Trans-national crime is becoming more prevalent, and investigations and prosecutions which have an international aspect are becoming more common. The result of this is that a greater number of Commonwealth prosecutions are reliant on assistance from foreign law enforcement authorities, or could be greatly supported by that assistance.
Often matters that have an international aspect are also sensitive or significant cases. For example, terrorist cases, people smuggling cases and sexual servitude cases often have an international dimension. The international aspect of this work is an important part of the practice of the Commonwealth Director of Public Prosecutions (CDPP).
The CDPP is involved in two main categories of international work: Extradition and Mutual Assistance. Extradition and Mutual Assistance are essentially international systems that allow cooperation between governments in the investigation and prosecution of criminal matters. Australia participates in those systems through the Australian Central Authority, which is part of the Commonwealth Attorney-General’s Department.
The CDPP’s international work is coordinated in the International Assistance and Specialist Agencies Practice Group.
The Australian Central Authority, within the Attorney-General’s Department, is responsible for processing all incoming and outgoing extradition requests, except requests to or from New Zealand, where there is a simplified procedure for extradition. The CDPP is responsible for dealing with incoming requests for extradition from New Zealand.
The CDPP has a role in preparing extradition requests to foreign countries in matters involving Commonwealth offences. The CDPP has no role in cases where extradition is sought for an offence against State or Territory law. In those cases, the authorities of the relevant State or Territory deal directly with the Australian Central Authority.
Extradition is a specialist area of the law. Documents submitted in support of an extradition request must meet the requirements of the Extradition Act 1988 and the relevant treaty. Given the widely differing legal systems throughout the world, the provision of these documents, both in support of outgoing and incoming requests, requires specialist expertise.
Some extradition cases may take a number of years to reach finality.
Mutual assistance is the formal process by which countries provide assistance to each other to investigate and prosecute offences, and to recover the proceeds of crime. The formal mutual assistance regime relies on a network of international relations, and the goodwill of countries to assist each other in the investigation and prosecution of criminal matters.
This international network is partly underpinned by a number of international treaties. Australia is currently a signatory to over 20 bilateral mutual assistance treaties and a number of international conventions which assist the mutual assistance process. Australia also has a number of important bilateral relationships with non-treaty countries based on the principle of reciprocity. Countries provide assistance on the understanding that they will receive similar assistance in return, if requested.
The mutual assistance regime in Australia is governed by the Mutual Assistance in Criminal Matters Act 1987. The Australian Central Authority is responsible for mutual assistance matters in Australia. The International Assistance and Specialist Agencies Practice Group is responsible for liaising with the Australian Central Authority about mutual assistance matters.
The formal mutual assistance regime runs parallel with a less formal system of international cooperation between investigating agencies. The formal mutual assistance channel is usually used when a request for assistance requires the use of coercive powers in the requested country, or the material requested is required in a form that may be admissible in criminal proceedings in the requesting country.
The main types of assistance provided under the mutual assistance regime involve the use of coercive powers and include:
- taking evidence from witnesses for use in foreign criminal proceedings;
- executing search warrants and notices to produce material; and
- locating, restraining and recovering proceeds of crime.
The CDPP continues to draft mutual assistance requests in those matters where a brief of evidence has been referred to the CDPP, where proceedings for a Commonwealth criminal offence have been commenced or where the CDPP has been specifically funded to do this work. The CDPP may also become involved in those cases where there is a request to take proceeds of crime action.