What is mutual legal assistance?
Mutual assistance is a process that countries use to obtain government to government assistance in criminal investigations and prosecutions. Mutual assistance is also used to recover the proceeds of crime. Mutual assistance to and from Australia is governed by the Mutual Assistance in Criminal Matters Act 1987 (Cth) (the Mutual Assistance Act).
Provision of lawfully obtained material to foreign countries
Section 13A of the Mutual Assistance Act deals with requests made by foreign countries for lawfully obtained material. When a foreign country makes a request for material relating to an investigation or proceeding of a serious offence (in their jurisdiction), the Attorney-General must be satisfied that the material requested:
- was lawfully obtained by an enforcement agency in Australia; and
- is lawfully in the possession of that enforcement agency.
The Attorney-General can only make their decision in accordance with the table of specified offences enumerated in section 13A(2) of the Mutual Assistance Act. Furthermore, section 13A(6) of the Mutual Assistance Act defines ‘material lawfully obtained by an enforcement agency in Australia’ to include:
- material obtained from individuals or entities by consent; and
- material obtained by warrant or the exercise of a coercive power by a court in Australia for the purposes of a domestic investigation or prosecution.
Preventing the provision of material to an overseas jurisdiction
Judicial review is the most direct way of challenging the exchange of incriminating information to a foreign jurisdiction. Judicial review is a type of court proceeding, where a judge reviews the lawfulness of a decision or action, or a failure to act, by a public body exercising a public function (including the Police and the Attorney-General).
On what basis could one seek judicial review?
i. Material was unlawfully obtained
One could seek judicial review on the basis that the Police unlawfully obtained the material in question. In other words, the police’s conduct fell outside the scope of their powers (as provided by the relevant Commonwealth or State criminal procedure law) which amounted to what is called a “jurisdictional error”.
It should be noted that Courts do not generally interfere with criminal justice processes – such as the collection of evidence or arresting a suspect – by way of judicial review before substantive criminal proceedings have commenced. One key policy reason for such caution is that judicial review can be used as a tactic to delay those criminal proceedings.
However, making a judicial review application for the purpose of preventing incriminating evidence being given to a foreign jurisdiction is an exceptional circumstance and should be enough reason for a Court to hear the matter even before a person is charged. Accordingly, if the exchange of information is left unchallenged, it could leave a person exposed to criminal charges in an overseas jurisdiction that has higher penalties than if that person were tried for the same conduct in Australia.
If jurisdictional error is successfully made out, then a person could seek the following remedies:
- Declaration – The Court could declare that the police unlawfully obtained the material sought. This would put the Attorney–General on notice and would force him or her to refuse the production of such material to the requesting country under section 13A of the Mutual Assistance Act.
- Injunction – This is a court order that would prevent or restrain any material that was unlawfully obtained from going over to the requesting country.
ii. Other circumstances in which the Attorney-General can refuse assistance
Section 8 of the Mutual Assistance Act allows the Attorney-General to refuse assistance to a request on the basis of several but narrow circumstances. For example, the Attorney-General can refuse assistance if the person is only being investigated or prosecuted by the requesting country for a political offence. Thus, judicial review could be available on the basis that the Attorney General failed to consider these circumstances and similar remedies – such as declaratory relief – could be sought.
In conclusion, though mutual legal assistance has enhanced the investigation and prosecution of transnational crime, there are not many avenues available to challenge these requests made by foreign countries nor is there a lot of time. Thus, persons should seek legal advice if they suspect they are being investigated by foreign law enforcement to allow enough time to mount a possible challenge to mutual assistance.
Nyman Gibson Miralis provides expert advice and representation in cases involving international investigations and mutual legal assistance.
Contact us if you require assistance.