Effective Mutual Legal Assistance (MLA) allows countries to assist each other in obtaining evidence to investigate and prosecute serious criminal matters such as corruption and transnational crime. Unfortunately, a number of challenges often lead to inefficiency in the MLA process.
Each country has distinct requirements for receiving an MLA request, and familiarity with these requirements will help to increase the success rate of requests.
The Australian Government Attorney-General’s Department, together with APEC (Asia-Pacific Economic Cooperation) provides a step-by-step guide to seeking mutual legal assistance in criminal matters from APEC economies.
We take a look at the steps required to successfully request MLA from Australia.
What kinds of assistance may be provided?
If an MLA request fulfils Australian requirements, local authorities can:
- Execute search warrants
- Take evidence from a witness in Australia
- Arrange the production of documents or other articles
- Arrange for prisoner witnesses to travel to a foreign country to give evidence
- Enforce orders restraining and forfeiting the proceeds of crime
- Provide other assistance such as voluntary witness statements or service of documents
Is a treaty required?
Australia can consider an MLA request from a foreign state whether or not a bilateral or multilateral treaty relationship with that country exists.
Requests made under a treaty/convention are executed under Australia’s Mutual Assistance in Criminal Matters Act 1987 subject to the provisions of the relevant treaty/convention.
12 key steps to follow when seeking MLA from Australia
Step 1: Consider whether informal channels can be used
Informal agency-to-agency or police-to-police assistance can generally be provided more quickly. Law enforcement authorities should consider using these channels to obtain information or evidence before making a formal MLA request.
Step 2: Consult with the central authority before submitting the request
MLA requests are received by the Australian Central Authority. Foreign Central Authorities are encouraged to contact the Australian Central Authority to ensure that the request meets Australia’s requirements and that the requested assistance can be provided under Australian law.
Step 3: Indicate the mechanism used to seek assistance
Is there a bilateral or multilateral treaty/convention in place? If not, it may be stated in the request that assistance would be provided in return to Australia under similar circumstances.
Step 4: Identify the relevant authority
The request should identify the relevant investigating and/or prosecuting authority.
Step 5: Summarise the case
The summary of facts should identify the suspect/s, explain why it is believed that evidence is located in Australia, and include sufficient information to enable Australia to undertake a dual criminality assessment.
Step 6: Set out the applicable legal provisions
The request should include all relevant offence and penalty provisions related to the investigation and/or prosecution.
Step 7: Identify the assistance being sought
The request should outline exactly what assistance is sought from Australia, any particular procedural requirements that must be met, and any information that can facilitate/clarify the request. For example:
- Witness statements/testimony: indicate whether evidence provided needs to be sworn/affirmed
- Documentary evidence: state the location where the documents are believed to be held
- Search and seizure: include a clear description of the evidence to be seized
- Enforcing an order to seize proceeds of crime: include an official, certified copy of the relevant order(s)
- Provision of existing evidentiary material: explain how evidence lawfully obtained in an Australian investigation will be relevant to the investigation or prosecution
- Transfer of prisoners to give evidence in person: include undertakings pertaining to the safe passage of the prisoner
Step 8: Highlight any specific confidentiality requirements
For example, does the suspect have knowledge of the investigation relating to the request?
Step 9: Identify any urgency in the execution of the request
Is there a specific time period within which the assistance is sought, for example relating to a pending court proceeding?
Step 10: Provide a list of relevant contact points in the requesting country
The request should include contact details for the relevant law enforcement and/or prosecution authorities, as well as the Central Authority.
Step 11: Translate the request
Australia requires requests to be provided in writing in English.
Step 12: Limitations on use of evidence provided
Any evidential material provided by Australia in response to a request may only be used for the specific purpose stated in the request. If the requesting country wishes to use the evidence for any other purpose, consent must be sought from the Australian Central Authority.
Key takeaways
Countries seeking mutual legal assistance from Australia are encouraged to follow the above steps to ensure that the request fulfils Australian requirements, and that Australia can legally facilitate the request. Successful MLA requests enable swift investigations and prosecutions, and help in the global fight against corruption and transnational crime.
