Mutual assistance in death penalty matters
Note: This is for general information only. It does not give legal advice on the operation of the Mutual Assistance in Criminal Matters Act 1987 (Mutual Assistance Act) and should not be relied on as legal advice.
The Mutual Assistance in Criminal Matters Act 1987 (the Mutual Assistance Act) regulates the provision of mutual assistance in death penalty cases. Mutual assistance requests can be made at various stages of the law enforcement process, starting from investigation, through prosecution to sentencing and appeal. The rules that apply to the provision of mutual assistance in death penalty cases vary depending on whether the matter is only at the investigation stage or whether changes have been laid.
Section 8(1A) of the Mutual Assistance Act provides that a request by a foreign country for mutual assistance must be refused if it relates to the prosecution or punishment of a person charged with, or convicted of, an offence in respect of which the death penalty may be imposed in the foreign country, unless the Attorney-General or the Minister for Home Affairs is of the opinion, having regard to the special circumstances of the case, that the assistance requested should be granted.
‘Special circumstances’ is not defined in the Mutual Assistance Act. An example of a ‘special circumstance’ is when the foreign country provides an undertaking that the death penalty will not be imposed or, if imposed, will not be carried out. Another example of a ‘special circumstance’ is that the assistance provided would assist a defendant to prove their innocence.
Section 8(1B) of the Mutual Assistance Act covers cases where the person has not yet been charged or convicted. It gives the Attorney-General or the Minister for Home Affairs a discretion to refuse a request if the Attorney-General or the Minister for Home Affairs:
- believes that the provision of the assistance may result in the death penalty being imposed on a person; and
- after taking into consideration the interests of international criminal co-operation, is of the opinion that in the circumstances of the case the request should not be granted.
Police to police assistance and the death penalty
The Australia Federal Police (AFP) Practical Guide on International Police to Police Assistance in Death Penalty Charge Situations provides that the AFP can assist foreign countries on a police-to-police basis where no charges have been laid, regardless of whether the foreign country may be investigating offences that attract the death penalty.
Where charges have been laid in the foreign country, and the offences carry the death penalty, the AFP cannot provide assistance on a police-to-police basis unless the Attorney-General or the Minister for Home Affairs approves the provision of the assistance.
