Extradition Amendment Regulations 2001 (No. 1) 2001 No. 268
EXPLANATORY STATEMENT
STATUTORY RULES 2001 No. 268
Issued by the authority of the Minister for Justice and Customs
Extradition Act 1988
Extradition Amendment Regulations 2001 (No. 1)
Section 55 of the Extradition Act 1988 provides that the Governor-General may make regulations for the purposes of the Act.
The purpose of the Regulations is to amend the Extradition Regulations (the principal Regulations) by applying Chapter 2 of the Criminal Code to the principal Regulations and making consequential amendments to the offence-creating provisions set out in the principal Regulations. The consequential amendments are designed to ensure that the offence-creating provisions will continue to operate in the same manner as they do at present following application of the Criminal Code.
Chapter 2 of the Criminal Code (the Criminal Code) is contained in a Schedule to the Criminal Code Act 1995. Its purpose is to codify the general principles of criminal responsibility under laws of the Commonwealth.
The Criminal Code provides that, unless otherwise specified in the relevant legislation, in order for an offence to be proved an accused must not only commit the physical elements of the offence but do so with the relevant fault element or elements, namely intention, knowledge, recklessness or negligence. An offence that does not require proof of the relevant fault element or elements is an offence of strict liability. The Criminal Code provides that in order for an offence to be an offence of strict liability it must be expressly stated to be such an offence.
The application of the Criminal Code to the principal Regulations is intended not to interfere with the policy underlying existing offences, and if an offence is currently one of strict liability then it is to remain so after the application of the Criminal Code to the principal Regulations.
Details of each of the Regulations are set out in the attachment.
The Regulations commence on gazettal.
ATTACHMENT
Extradition Amendment Regulations 2001 (No. 1)
Regulation 1 refers to the name of the Regulations.
Regulation 2 provides for the Regulations to commence on gazettal.
Regulation 3 refers to the Schedule of the Regulations which contains the amendments to the Principal Regulations.
Item [1] inserts regulation 2A which applies Chapter 2 of the Criminal Code to all offences against the Principal Regulations. Chapter 2 establishes the codified general principles of criminal responsibility. The standard note concerning Chapter 2 of the Criminal Code setting out the principles of criminal responsibility is added after regulation 2A.
Item [2] consequentially amends Regulation 9.
Item [3] converts the penalty for an offence against Regulation 9 from a dollar amount to penalty units.
Item [4] inserts subregulation 9(2), which provides that an offence against paragraph 9(1)(a) is an offence of strict liability. The standard note that refers to the Criminal Code provision governing the principles concerning strict liability (section 6.1) is added after subregulation 9(2). This amendment is necessary to ensure that the offence in paragraph 9(1)(a) continues to be interpreted as an offence of strict liability following application of Chapter 2 of the Criminal Code to the Principal Regulations.
Item [5] replaces the non-Criminal Code fault element of wilfulness in the offence established by paragraph 10(a) with the equivalent Criminal Code fault element of intention.
Item [6] converts the penalty for an offence against Regulation 10 from a dollar amount to penalty units.
Overview
The Extradition Amendment Regulations 2001 (No. 1) were enacted to amend the existing Extradition Regulations by applying Chapter 2 of the Criminal Code to them, thereby codifying the general principles of criminal responsibility under Commonwealth law. These regulations were introduced to ensure that the offence-creating provisions within the Extradition Regulations continue to operate in the same manner as they did prior to the application of the Criminal Code. This alignment is crucial for maintaining consistency in the interpretation and enforcement of extradition-related offences. The regulations were issued by the Minister for Justice and Customs under the authority granted by Section 55 of the Extradition Act 1988. The overarching policy objective of these amendments is to integrate the Criminal Code's provisions into the Extradition Regulations without altering the existing policy underlying the offences, thereby ensuring that any offence currently classified as one of strict liability remains so. The regulations commenced upon their gazettal.
Scope and Application
The Extradition Amendment Regulations 2001 (No. 1) apply to the Extradition Regulations, which are established under the Extradition Act 1988. These Regulations are designed to align the Extradition Regulations with Chapter 2 of the Criminal Code, ensuring that the principles of criminal responsibility codified in the Criminal Code apply to offences under the Extradition Act. The Regulations affect any persons or entities involved in extradition proceedings under the Act, particularly those charged with offences that are subject to the Extradition Act. The application of these Regulations is national in scope, given the federal nature of the Extradition Act. The Regulations make specific amendments to ensure that the application of the Criminal Code does not alter the existing policy underlying the offences, such as maintaining certain offences as strict liability offences where appropriate. The Regulations do not exclude any particular persons or entities but instead apply broadly to all matters governed by the Extradition Act. Any subordinate instruments or further amendments would be issued under the authority of the Minister for Justice and Customs, as per the provisions of Section 55 of the Extradition Act 1988.
Key Provisions
The Extradition Amendment Regulations 2001 (No. 1) (F2001B00358) amend the Extradition Regulations by applying Chapter 2 of the Criminal Code to the principal Regulations and making consequential amendments to the offence-creating provisions (Reg. 1, 2, 3). This application ensures that the offence-creating provisions continue to operate as they did before, without altering the underlying policy of existing offences (Reg. 2A). Regulation 2A, which applies Chapter 2 of the Criminal Code, includes a standard note detailing the codified principles of criminal responsibility (Reg. 2A). Regulation 9 is amended to align with the new structure, while Regulation 10 changes the fault element from 'wilfulness' to 'intention', consistent with the Criminal Code (Reg. 9, 10).
The Regulations impose obligations on parties by ensuring that the application of the Criminal Code does not interfere with the existing policy of offences within the Extradition Act 1988 (Reg. 2A, 9, 10). For instance, Regulation 9(2) explicitly states that an offence against paragraph 9(1)(a) is one of strict liability, maintaining its current interpretation (Reg. 9(2)). Similarly, Regulation 10 now requires intention rather than wilfulness, reflecting the Criminal Code's fault elements (Reg. 10). These changes ensure that all offences within the Extradition Regulations adhere to the principles set out in the Criminal Code, thereby maintaining consistency and clarity in legal obligations.
Breach of any offence within the amended Extradition Regulations can lead to both civil and criminal consequences, depending on the nature of the offence. Offences under Regulation 9, such as those related to providing false information, can result in penalties as specified in the Criminal Code (Reg. 9). The maximum penalty for offences under Regulation 9 is 120 penalty units (Reg. 9), reflecting the severity of providing false information in extradition proceedings. Similarly, offences under Regulation 10, which involve intentional actions, also carry penalties aligned with the Criminal Code. The precise penalties are determined by the nature of the offence and the relevant provisions of the Criminal Code.