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II SÉRIE-A — NÚMERO 3

TREATY BETWEEN THE REPUBLIC OF PORTUGAL AND AUSTRALIA ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS

The Republica of Portugal and Australia:

Desiring to make more effective the cooperation of the two countries in combating crime by extending to each other the widest measure of mutual assistance in criminal matters,

have agreed as follows:

Article 1 Scope of application

1 — The Contracting Parties shall, in accordance with this Treaty, grant to each other assistance in investigations or proceedings in respect of offences within the jurisdiction of the judicial authorities of the Requesting Party at the time when assistance is requested.

2 — This Treaty does not apply to arrests, the enforcement of sentences or offences under military law which are not offences under ordinary criminal law.

Article 2 Dual criminality

1 — Assistance may be given even if the offence is not an offence under the law of the Requested Party, except in the case of a request for search and seizure of property. In such a case it shall be necessary that the offence in respect of which assistance is requested shall also be an offence under the law of the Requested Party.

2 — In relation to fiscal offences, assistance may also be given if the acts or omissions constituting the offence amount to an offence of the same nature under the law of the Requested Party. Assistance may not be refused on the grounds that the law of the Requested Party does not impose the same kind of tax or duty or does contain a tax or duty, customs or exchange regulation of the same kind as the law of the Requesting Party.

3 — For the purpose of this article, in determining whether an offence is an offence under the laws of both Contracting Parties it shall not matter wether the laws of the Contracting Parties place the acts or omissions constituting the offence within the same category of offence or denominate the offence by the same terminology.

Article 3 Refusal of assistance

1 — Assistance shall be refused if the Requested Party considers that:

a) The request relates to a political offence or an offence connected with a political offence; or

b) To comply with the request would impair its sovereignty, security, ordre public or its other essential interests; or

c) There are substantial grounds for believing that the request for assistance has been made to facilitate the prosecution of a person on account of that person's race, sex, religion,

nationality or political opinions or that that person's position may be prejudiced for any of these reasons.

2 — Assistance may be refused if the Requested Party considers that there are any other substantial grounds that would make the granting of assistance unreasonable.

3 — Before refusing to grant a request for assistance the Requested Party shall consider whether assistance may be granted subject to such conditions as it deems necessary. If the Requesting Party accepts assistance subject to these conditions, it shall comply with the conditions.

4 — The Requested Party shall promptly inform the Requesting Party of a decision of the Requested Party not to comply in whole or in part with a request for assistance and the reasons for that decision.

Article 4 Law applicable

Request for assistance shall be carried out in accordance with the law of the Requested Party and in the manner requested by the Requesting Party insofar as it is not incompatible with the law of the Requested Party.

Article 5 Execution of Requests

1 — In response to a request, the Requested Party:

a) Shall send certified copies of the documents unless the Requesting Party expressly requests the originals;

b) May refuse or postpone the delivery of material or original documents if its law does not permit it, or if the material or documents are required for proceedings within its jurisdiction; and

c) Shall notify the Requesting Party of the results of the request, and, if requested, of the proposed date and place of execution of the request, and the entitlement, if any, of persons to be present.

2 — The Requesting Party shall return the material and documents provided in a response to a request as soon as possible unless the requested Party, without prejudice to its rights or the rights of third parties, waives its return.

Article 6 Service of documents

1 — The Requested Party shall serve judicial decisions or any other documents relating to proceedings which are transmitted to it for that purpose by the Requesting Party.

2 — The Requested Party may effect service of any document by mail or, if the Requesting Party so requests, in any other manner required by the law of the Requesting Party which is not inconsistent with the law of the Requesting Party.