[Senate Treaty Document 105-27]
[From the U.S. Government Publishing Office]



105th Congress                                              Treaty Doc.
                                SENATE

1st Session                                                      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.


                         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.


                          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 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 doeverything 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 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 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 sendingState 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 required, 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 
andinstrumentalities 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 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.





                                
