Extradition (Commonwealth Countries) Amendment Act 1985 (Cth)
Section
1. Short title, &c.
2. Commencement
3. Interpretation
4. Application of Part in relation to Commonwealth countries
5. Restrictions on surrender of persons to Commonwealth countries
6. Restrictions on power of Attorney-General to authorize the apprehension, or order the surrender, of a fugitive
7. Repeal of section 12 and substitution of new section—
12. Notice by Attorney-General
8. Issue of warrants
9. Insertion of new sections—
14a. Searches after apprehension
14b. Search warrants
10. Proceedings after apprehension of person
11. Repeal of section 16 and substitution of new sections—
16. Power of Magistrate or court to release, or postpone the surrender of, a person
16a. Review of Magistrate’s decision
12. Surrender of fugitive to Commonwealth country
13. Discharge of fugitive who is not conveyed out of Australia within 2 months
14. Interpretation
15. Person surrendered by Commonwealth country in respect of an offence not to be prosecuted or detained for other offences
16. Insertion of new sections—
25a. Searches after apprehension
25b. Search warrants
17. Proceedings after apprehension of person
18. Repeal of section 27 and substitution of new section—
27. Restriction on power of Magistrate to order surrender of person
TABLE
OF PROVISIONS—
Section
19. Review of order of Magistrate
20. Discharge of person who is not conveyed out of Australia within one month
21. Repeal of section 32 and substitution of new section —
32. Jurisdiction of Courts
22. Insertion of new section
32a. Evidence of certain matters
23. Overseas documents may be admitted in evidence if duly authenticated
24. Taking of evidence in respect of criminal proceedings in Commonwealth countries
25. Repeal of section 33a and substitution of new section—
33a. Taking of evidence for purposes of extradition
26. Repeal of section 36
27. Repeal of Schedule 2
28. Amendments consequential on repeal of Schedule 2 to Principal Act
29. Formal amendments
30. Savings
SCHEDULE 1
AMENDMENTS CONSEQUENTIAL UPON REPEAL OF SCHEDULE 2 TO PRINCIPAL ACT
SCHEDULE 2
FORMAL AMENDMENTS
[
BE IT ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows:
(a) by omitting from sub-section (1) the definition of “declared Commonwealth country” and substituting the following definitions:
“‘declared Commonwealth country’ means a country declared by regulations under sub-section 8 (1) or by notice under sub-section 8 (3) to be a Commonwealth country in relation to which Part II applies;
‘extradition treaty’ means a treaty relating to the surrender of fugitives;
‘Federal Court’ means the Federal Court of Australia;”;
(b) by omitting “Chief, Stipendiary, Police, Resident or Special Magistrate” from paragraphs (a) and (b) of the definition of “Magistrate” in sub-section (1) and substituting “Magistrate, or as a Chief, Stipendiary, Police, Resident or Special Magistrate,”;
(c) by adding at the end of sub-section (1) the following definition:
“‘treaty’ includes a convention, agreement or arrangement.”;
(d) by omitting sub-section (1a) and substituting the following sub-section:
“(1a) An offence against the law of, or of a part of, a declared Commonwealth country (including an offence against such a law relating to taxation, customs duties, foreign exchange control or any other revenue matter) for which a requisition for the surrender of a person has been made to the Attorney-General is an extradition crime for the purposes of this Act if, but only if—
(a) the maximum penalty for the offence is death or imprisonment for not less than 12 months; and
(b) an act or omission by the person which is, in or in connection with the requisition for the surrender of the person, alleged to have taken place or of which evidence is produced in connection with the requisition for the surrender of the person, or any equivalent act or omission, would, if it took place, at the time when the requisition was made, in, or within the jurisdiction of, the part of Australia where the person is found, constitute an offence against the law in force in that part of Australia that—
(i) is described in the Schedule; or
(ii) would be so described if the description concerned contained a reference to any intent or state of mind on the part of the person committing the offence, or to any circumstance of aggravation, necessary to constitute the offence.”; and
(e) by omitting sub-section (3) and substituting the following sub-section:
“(3) Where a person has been convicted in the absence of the person of an offence against the law of, or of a part of, a country other than Australia, whether or not the conviction is a final conviction, then, for the purposes of this Act, the person shall be deemed not to have been convicted of that offence but shall be deemed to be accused of that offence.”.
“(3) The Secretary to
the Department of Foreign Affairs may, by notice in writing published in the
“(4) A notice under sub-section (3) in relation to a country other than Australia may provide that this Part applies in relation to that country subject to such limitations, conditions, exceptions or qualifications as are specified in the notice and, where a notice in force under this sub-section in relation to such a country so provides, this Part applies in relation to that country subject to those limitations, conditions, exceptions or qualifications.
“(5) A notice under
sub-section (3), unless sooner revoked, ceases to have effect upon the
expiration of 3 months after the day on which it is published in the
“(6) Sections 48 (other
than paragraph (1) (a)), 49 and 50 of the
(a) references to regulations were references to notices; and
(b) references to 15 sitting days of a House of the Parliament were references to 5 sitting days of that House.”.
(a) by omitting from sub-section (1) “(2) of section 17” and substituting “17 (2) or (2b)”;
(b) by omitting sub-section (2) and substituting the following sub-section:
“(2) If the Attorney-General is satisfied—
(a) by reason of—
(i) the trivial nature of the offence that a fugitive is alleged to have committed;
(ii) the accusation against a fugitive not having been made in good faith or in the interests of justice; or
(iii) the passage of time since the offence is alleged to have been committed or was committed; or
(b) for any other reason,
that it would be unjust, oppressive or too severe a punishment to surrender the fugitive, or to surrender the fugitive before the
expiration of a particular period, the Attorney-General shall not issue a warrant under sub-section 17 (2) or (2b) in respect of the fugitive, or shall not issue such a warrant before the expiration of that period, as the case may be.”;
(c) by omitting from sub-section (3) “returned, or has had an opportunity of returning, to Australia” and substituting “returned to Australia or has had an opportunity of leaving that country”;
(d) by omitting from sub-section (3) “(2) of section 17” and substituting “17 (2) or (2b)”;
(e) by omitting sub-paragraph (3) (a) (i) and substituting the following sub-paragraph:
“(i) the offence in respect of which the fugitive was surrendered or any lesser offence of which the fugitive could be convicted upon proof of the facts on which the surrender of the fugitive was ordered; or”; and
(f) by omitting sub-paragraph (3) (b) (i) and substituting the following sub-paragraph:
“(i) a lesser offence of which the fugitive could be convicted upon proof of the facts on which the surrender of the fugitive to the first-mentioned country was ordered; or”.
“12. (1) Subject to sub-section (2), where a requisition for the surrender of a fugitive who is, or is suspected of being, in or on the way to Australia is made to the Attorney-General by a declared Commonwealth country, the Attorney-General may, in his or her discretion—
(a) if a warrant for the apprehension of the fugitive has not been issued under section 14—by notice in writing in accordance with the form prescribed for the purposes of this paragraph, state that the requisition has been made and authorize the issuing by any Magistrate of a warrant for the apprehension of the fugitive; or
(b) if a warrant for the apprehension of the fugitive has been issued under section 14 and a person has been apprehended under the warrant—by notice in writing in accordance with the form prescribed for the purposes of this paragraph and directed to any Magistrate before whom the person may be brought, inform the Magistrate that the requisition has been made.
“(2) The Attorney-General shall not give a notice under sub-section (1) in respect of a fugitive whose surrender is requested by a declared Commonwealth country if the Attorney-General is of the opinion that—
(a) the fugitive is not liable to be surrendered to the country; or
(b) the offence to which the requisition for the surrender of the fugitive relates is, or is by reason of the circumstances in which it is alleged to
have been committed or was committed, an offence of a political character or that the requisition for his surrender has in fact been made with a view to try or punish him for an offence of a political character.”.
“14a. (1) A Police Officer who apprehends a person pursuant to a warrant issued under section 14 may search the person or the clothing that the person is wearing, and any property under the control of the person, if the Police Officer has reasonable grounds for suspecting that there is concealed, on, or in the clothing of, the person or in that property, any article, including a sum of money—
(a) that may be material as evidence in proving an offence to which the requisition for the surrender of the person relates; or
(b) that has been acquired by the person as a result of such an offence.
“(2) Sub-section (1) does not authorize a Police Officer to remove, or to require the person to remove, any of the clothing that the person is wearing.
“(3) A Police Officer may seize any article found as a result of a search in accordance with sub-section (1) and may retain any article so seized pending any direction from the Attorney-General as to the manner in which the article is to be dealt with.
“(4) The powers conferred by this section are in addition to, and not in derogation of, any other powers conferred by law.
“(5) In this section, ‘Police Officer’ means a member or special member of the Australian Federal Police or a member of the Police Force of a State or Territory.
“14b. (1) Where an information on oath is laid before a Magistrate alleging that there are reasonable grounds for suspecting that there may be upon any land, or upon or in any premises, vessel, aircraft or vehicle, any article, including a sum of money, that may be material as evidence in proving an offence to which the requisition for the surrender of a person relates or that has been acquired by a person as a result of such an offence, and the information sets out those grounds, the Magistrate may issue a search warrant
in accordance with the appropriate form prescribed for the purposes of this sub-section authorizing a Police Officer named in the warrant, with such assistance as the Police Officer thinks necessary, and if necessary by force—
(a) to enter upon the land or upon or into the premises, vessel, aircraft or vehicle;
(b) to search the land, premises, vessel, aircraft or vehicle for any such article; and
(c) to seize any such article found upon the land or upon or in the premises, vessel, aircraft or vehicle.
“(2) A Magistrate shall not issue a warrant under sub-section (1) unless—
(a) the informant or some other person has given to the Magistrate, either orally or by affidavit, such further information (if any) as the Magistrate requires concerning the grounds on which the issue of the warrant is being sought; and
(b) the Magistrate is satisfied that there are reasonable grounds for issuing the warrant.
“(3) There shall be stated in a warrant issued under this section—
(a) a statement of the purpose for which the warrant is issued, which shall include a reference to the nature of the offence in relation to which the entry and search are authorized;
(b) whether entry is authorized to be made at any time of the day or night or during specified hours of the day or night;
(c) a description of the kind of articles authorized to be seized; and
(d) a day, not being later than one month after the day of issue of the warrant, upon which the warrant ceases to have effect.
“(4) If, in the course of searching in accordance with a warrant issued under this section, for an article, including a sum of money, that may be material as evidence in proving an offence or has been acquired as a result of an offence, being an article of a kind specified in the warrant, a Police Officer finds any article, including a sum of money, that the Police Officer believes on reasonable grounds to be connected with the offence, although not of a kind specified in the warrant, and the Police Officer believes on reasonable grounds that it is necessary to seize that article in order to prevent its concealment, loss or destruction, the warrant shall be deemed to authorize the Police Officer to seize that article.
“(5) Where a Police Officer seizes an article found as a result of a search in accordance with this section, the Police Officer may retain the article pending any direction from the Attorney-General as to the manner in which the article is to be dealt with.
“(6) In this section, ‘Police Officer’ has the same meaning as in section 14a.”.
(a) by inserting after sub-section (2a) the following sub-section:
“(2b) Where, under sub-section (2), a Magistrate remands a person in custody after the person has made an application for bail, the person is not entitled to apply to any other court or person for release on bail.”;
(b) by omitting from sub-section (5) “such time as is reasonable” and substituting “45 days after the day on which the person was apprehended or within such further period as the Magistrate considers reasonable”;
(c) by inserting after sub-section (5) the following sub-sections:
“(5a) A person brought before a Magistrate under this section may—
(a) where the person was apprehended under a warrant issued otherwise than pursuant to an authority by the Attorney-General in a notice under paragraph 12 (1) (a) and the Magistrate receives a notice under paragraph 12 (1) (b)—after the Magistrate receives the notice by the Attorney-General under paragraph 12 (1) (b); or
(b) where the person was apprehended under a warrant issued pursuant to an authority by the Attorney-General in a notice under paragraph 12 (1) (a)—upon being brought before the Magistrate,
inform the Magistrate that the person consents to being surrendered to the declared Commonwealth country that made the requisition for the surrender of the person.
“(5b) Where a person informs a Magistrate that the person consents to being surrendered to a declared Commonwealth country, the Magistrate shall, unless the Magistrate has reason to believe that the consent was not given voluntarily—
(a) advise the person that the effect of so consenting will be that—
(i) the country requesting the surrender of the person will not be required to produce the warrant or the evidence referred to in sub-section (6);
(ii) the person will not be entitled to apply for a writ of
habeas corpus under sub-section 17 (1); and(iii) the person is liable to be surrendered to that Commonwealth country forthwith; and
(b) if, after the person has been advised in accordance with paragraph (a), the person again consents to being surrendered—commit the person to prison to await the warrant of the Attorney-General for the surrender of the person to that declared Commonwealth country.
“(5c) Where a Magistrate commits a person to prison in accordance with paragraph (5b) (b), sub-sections (6) and (6a) do not apply to or in relation to that person.”;
(d) by inserting in paragraph (6) (a) “or a duly authenticated copy of such a warrant” after “warrant”;
(e) by omitting from sub-paragraph (6) (b) (i) “the act or omission constituting that crime” and substituting “an act or omission by the person of which evidence was produced in connection with the requisition for the surrender of the person, or any equivalent act or omission,”;
(f) by omitting from paragraph (6) (c) “hearing any evidence tendered” and substituting “taking into account any evidence properly adduced”;
(g) by inserting after sub-section (6) the following sub-section:
“(6a) A person referred to in paragraph (6) (b) is not entitled to adduce, and a Magistrate is not entitled to receive, evidence to controvert an allegation that the person has committed an act or omission in respect of which the surrender of the person is requested.”; and
(h) by adding at the end of sub-section (8) “and, where a Magistrate commits a person to prison under paragraph (5b) (b), the Magistrate shall include in the certificate to the Attorney-General a statement that the Magistrate has advised the person in accordance with paragraph (5b) (a)”.
“16. If a Magistrate
before whom a person is brought pursuant to section 15, or a court to which the
person has applied for a writ of
(a) by reason of—
(i) the trivial nature of the offence that the person is alleged to have committed or has committed;
(ii) the accusation against the person not having been made in good faith or in the interests of justice; or
(iii) the passage of time since the offence is alleged to have been committed or was committed; or
(b) for any other reason,
that it would be unjust, oppressive or too severe a punishment to surrender the person to a declared Commonwealth country, or to surrender the person before the expiration of a particular period, the Magistrate or court may—
(c) order that the person be released;
(d) order that the person be surrendered after the expiration of a period specified in the order and order the release of the person on bail until the expiration of that period; or
(e) make such other order as the Magistrate or court thinks just.
“16a. (1) Where, under sub-section 15 (6) or section 16, a Magistrate orders that a person be released, a declared Commonwealth country may apply to the Federal Court, or to the Supreme Court of the State or Territory in which the person was apprehended, for a review of the order, and the Court may review the order.
“(2) Where, after a person is released pursuant to an order under sub-section 15 (6) or section 16, a declared Commonwealth country applies under sub-section (1) of this section for a review of the order, a Magistrate may issue a warrant for the apprehension of the person in accordance with the form prescribed for the purposes of this sub-section.
“(3) A warrant issued under this section may be executed in any State or Territory.
“(4) The Court to which an application is made for a review of an order that a person be released may, whether the person was not released pursuant to the order before the application was made or was so released but was apprehended pursuant to a warrant issued under sub-section (2)—
(a) order the release on bail of the person on such terms and conditions as the Court thinks fit; or
(b) order that the person be kept in such custody as the Court directs in the State or Territory in which the person was last apprehended until the order has been reviewed.
“(5) The review of the order shall be by way of rehearing, and evidence in addition to, or in substitution for, the evidence given on the making of the order may be given on or in connection with the review, but the person whose surrender is requested is not entitled to adduce, and the Court is not entitled to receive, evidence to controvert an allegation that the person has committed an act or omission in respect of which the surrender of the person is requested.
“(6) For the purposes of a review under this section, a copy of a public document or of a document filed in a Department or office of the Commonwealth or of a State or Territory, certified to be a true copy of the document by the person purporting by the certificate to have charge of the document, is admissible as evidence of the facts stated in the copy.
“(7) Upon the review of an order, the Court may confirm or vary the order, or quash the order and make a new order in substitution for the order so quashed.
“(8) The order as confirmed or varied, or the substituted order, shall be executed according to its tenor as if it had been made by the Magistrate.
“(9) An appeal lies to the Full Court of the Federal Court from—
(a) an order confirmed under sub-section (7);
(b) an order as varied under sub-section (7); or
(c) an order made under sub-section (7) in substitution for an order quashed under that sub-section.
“(10) In an appeal, the Full Court shall have regard only to the evidence given in the proceedings out of which the appeal arose.
“(11) Except as provided by sub-section (9), an appeal does not lie from an order referred to in that sub-section.”.
(a) by omitting from sub-section (1) “apply to a court of competent jurisdiction” and substituting “, within that period of 15 days, apply either to the Federal Court, or to the Supreme Court of the State or Territory in which the person is held in custody,”;
(b) by omitting sub-section (2) and substituting the following sub-sections:
“(1a) The prisoner is not entitled to apply to the Federal Court or the Supreme Court of a State or Territory for a writ of
habeas corpus after the expiration of the period referred to in sub-section (1).“(1b) An appeal lies to the Full Court of the Federal Court from an order made on an application by the prisoner for a writ of
habeas corpus if the appeal is instituted within 15 days after the date of the decision of the Federal Court or the Supreme Court in relation to that application.“(1c) Except as provided by sub-section (1b), an appeal does not lie from an order referred to in that sub-section.
“(2) After—
(a) the expiration of the period referred to in sub-section (1); or
(b) if an application for a writ of
habeas corpus is made by the prisoner within that period and the court to which the application is made, or, where an appeal is brought from the decision of that court to the Full Court of the Federal Court, the Full Court, refuses to order that the prisoner be released—the expiration of the period of 15 days from the day of the decision of the first-mentioned Court or the Full Court of the Federal Court, as the case may be,whichever is the later, the Attorney-General may—
(c) if satisfied that the prisoner is liable to be surrendered to the declared Commonwealth country; and
(d) unless of the opinion that the offence to which the requisition for the surrender of the prisoner relates is, or is by reason of the
circumstances in which it is alleged to have been committed or was committed, an offence of a political character or that the requisition for his surrender has in fact been made with a view to try or punish him for an offence of a political character,
by warrant in accordance with the form prescribed for the purposes of this sub-section or, where the prisoner is held in custody otherwise than at a prison, in accordance with that form with such variations as are necessary to meet the circumstances of the case, order that the prisoner be delivered into the custody of a person specified in the warrant and be conveyed by that person to a place in that country or within the jurisdiction of, or of a part of, that country and there surrendered to some person appointed by that country to receive the prisoner.
“(2a) Sub-sections (1), (1a), (1b) and (2) do not apply in relation to a person committed to prison under paragraph 15 (5b) (b).
“(2b) Where a Magistrate—
(a) pursuant to paragraph 15 (5b) (b), commits a person (in this section referred to as the ‘volunteer prisoner’) to prison; or
(b) pursuant to sub-section 15 (7), orders that a person (in this section also referred to as the ‘volunteer prisoner’) who could be committed to prison under paragraph 15 (5b) (b) be held in custody,
to await the warrant of the Attorney-General for the surrender of the volunteer prisoner to a declared Commonwealth country, the Attorney-General may—
(c) if satisfied that the volunteer prisoner is liable to be surrendered to the declared Commonwealth country; and
(d) unless of the opinion that the offence to which the requisition for the surrender of the volunteer prisoner relates is, or is by reason of the circumstances in which it is alleged to have been committed or was committed, an offence of a political character or that the requisition for his surrender has in fact been made with a view to try or punish him for an offence of a political character,
by warrant in accordance with the form prescribed for the purposes of this sub-section or, where the volunteer prisoner is held in custody otherwise than at a prison, in accordance with that form with such variations as are necessary to meet the circumstances of the case, order that the volunteer prisoner be delivered into the custody of a person specified in the warrant and be conveyed by that person to a place in that country or within the jurisdiction of, or of a part of, that country and there surrendered to some person appointed by that country to receive the volunteer prisoner.”;
(c) by omitting from sub-section (3) “the last preceding sub-section” and substituting “sub-section (2) or (2b)”;
(d) by omitting from sub-section (5) “with the prisoner on his surrender” and substituting “to the declared Commonwealth country”; and
(e) by adding at the end the following sub-section:
“(8) A reference in sub-section (4), (5), (6) or (7) to a prisoner shall be construed as including a reference to a volunteer prisoner.”.
(a) by omitting from paragraph (b) “another court, the date of the decision of the other court” and substituting “the Full Court of the Federal Court, the date of the decision of the Full Court”; and
(b) by inserting “Federal Court, or the” before “Supreme Court”.
(a) by omitting “, or has had an opportunity of returning, to that country” and substituting “to that country or has had an opportunity of leaving Australia”;
(b) by omitting sub-paragraph (a) (i) and substituting the following sub-paragraph:
“(i) the offence in respect of which the person was surrendered or any lesser offence of which the person could be convicted upon proof of the facts on which the surrender of the person was granted; or”; and
(c) by omitting sub-paragraph (b) (i) and substituting the following sub-paragraph:
“(i) a lesser offence of which the person could be convicted upon proof of the facts on which the surrender of the person from the declared Commonwealth country was granted; or”.
“25a. (1) A Police Officer who apprehends a person pursuant to a warrant issued under section 24 or 25 may search the person or the clothing that the person is wearing, and any property under the control of the person, if the Police Officer has reasonable grounds for suspecting that there is concealed,
on, or in the clothing of, the person or in that property, any article, including a sum of money—
(a) that may be material as evidence in proving an offence in respect of which the warrant was issued; or
(b) that has been acquired by the person as a result of such an offence.
“(2) Sub-section (1) does not authorize a Police Officer to remove, or to require the person to remove, any of the clothing that the person is wearing.
“(3) A Police Officer may seize any article found as a result of a search in accordance with sub-section (1) and may retain any article so seized pending any direction from the Attorney-General as to the manner in which the article is to be dealt with.
“(4) The powers conferred by this section are in addition to, and not in derogation of, any other powers conferred by law.
“(5) In this section, ‘Police Officer’ means a member or special member of the Australian Federal Police or a member of the Police Force of a State or Territory.
“25b. (1) Where an information on oath is laid before a Magistrate alleging that there are reasonable grounds for suspecting that there may be upon any land, or upon or in any premises, vessel, aircraft or vehicle, any article, including a sum of money, that may be material as evidence in proving an offence in respect of which a warrant for the apprehension of a person was issued under section 24 or 25 or that has been acquired by a person as a result of such an offence, and the information sets out those grounds, the Magistrate may issue a search warrant in accordance with the appropriate form prescribed for the purposes of this sub-section authorizing a Police Officer named in the warrant, with such assistance as the Police Officer thinks necessary, and if necessary by force—
(a) to enter upon the land or upon or into the premises, vessel, aircraft or vehicle;
(b) to search the land, premises, vessel, aircraft or vehicle for any such article; and
(c) to seize any such article found upon the land or upon or in the premises, vessel, aircraft or vehicle.
“(2) A Magistrate shall not issue a warrant under sub-section (1) unless—
(a) the informant or some other person has given to the Magistrate, either orally or by affidavit, such further information (if any) as the Magistrate requires concerning the grounds on which the issue of the warrant is being sought; and
(b) the Magistrate is satisfied that there are reasonable grounds for issuing the warrant.
“(3) There shall be stated in a warrant issued under this section—
(a) a statement of the purpose for which the warrant is issued, which shall include a reference to the nature of the offence in relation to which the entry and search are authorized;
(b) whether entry is authorized to be made at any time of the day or night or during specified hours of the day or night;
(c) a description of the kind of articles authorized to be seized; and
(d) a day, not being later than one month after the day of issue of the warrant, upon which the warrant ceases to have effect.
“(4) If, in the course of searching in accordance with a warrant issued under this section, for an article, including a sum of money, that may be material as evidence in proving an offence or has been acquired as a result of an offence, being an article of a kind specified in the warrant, a Police Officer finds any article, including a sum of money, that the Police Officer believes on reasonable grounds to be connected with the offence, although not of a kind specified in the warrant, and the Police Officer believes on reasonable grounds that it is necessary to seize that article in order to prevent its concealment, loss or destruction, the warrant shall be deemed to authorize the Police Officer to seize that article.
“(5) Where a Police Officer seizes an article found as a result of a search in accordance with this section, the Police Officer may retain the article pending any direction from the Attorney-General as to the manner in which the article is to be dealt with.
“(6) In this section, ‘Police Officer’ has the same meaning as in section 25a.”.
(a) by omitting from sub-section (9) “with the person on his surrender” and substituting “to New Zealand”; and
(b) by omitting from sub-section (10) “the declared Commonwealth country” and substituting “New Zealand”.
“27. If a Magistrate before whom a person is brought under this Part is satisfied—
(a) by reason of—
(i) the trivial nature of the offence that the person is alleged tohave committed or has committed;
(ii) the accusation against the person not having been made in good faith or in the interests of justice; or
(iii) the passage of time since the offence is alleged to have been committed or was committed; or
(b) for any other reason,
that it would be unjust, oppressive or too severe a punishment to surrender the person to New Zealand, or to surrender the person before the expiration of a particular period, the Magistrate may—
(c) order that the person be released;
(d) order that the person be surrendered after the expiration of a period specified in the order and order the release of the person on bail until the expiration of that period; or
(e) make such other order as the Magistrate thinks just.”.
(a) by inserting in sub-section (1) “Federal Court or to the” before “Supreme Court”;
(b) by inserting after sub-section (1) the following sub-sections:
“(1a) Where, after a person is released pursuant to an order under section 27, the person bringing the warrant applies under sub-section (1) of this section for a review of the order, a Magistrate may issue a warrant for the apprehension of the person in accordance with the form prescribed for the purposes of this sub-section.
“(1b) A warrant issued under this section may be executed in any State or Territory.”;
(c) by omitting sub-section (2) and substituting the following sub-section:
“(2) The Court to which an application is made for a review of an order that a person be released may—
(a) order the release on bail of the person on such terms and conditions as the court thinks fit; or
(b) order that the person be kept in such custody as the court directs in the State or Territory in which the person was last apprehended until the order has been reviewed,
and may so order, where the order to be reviewed is an order that the person be released, whether the person was not released pursuant to the order before the application was made or was so released but was apprehended pursuant to a warrant issued under sub-section (1a).”; and
(d) by adding at the end the following sub-sections:
“(7) An appeal lies to the Full Court of the Federal Court from—
(a) an order confirmed under sub-section (5);
(b) an order as varied under sub-section (5); or
(c) an order made under sub-section (5) in substitution for an order quashed under that sub-section,
if the appeal is instituted within 15 days after the date of the decision of the Federal Court or the Supreme Court on the review of the order of the Magistrate.
“(8) In an appeal, the Full Court shall have regard only to the evidence given in the proceedings out of which the appeal arose.
“(9) Except as provided by sub-section (7), an appeal does not lie from an order referred to in that sub-section.”.
(a) by omitting from paragraph (b) “another court, the date of the decision of the other court” and substituting “the Full Court of the Federal Court, the date of the decision of the Full Court”; and
(b) by inserting “Federal Court, or the” before “Supreme Court”.
“32. The jurisdiction of the Supreme Court of a State or Territory in matters arising under section 16, 16a, 17, 18, 28 or 29 may be exercised by the Court constituted by a single Judge.”.
“32a. A certificate by the Attorney-General stating that—
(a) Australia or another specified country is a party to a specified treaty;
(b) the treaty entered into force for Australia or that other country, as the case may be, on a specified date; and
(c) as at the date of the certificate, the treaty remained in force for Australia or that other country,
is,
for the purposes of any proceedings under this Act,
(a) by inserting in paragraph (1) (d) “or a copy of an overseas warrant” after “warrant”;
(b) by omitting from paragraph (2) (c) “or” (last occurring); and
(c) by inserting after paragraph (2) (d) the following word and paragraph:
“; or (e) in the case of a document that purports to be a copy of an overseas warrant—
(i) the document purports to be certified by a Judge, Magistrate or officer in or of the country in which
the document was issued to be a true copy of the original overseas warrant; and
(ii) the original overseas warrant purports to be signed by a Judge, Magistrate or officer in or of the country in which the document was issued,”.
(a) by omitting sub-sections (1) and (2) and substituting the following sub-sections:
“(1) Where a request is made by a declared Commonwealth country that evidence be taken in Australia for the purposes of a criminal proceeding in a court or tribunal of that country other than a proceeding relating to an offence that is, or that is by reason of the circumstances in which it is alleged to have been committed, an offence of a political character, the Attorney-General may, by writing in accordance with a form prescribed for the purposes of this sub-section, authorize the taking of the evidence.
“(2) The reference in sub-section (1) to a criminal proceeding shall be construed as a reference to the trial of a person for an offence or to a proceeding to determine whether to place a person who is accused of an offence on trial for that offence.
“(2a) The Attorney-General shall not authorize the taking of evidence under sub-section (1) in relation to an offence unless an act or omission by the person that is, in or in connection with the request for the taking of the evidence, alleged to have taken place, or any equivalent act or omission, would, if it took place, at the time when the request was made, in, or within the jurisdiction of, Australia, constitute an offence against the law in force in Australia or in a part of Australia.
“(2b) Where the Attorney-General authorizes the taking of evidence under sub-section (1), a Magistrate may take the evidence on oath or affirmation of each witness appearing before the Magistrate to give evidence in relation to the matter, and a Magistrate who takes evidence under this sub-section shall—
(a) cause the evidence to be reduced to writing and certify at the end of that writing that the evidence was taken by the Magistrate; and
(b) cause the writing so certified to be sent to the Attorney-General.”;
(b) by omitting from sub-section (5) “The” and substituting “Subject to sub-section (5a), the”;
(c) by inserting after sub-section (5) the following sub-section:
“(5a) For the purposes of this section, the person charged with the offence against the law of, or a part of, the declared Commonwealth country is competent but not compellable to give evidence.”; and
(d) by omitting sub-section (6) and substituting the following sub-section:
“(6) The preceding provisions of this section apply in relation to a request made by New Zealand in like manner as they apply in relation to a request made by a declared Commonwealth country.”.
“33a. (1) Where a warrant has been issued in Australia for the apprehension of a person accused of an extraditable crime as defined by section 19 and that person is, or is suspected of being, in a declared Commonwealth country or within the jurisdiction of, or of a part of, a declared Commonwealth country, the Attorney-General may, by writing in accordance with the form prescribed for the purposes of this sub-section, authorize the taking of evidence in Australia for transmission to that country for use in any proceedings in that country for the surrender of the person to Australia.
“(2) Where the Attorney-General authorizes the taking of evidence under sub-section (1), a Magistrate may take the evidence on oath or affirmation of each witness appearing before the Magistrate to give evidence in relation to the matter, and a Magistrate who takes evidence under this sub-section shall—
(a) cause the evidence to be reduced to writing and certify at the end of that writing that the evidence was taken by the Magistrate; and
(b) cause the writing so certified to be sent to the Attorney-General.
“(3) At a proceeding before a Magistrate pursuant to this section, the accused person is not entitled to appear, either in person or by a legal or other representative.”.
section has, after the commencement of this section, the same effect as it would have had if Schedule 2 to the Principal Act had not been repealed and the amendments made to the Principal Act by section 28 of this Act, and any other amendments made to the Principal Act in consequence of the repeal of that Schedule, had not been made.
—————
SCHEDULE 1 Section 28
AMENDMENTS CONSEQUENTIAL UPON REPEAL OF SCHEDULE 2 TO PRINCIPAL ACT
1. The following provisions of the Principal Act are amended by omitting “Schedule 1” and substituting “the Schedule”:
Sub-sections 4 (4), (4a) and (4b), sub-paragraph 11 (3) (b) (ii), paragraph 19 (a), sub-paragraph 22 (b) (ii).
2. The Principal Act is further amended as set out in the following table:
Provision | Amendment |
Sub-section 15 (6).............. |
|
Sub-section 15 (7).............. |
|
Sub-section 24 (1).............. |
|
Section 25............................ |
|
Sub-section 26 (5).............. |
|
Sub-section 26 (6).............. |
|
Paragraph 33aa (2) (b)...... |
|
Schedule 1........................... | (a) Omit “SCHEDULE 1”, substitute “SCHEDULE”. |
|
————
SCHEDULE 2 Section 29
FORMAL AMENDMENTS
Provision | Amendment |
| Omit “(1) of section 31”, substitute “31 (1)”. |
Sub-section 4 (6).............. |
|
Sub-section 8 (1).............. |
|
Sub-section 11 (1)............ |
|
Sub-section 13 (1)............ | Omit “two”, substitute “2”. |
Sub-section 13 (2)............ |
|
Paragraph 14 (1) (a)......... |
|
Sub-section 14 (3)............ |
|
Sub-section 14 (4)............ |
|
Paragraph 14 (5) (a)......... |
|
Sub-section 15 (1)............ |
|
Sub-section 15 (2)............ | Omit “seven”, substitute “7”. |
Sub-section 15 (2a).......... | Omit “seven”, substitute “7”. |
Sub-section 15 (3)............ |
|
Sub-section 15 (4)............ |
|
| |
Sub-section 15 (6)............ |
|
| |
Sub-section 17 (1)............ | Omit “fifteen”, substitute “15”. |
Section 18....................... | Omit “two”, substitute “2”. |
Section 19....................... | Omit “twelve”, substitute “12”. |
Section 25....................... |
|
Sub-section 26 (1)............ |
|
Sub-section 26 (2)............ | Omit “seven”, substitute “7”. |
Sub-section 26 (3)............ | Omit “the last preceding section”, substitute “section 25”. |
Sub-section 26 (4)............ | Omit “the last preceding section”, substitute “section 25”. |
Provision | Amendment |
Sub-section 26 (5)....... |
|
| |
(c) Omit “of this Act”. | |
Sub-section 26 (7)....... |
|
Paragraph 28 (1) (a)..... |
|
Paragraph 28 (1) (b)..... |
|
(b) Omit “three”, substitute “3”. | |
Sub-section 33 (2a)..... | Omit “(6) of section 4”, substitute “4 (6)”. |
Sub-section 33aa (3)... |
|
Section 35................... | Omit “1923-1962”, substitute “ |
Paragraph 37 (b).......... | Omit “Five hundred dollars”, substitute “$500”. |
1. No. 75, 1966, as amended. For previous amendments, see No. 111, 1968; No. 102, 1972; No. 172, 1973; No. 216, 1973 (as amended by No. 20, 1974); No. 9, 1977; No. 155, 1979; No. 70, 1980; and No. 96, 1983.
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House of Representatives on 20 March 1985
Senate on 16 April 1985
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