EXPLANATORY STATEMENT
Select Legislative Instrument 2009 No. 92
Issued by the authority of the Minister for Home Affairs
Extradition Act 1988
Extradition (Aviation) Regulations 2009
Section 55 of the Extradition Act 1988 (the Act) provides, in part, that the Governor‑General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
The Act makes provision for the extradition of persons from Australia to extradition countries and to New Zealand, and facilitates the making of requests for extradition by Australia to other countries. Extradition from Australia can only take place to an extradition country, or to New Zealand, under the special procedures set down in the Act. Section 5 of the Act provides that an ‘extradition country’ is any country (other than New Zealand) that is declared by the regulations to be an extradition country.
Subsection 11(1A) of the Act provides that the regulations may provide that the Act applies in relation to a specified extradition country subject to the limitations, conditions, exceptions or qualifications as are necessary to give effect to a multilateral extradition treaty in relation to the country. Subsection 11(1C) provides that this may be achieved by applying the Act to the country subject to the treaty.
Australia is party to the Convention for the Suppression of Unlawful Seizure of Aircraft 1970 (the Hague Convention), the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation 1971 (the Montreal Convention) and the Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation 1988 (the Protocol). The Extradition (Aviation) Regulations made in 1992 (the Aviation Regulations) declare countries listed in Schedule 1 or Schedule 2 of the Aviation Regulations to be ‘extradition countries’ for the purposes of the Act. The countries listed in the Schedules are those countries that were a party to the Hague Convention or the Montreal Convention respectively at the time the Aviation Regulations were made. The Schedules do not include a number of countries that have become a party to the Hague Convention or the Montreal Convention since the Aviation Regulations were made. Further, the Aviation Regulations do not implement extradition obligations contained in the Protocol, which Australia became a party to in 1990.
The Extradition (Aviation) Regulations 2009 (the Regulations) repeal and replace the Aviation Regulations. The Regulations declare that a country, or a colony, territory or protectorate of a country, for which any of the following is in force is an ‘extradition country’ for the purposes of section 5 of the Act:
- the Hague Convention
- the Montreal Convention, or
- the Protocol.
The Regulations provide that the Act applies subject to the Hague Convention for those countries that are a party to the Hague Convention and subject to the Montreal Convention for those countries that are a party to the Montreal Convention. Similarly, the Regulations provide that the Act applies subject to the Protocol for those countries that are a party to the Protocol.
By providing that any country that is a party to the Hague Convention, the Montreal Convention or the Protocol at any given time will be an ‘extradition country’ for the purposes of the Act, these amendments will ensure Australia is able to meet its international obligations under the Conventions and the Protocol.
The Regulations simplify the administrative arrangements so that the regulations do not have to be amended each time a new country becomes a party to the Convention. The Regulations include a note referring the reader to the International Civil Aviation Organization website which contains a current list of countries for which the Conventions and the Protocol is in force.
The approach of referring in regulations to foreign countries who are party to a Convention without listing those countries has been adopted in other regulations. In particular, subsection 13(3) of the Legislative Instruments Act 2003 allows things to be declared in regulations by referring to a class of things.
Extradition under the Regulations operates in accordance with the Act. The Act applies the modern ‘no evidence’ extradition procedure. Under this procedure, countries are not required to present evidence establishing a prima facie case against the person sought.
Extradition under the Regulations is also subject to the various safeguards set out in the Act. For example, extradition will not be permitted where the fugitive is sought for or in connection with his or her race, religion, nationality or political opinions or is to be tried, sentenced or detained for a political or military offence. Extradition must be refused where the fugitive could be liable to the death penalty, unless an undertaking is given that the death penalty will not be imposed or, if imposed, will not be carried out. Extradition must also be refused where the fugitive could be subjected to torture. In addition, the Attorney-General retains a broad discretion to refuse an extradition request by a country.
Consultation was unnecessary for this legislative instrument as this instrument does not substantially alter existing arrangements and has no direct or indirect effect on business.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulations commenced on the day after they were registered with the Federal Register of Legislative Instruments.