Extradition (Commonwealth Countries) Regulations 1998 (Cth)

Extradition (Commonwealth Countries) Regulations 1998

Statutory Rules 1988 No. 281 as amended

made under the

Extradition Act 1988

This compilation was prepared on 9 August 2008

taking into account amendments up to SLI 2008 No. 164

Prepared by the Office of Legislative Drafting and Publishing,

Attorney‑General’s Department, Canberra

Contents

    1Name of Regulations [see Note 1]

 These Regulations are the Extradition (Commonwealth Countries) Regulations 1998.

2Interpretation

 In these regulations, unless the contrary intention appears:

Commonwealth country means a country, colony, territory or protectorate declared to be an extradition country under regulation 3.

the Act means the Extradition Act 1988.

3Declaration as to extradition countries

 Each of the countries, colonies, territories and protectorates specified in Schedule 1 is declared to be an extradition country.

4Declaration in relation to definition of political offence

 In relation to a Commonwealth country, an offence constituted by taking or endangering, attempting to take or endanger or participating in the taking or endangering of, the life of a person, being an offence committed in circumstances in which such conduct creates a collective danger, whether direct or indirect, to the lives of other persons, is declared for the purposes of paragraph (d) of the definition of political offence in section 5 of the Act not to be a political offence in relation to that Commonwealth country.

5Modification of Act in relation to definition of extradition offence

 The Act applies in relation to each Commonwealth country subject to the limitation, condition, exception or qualification that a reference to 12 months in paragraph (a) or (b) of the definition of extradition offence in section 5 of the Act shall be read as a reference to 2 years.

6Modification of s 19, Act – production of documents

• (1)

  The Act applies in relation to each Commonwealth country specified in Part 1 of Schedule 1 subject to the limitation, condition, exception or qualification that, in addition to the supporting documents within the meaning of paragraph 19 (2) (a) of the Act, the following documents are required to be produced to a magistrate for the purposes of subsection 19 (1) of the Act:

  • (a)

    a statement of the identity, nationality and description of the person and, to the extent that is possible, of the whereabouts of the person;

  • (b)

    if the offence is an extradition offence of which the person is accused — documents that allow the prima facie evidence test to be satisfied.

• (2)

  For subregulation (1), a reference to the prima facie evidence test being satisfied is a reference to that test being satisfied as referred to in paragraph 11 (5) (b) of the Act.

(3)The Act applies in relation to each Commonwealth country specified in Part 2 of Schedule 1 subject to the limitations, conditions, exceptions or qualifications set out in subregulation (4).

(4)For the purposes of subregulation (3), in addition to the supporting documents referred to in paragraph 19 (2) (a) of the Act, the following documents are required to be produced to a magistrate for the purposes of subsection 19 (1) of the Act:

• (a)

  a statement of the identity, nationality and description of the person and, to the extent that is possible, of the whereabouts of the person;

• (b)

  if the offence is an extradition offence of which the person is accused:

  • (i)

    a recital of the evidence acquired to support the application for the surrender of the person to the Commonwealth country in relation to the offence;

  • (ii)

    an affidavit of an officer of an investigating authority of the Commonwealth country stating that:

    • (A)

      the recital of evidence mentioned in subparagraph (b) (i) was prepared by or under the direction of that officer; and

    • (B)

      the evidence mentioned in the recital in relation to the offence is available to be produced at the trial of that person;

  • (iii)

    a certificate of the Attorney‑General of the Commonwealth country that, in the Attorney‑General’s opinion, the recital mentioned in subparagraph (b) (i) discloses the existence of evidence under the law of that country that justifies prosecution of the person for the offence.

7Modification of Act in relation to surrender determination

(1)The Act applies in relation to each Commonwealth country subject to the limitation, condition, exception or qualification that, for the purposes of subsection 22 (2) of the Act, in addition to the conditions set out in subsection 22 (3) for the surrender of an eligible person in relation to a qualifying extradition offence, such a person shall not be surrendered in relation to such an offence if the Attorney‑General is satisfied that by reason of:

• (a)

  the trivial nature of the offence;

• (b)

  the accusation against the eligible person not having been made in good faith or in the interests of justice; or

• (c)

  any other sufficient cause;

 it would, having regard to all the circumstances, be unjust or oppressive or too severe a punishment to surrender the eligible person or to surrender the eligible person before the expiry of a period specified by the Attorney‑General.

(2) In subregulation (1), eligible person and a qualifying extradition offence have the same meanings respectively as in section 22 of the Act.

Schedule 1Extradition countries

(regulation 3)

Part 1

Anguilla

Antigua and Barbuda

Bahamas

Bangladesh

Barbados

Belize

Bermuda

Botswana

British Antarctic Territory

British Indian Ocean Territory

British Virgin Islands

Brunei Darussalam

Cayman Islands

Cook Islands

Cyprus

Dominica

Falkland Islands

Gambia

Ghana

Gibraltar

Grenada

Guyana

India

Jamaica

Kenya

Kiribati

Lesotho

Malawi

Maldives

Malta

Mauritius

Montserrat

Namibia

Nauru

Nigeria

Pakistan

Papua New Guinea

Pitcairn, Henderson, Ducie and Oeno Islands

St Helena

St Helena Dependencies

St Kitts and Nevis

St Lucia

St Vincent and the Grenadines

Seychelles

Sierra Leone

Singapore

Solomon Islands

South Georgia and South Sandwich Islands

Sri Lanka

Swaziland

Tanzania

The Sovereign Base areas of Akrotiri and Dhekelia in the Island of Cyprus

Trinidad and Tobago

Turks and Caicos Islands

Tuvalu

Uganda

Vanuatu

Zambia

Zimbabwe

Part 2

Tonga

Samoa

Notes to the Extradition (Commonwealth Countries) Regulations 1998

Note 1

The Extradition (Commonwealth Countries) Regulations 1998 (in force under the Extradition Act 1988) as shown in this compilation comprise Statutory Rules 1988 No. 281 amended as indicated in the Tables below.

Under the Legislative Instruments Act 2003, which came into force on 1 January 2005, it is a requirement for all non‑exempt legislative instruments to be registered on the Federal Register of Legislative Instruments. From 1 January 2005 the Statutory Rules series ceased to exist and was replaced with Select Legislative Instruments (SLI series). Numbering conventions remain the same, ie Year and Number.

For all relevant information pertaining to application, saving or transitional provisions see Table A.

Table of Instruments

Year and number	Date of notification in Gazette or FRLI registration	Date of commencement	Application, saving or transitional provisions
1988 No. 281	30 Nov 1988	1 Dec 1988 (see Gazette 1988, No. S366)
1992 No. 128	27 May 1992	27 May 1992	—
1996 No. 227	30 Oct 1996	30 Oct 1996	—
1997 No. 122	4 June 1997	29 June 1997	—
2000 No. 178	12 July 2000	12 July 2000	—
2004 No. 166	1 July 2004	1 July 2004	R. 4
2004 No. 168	1 July 2004	1 July 2004	R. 4
2008 No. 164	8 Aug 2008 (see F2008L03002)	9 Aug 2008	—

Table of Amendments

ad. = added or inserted  am. = amended rep. = repealed rs. = repealed and substituted
Provision affected	How affected
R. 1.........................................	rs. 2000 No. 178
R. 2.........................................	am. 1996 No. 227
R. 3.........................................	am. 2008 No. 164
Heading to r. 6......................	rs. 2000 No. 178
R. 6.........................................	am. 1996 No. 227; 2000 No. 178; 2008 No. 164
Schedule 1
Heading to Schedule............	rs. 1996 No. 227
rep. 2008 No. 164
Heading to Schedule 1........	ad. 2008 No. 164
Schedule................................	am. 1992 No. 128; 1996 No. 227; 1997 No. 122; 2004 Nos. 166 and 168
Schedule 1.............................	am. 2008 No. 164

Table AApplication, saving or transitional provisions

Statutory Rules 2004 No. 166

4Transitional

 Despite the amendment made by these Regulations, the Extradition (Commonwealth Countries) Regulations 1998, as in force immediately before the commencement of these Regulations, continue to apply to a request for extradition made by Canada before the commencement of these Regulations.

Statutory Rules 2004 No. 168

4Transitional

Despite the amendment made by Schedule 1 of these Regulations to the Extradition (Commonwealth Countries) Regulations 1998, the Extradition (Commonwealth Countries) Regulations 1998, as in force immediately before the commencement of these Regulations,continue to apply to a request for extradition made by the United Kingdom before the commencement of these Regulations.