Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Mutual Assistance in Criminal Matters (Vietnam) Amendment Regulation 2016

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Legislative Instrument

2.         The Mutual Assistance in Criminal Matters Act 1987 (the Act) provides the legislative basis for mutual assistance in Australia. Mutual assistance is the process by which countries provide formal government to government assistance in the investigation and prosecution of criminal offences, and related proceedings. Mutual assistance is a key tool in international crime cooperation and is used where evidence or information relating to a criminal investigation, prosecution or related proceeding is located in a foreign country. 

3.         Under the Act, Australia is able to make and receive requests for assistance to and from any country. The Act allows regulations to be made to provide that the Act applies to a foreign country subject to the terms of a bilateral or multilateral treaty. 

4.         The Mutual Assistance in Criminal Matters (Vietnam) Regulation 2015 (the Principal Regulation) gives effect in Australian domestic law to Australia's mutual assistance obligations under the Treaty on Mutual Legal Assistance in Criminal Matters between Australia and the Socialist Republic of Viet Nam, done at Sydney on 2 July 2014 (the Treaty).

5.         The Mutual Assistance in Criminal Matters (Vietnam) Amendment Regulation 2016 (the Regulation) corrects an editorial formatting error in paragraph 1(a) of Article 14 in Schedule 1 of the Principal Regulation to clarify that the words 'in respect of any act or omission which preceded the person's departure' in paragraph 1(a)(ii) also apply to paragraph 1(a)(i). This ensures the safe conduct provision reflects the signed Treaty text and is consistent with sections 26 and 27 of the Act.

 

 

 

Human Rights Implications

6.         This legislative instrument implements Australia's obligations under the Treaty and engages the following human right with reasonable and appropriate limitations, where necessary: 

*         The right to security of the person and freedom from arbitrary detention

The formatting error in paragraph 1(a) of Article 14 in Schedule 1 of the Principal Regulation effectively provides that, unless certain circumstances apply, any person transferred to the Requesting State for the purpose of giving evidence or assisting in an investigation shall not be detained, prosecuted, punished, or subjected to any other restriction of personal liberty in the Requesting Party.

The Regulation clarifies that, unless certain circumstances apply, a person who has been transferred to the Requesting Party for the purpose of giving evidence or assisting in an investigation shall not be detained, prosecuted, punished, or subjected to any other restriction of personal liberty in the Requesting Party in respect of any act or omission which preceded the person's departure from the Requested Party.

The amendment clarifies that a person is protected, for a certain time period, from detention or punishment in respect of acts or omissions that preceded their leaving the Requested Party. It also ensures that, where, for example, the person transferred is a prisoner in the Requested Party, that person will continue to be subject to appropriate restrictions during the period of their transfer to the Requesting Party.

The amendment is consistent with a person's right to security and freedom from arbitrary detention under Article 9 of the International Covenant on Civil and Political Rights.

Conclusion

This legislative instrument engages the right to security of the person and freedom from arbitrary detention in a reasonable and proportionate way. As such, this instrument is compatible with human rights.

Michael Keenan

 

Minister for Justice