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.
Overview
The Extradition (Brazil) Regulations 1988 were introduced to address the need for a formalised legal framework governing the extradition process between Australia and Brazil. Enacted under the authority of the Extradition Act 1988, these regulations were developed by the Australian government to ensure that the Act applies appropriately to Brazil, a country with which Australia has not established a formal bilateral extradition treaty but has instead agreed to extradition based on reciprocity. The policy objective was to provide a clear and lawful procedure for the extradition of individuals between the two countries, ensuring that it aligns with Australia’s existing extradition laws and international obligations. The Regulations were designed to bridge the legal gap and facilitate cooperation in criminal matters between Australia and Brazil by detailing specific conditions, exceptions, and limitations for the extradition process.
Scope and Application
The Extradition (Brazil) Regulations 1988 apply the provisions of the Extradition Act 1988 to Brazil, despite the absence of a formal bilateral extradition treaty between Australia and Brazil. These regulations, which come into effect on 1 December 1988, govern the extradition process to and from Brazil under the framework of reciprocity. The regulations specifically declare Brazil as an extradition country and outline various conditions and limitations for the application of the Act in this context. For instance, a person is not liable for extradition if the offence they are alleged to have committed could not be prosecuted in Australia due to the lapse of time or if the offence was committed within Australian jurisdiction. Furthermore, the Attorney-General has the discretion to refuse extradition if the individual is an Australian citizen or if humanitarian considerations apply. The regulations also include provisions that require the Brazilian authorities to provide sufficient evidence to satisfy the legal standards set forth in the Act.
Key Provisions
The main operative sections of the Extradition (Brazil) Regulations, pursuant to the Extradition Act 1988, are clauses 3 to 6, which establish the framework for extradition between Australia and Brazil. Clause 3 declares Brazil as an extradition country, thereby formalising the relationship for extradition purposes (Clause 3). Clause 4 applies the provisions of the Act to Brazil, subject to limitations, conditions, exceptions, or qualifications specified in regulation 5 (Clause 4). Clause 5 outlines specific circumstances under which extradition may not be granted, such as if the offence was committed within Australia's jurisdiction, if the prosecution would be barred by the lapse of time, or if the person sought could be tried by an extraordinary or ad hoc tribunal or court in Brazil (Clause 5). Clause 6 grants the Attorney-General discretion to decline extradition if the person is an Australian citizen or if humanitarian considerations warrant such a decision (Clause 6).
The Extradition (Brazil) Regulations impose several obligations and requirements on the parties involved. Firstly, the Act must be applied to Brazil in accordance with the specified limitations, conditions, exceptions, or qualifications (Clause 4). Secondly, the Attorney-General must ensure that any extradition request from Brazil is accompanied by sufficient evidence as defined by section 11(5) of the Act (Clause 5(5) and (6)). Thirdly, the Attorney-General must consider and apply the specific non-surrender conditions outlined in Clause 5, such as whether the offence was committed within Australia or if the person sought could be tried by an extraordinary tribunal (Clause 5(1) and (2)). Additionally, the Attorney-General has the discretion to decline extradition based on the person being an Australian citizen or if humanitarian considerations apply (Clause 6).
The Extradition (Brazil) Regulations also detail the potential civil and criminal consequences for non-compliance. While specific offences and penalties are not detailed within the regulations themselves, breaches of the Extradition Act 1988 can result in significant consequences. For instance, improperly issuing a surrender warrant or failing to adhere to the conditions set out in the Act could be viewed as an abuse of process. Such actions may lead to judicial review, fines, or imprisonment, depending on the severity of the breach and the discretion of the courts. The Act’s overarching provisions ensure that any misconduct related to extradition processes is addressed appropriately to maintain the integrity of the legal framework.