Chapter 18
Requests for information

Provision of material lawfully obtained

18.35There is no procedure in MACMA for when material that has been lawfully obtained on behalf of Country X can be provided to Country Y. It is therefore unclear whether the Central Authority could provide the documents to Country Y without further court involvement.

18.36The Australian Mutual Assistance in Criminal Matters Act 1987 (Cth) provides:

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 the 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.
However, the section goes on to express that it:864

… does not permit the Attorney General to authorise the provision to the requesting country of material obtained through the use of a surveillance device unless the request relates to an investigation into, or proceedings in relation to, a serious offence against the laws of that country that is punishable by a maximum term of imprisonment of 3 years or more, by imprisonment for life or by the death penalty.

18.37Currently, MACMA has a double gatekeeping function for a search warrant or other coercive orders in that it requires both agreement by the Attorney-General and successful application to the court. As a practical matter, it should not be necessary to reapply to the court in respect of the same information that has already been lawfully obtained. However, the normal use of both the Central Authority and the courts in the process of undertaking coercive actions to access materials is an important gatekeeping mechanism.


Q80 How should MACMA deal with a request received by a foreign country for material that has already been lawfully obtained under a warrant or order? Should any involvement from the court be required?

864Mutual Assistance in Criminal Matters Act 1987 (Cth), s 13A(2).