EXPLANATORY STATEMENT
STATUTORY RULES 1988 No 299
SUBJECT: EXTRADITION ACT 1988
EXTRADITION (BRAZIL) REGULATIONS
Section 55 of the Extradition Act 1988 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing 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. Subparagraph 11(1)(b) provides that the Regulations may make provision to the effect that the Act applies in relation to a specified extradition country subject to other limitations, conditions, exceptions or qualifications.
Section 4 of the Acts Interpretation Act 1901 provides that where an Act confers power to make an instrument of a legislative character then, unless the contrary intention appears, the power may be exercised before the Act concerned comes into operation. Executive Council Minute no. 102 recommends that 1 December 1988 be fixed as the day upon which the Act comes into operation. The proposed regulations will take effect, pursuant to subsection 4(2) of the Acts Interpretation Act, on the same day as the Act comes into operation.
The proposed Extradition (Brazil) Regulations (the Regulations) apply the Act to Brazil. Australia does not have a bilateral extradition treaty with Brazil but has agreed to grant extradition on the basis of reciprocity. The regulations continue the application of Australia’s extradition laws to the Brazil which, until the Act comes into operation, is governed by regulations made under the Extradition (Foreign States) Act 1966.
Details of the proposed regulations are as follows:
Clauses 1 and 2: are citation and interpretation provisions.
Clause 3: declares Brazil to be an extradition country.
Clause 4: applies the Act to Brazil subject to the limitations, conditions, exceptions or qualifications specified in regulation 5.
Clause 5: Subclause (1) provides that a person is not liable to be surrendered to Brazil if, had the acts or omissions constituting the offence been committed in Australia, the prosecution would be barred by lapse of time or where the act or omission constituting the offence was committed within the jurisdiction of Australia.
Subclause (2) provides that the Attorney-General is precluded from issuing a surrender warrant if the person sought could be tried by an extraordinary or ad hoc tribunal or court in the requesting country.
Subclause (3) provides that the conditions in subclauses (1) and (2) apply in addition to any conditions imposed on the issue of warrants of surrender under the Act.
Subclause (4) gives the Attorney-General a discretion to decline to surrender a person to Brazil if the person is an Australian citizen or if the Attorney-General considers that humanitarian considerations should preclude surrender.
Subclauses (5) and (6) provide that a request from Brazil for extradition shall be accompanied by documents sufficient to allow the sufficient evidence test, as defined in section 11(5) of the Act, to be satisfied.