Production of evidence - national proceedings

Commonwealth of Australia

Australia - Mutual Assistance in Criminal Matters Act No. 85 1987 (2018)

Part II—Assistance in relation to taking of evidence and production of documents or other articles
Division 2—Requests by foreign countries
13 Requests by foreign countries for the taking of evidence or the production of documents
(1) This section applies if a foreign country (the requesting country) requests:
(b) that documents or other articles in Australia be produced;
for the purposes of a proceeding in relation to a criminal matter in that country or another foreign country (the foreign proceeding).

Part II—Assistance in relation to taking of evidence and production of documents or other articles
Division 2—Requests by foreign countries
13A Requests by foreign countries for provision of material lawfully obtained
(1) If:
(a) a foreign country (the requesting country) has commenced an investigation into, or proceedings in relation to, a serious offence against the laws of that country; and
(b) that foreign country requests the provision of material relevant to that investigation or those proceedings; and
(c) the Attorney General is satisfied that the material requested is:
(i) material lawfully obtained by an enforcement agency in Australia; and
(ii) material lawfully in the possession of that enforcement agency;
the Attorney General may, by writing in accordance with the approved form, authorise the provision of that material to the requesting country.
(2) The Attorney General may only authorise the provision to the requesting country of material specified in column 1 of the following table if the request relates to a serious offence against the laws of that country specified in column 2 of the table:

Offences for which provision of particular material may be authorised
Item Column 1 Column 2
1 material that is or includes protected information a serious offence punishable by a maximum penalty of imprisonment for 3 years or more, imprisonment for life or the death penalty
2 material that is or includes lawfully accessed information or stored communications warrant information a serious offence punishable by a maximum penalty of:
(a) imprisonment for 3 years or more, imprisonment for life or the death penalty; or
(b) a fine of an amount that is at least equivalent to 900 penalty units
3 material that is or includes lawfully intercepted information or interception warrant information (a) a serious offence punishable by a maximum penalty of imprisonment for 7 years or more, imprisonment for life or the death penalty; or
(b) a cartel offence punishable by a maximum penalty of a fine of an amount that is at least equivalent to $10,000,000

Part IIIA—Assistance in relation to stored communications
15B Requests by foreign countries for stored communications
The Attorney General may, in his or her discretion, authorise the Australian Federal Police or a police force or police service of a State, in writing, to apply for a stored communications warrant under section 110 of the Telecommunications (Interception and Access) Act 1979 if the Attorney General is satisfied that:
(a) an investigation, or investigative proceeding, relating to a criminal matter involving an offence against the law of a foreign country (the requesting country) has commenced in the requesting country; and
(b) the offence to which the investigation, or investigative proceeding, relates is punishable by a maximum penalty of:
(i) imprisonment for 3 years or more, imprisonment for life or the death penalty; or
(ii) a fine of an amount that is at least equivalent to 900 penalty units; and
(c) there are reasonable grounds to believe that stored communications relevant to the investigation, or investigative proceeding, are held by a carrier; and
(d) the requesting country has requested the Attorney General to arrange for access to the stored communications.
Note: Information obtained under the warrant may only be communicated to the requesting country on certain conditions: see subsection 142A(1) of the Telecommunications (Interception and Access) Act 1979.

Part IIIB—Assistance in relation to telecommunications data
15D Requests by foreign countries for telecommunications data
(1) This section applies if:
(a) a foreign country requests the disclosure of specified information or specified documents that come into existence during a specified period; and
(b) the information or documents relate to the fact of a communication passing over a telecommunications system.
(2) To avoid doubt, information or documents do not relate to the fact of a communication passing over a telecommunications system:
(a) if the information is the contents or substance of a communication; or
(b) to the extent that the documents contain the contents or substance of a communication.
(3) The Attorney General may authorise the making of an authorisation under section 180B of the Telecommunications (Interception and Access) Act 1979, of a disclosure of information or documents to which this section applies, if he or she is satisfied that:
(a) an investigation relating to a criminal matter involving an offence against the law of the foreign country has commenced in that country; and
(b) the offence:
(i) is punishable by imprisonment for 3 years or more, imprisonment for life or the death penalty; or
(ii) involves an act or omission that, if it had occurred in Australia, would have constituted a serious offence within the meaning of section 5D of the Telecommunications (Interception and Access) Act 1979.

Rome Statute

Article 93 Other forms of cooperation

1. States Parties shall, in accordance with the provisions of this Part and under procedures of national law, comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions:

(b) The taking of evidence, including testimony under oath, and the production of evidence, including expert opinions and reports necessary to the Court;