requesting

state, Article 8(4) provides that the testimony or evidence shall be

taken and the claim made known to the Central Authority of the

Requesting State for resolution by its authorities.

Finally, in order to ensure admissibility in evidence in the Requesting State, Article 8(5) provides a mechanism through the use
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of Form A appended to the Treaty for authenticating evidence that

is produced pursuant to or that is the subject of testimony taken

in the Requested State.

Article 9 requires that the Requested State provide the Requesting State with copies of publicly available records in the possession

of government departments and agencies in the Requested State.

The Requested State may further provide copies of records or information in the possession of a government department or agency,

but not publicly available, to the extent and under the same conditions as it would provide them to its own law enforcement or judicial authorities. The Requested State has the discretion to deny

such requests entirely or in part. Article 9 also provides that no

further authentication shall be necessary for admissibility into evidence in the Requesting State of official records where the official

in charge of maintaining them authenticates the records through

the use of Form B appended to this Treaty.

Article 10 provides a mechanism for the Requesting State to invite the voluntary appearance in its territory of a person located

in the Requested State. The Requesting State shall indicate the extent to which the expenses will be paid.

Article 11 provides for temporary transfer of a person in custody

in the Requested State to the Requesting State for purposes of assistance under the Treaty (for example, a witness incarcerated in

the Requested State may be transferred to the Requesting State to

have his deposition taken in the presence of the defendant), provided that the person in question and the Central Authority of the

Requested State consent. The article also provides for voluntary

transfer of a person in the custody of the Requesting State to the

Requested State for purposes of assistance under the Treaty (for

example, a defendant in the Requesting State may be transferred

for purposes of attending a witness deposition in the Requested

State), if the person consents and if the Central Authorities of both

States agree.

Article 11(3) further establishes both the express authority and

the obligation of the receiving State to maintain the person transferred in custody. The return of the person transferred is subject

to terms and conditions agreed to by the Central Authorities, and

the sending State is not required to initiate extradition proceedings

for return of the person transferred. The person transferred receives credit for service of the sentence imposed in the sending

State for time served in the custody of the receiving State. The article also provides that if the sending State advises the receiving

State that the transferred person is no longer required to be held

in custody, that person shall be freed from custody and treated as

a person referred to in Article 10 of this treaty.

Article 12 provides that a person present in the Requesting State

pursuant to Articles 10 or 11 will not be subject to service of process or be detained, prosecuted, or subjected to any restriction of

personal liberty by reason of any acts or convictions that preceded

his departure from the Requested State. Any safe conduct provided

for by this article ceases twenty-five days after the Central Authority of the Requesting State has notified the Central Authority of

the Requested State that the person’s presence is no longer re-
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quired, or if the person has left the Requesting State and voluntarily returns to it.

Article 13 obligates the Requested State to use its best efforts to

ascertain the location or identity of persons specified in a request.

Article 14 obligates the Requested State to use its best efforts to

effect service of any document transmitted to it by the Requesting

State for that purpose. A request for the service of a document requiring a person to appear in the Requesting State must be transmitted a reasonable time before the scheduled appearance. Proof of

service is to be provided by the Requested State in the manner

specified in the request.

Article 15 obligates the Requested State to execute requests for

search, seizure, and delivery of any article to the Requesting State

if the request includes the information justifying such action under

the laws of the Requested State. It provides that, upon request,

every official who has custody of a seized article is required to certify, through the use of Form C appended to the Treaty, the continuity of custody, the identity of the article, and the integrity of

its condition. No further certification is required. The certificate is

admissible in evidence in United States courts as proof of the truth

of the matters set forth therein. The Central Authority of the Requested State may impose upon the Requesting State terms and

conditions deemed necessary to protect the articles to be transferred.

Article 16 requires the Requesting State’s Central Authority,

upon request of its counterpart in the Requested State, to return

the articles provided under the Treaty when they are no longer

needed for the relevant investigation, prosecution, or proceeding.

Article 17 provides that, upon request of the Central Authority

of the Requesting State and to the extent permitted by its law, the

Requested State must endeavor to locate, trace, restrain, freeze,

seize, forfeit, or confiscate the proceeds and instrumentalities of

crime. The party having control of forfeited or confiscated proceeds

or instrumentalities is required to dispose of them in accordance

with its laws. To the extent permitted by its laws, either party may

transfer such property, or the proceeds of its sale, to the other

party upon mutually acceptable terms.

Article 17 further provides that where the Requesting State

seeks assistance in the enforcement of a court order which restrains, forfeits, confiscates, or otherwise immobilizes the proceeds

of crime, the request must include the original signed order, or a

copy thereof, bearing the official seal of its Central Authority.

Article 18 states that nothing in the Treaty shall prevent the

parties from providing assistance to each other through the provisions of other treaties or arrangements, or through the provisions

of their national laws.

Article 19 provides that the Central Authorities of the Contracting Parties shall consult, at times mutually agreed, to enable the

most effective use to be made of the Treaty, either generally or in

relation to a particular case.

Article 20 provides that the Treaty shall enter into force on the

date on which the parties exchange written notification that they

have complied with their respective requirements for the entry into

force of the Treaty. Article 20(2) provides that the Treaty shall
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apply to requests whether or not the relevant acts or omissions occurred prior to the Treaty entering into force. Article 20(3) further

provides that either party may terminate the Treaty by written notice to the other party, termination to take effect six months after

the date on which notice is given.

A Technical Analysis explaining in detail the provisions of the

Treaty is being prepared by the United States negotiating delegation, consisting of representatives from the Departments of Justice

and State, and will be transmitted separately to the Senate Committee on Foreign Relations.

The Department of Justice joins the Department of State in favoring approval of the Treaty and related exchange of notes by the

Senate as soon as possible.

Respectfully submitted,

MADELEINE ALBRIGHT.
(1)
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