Extradition (Commonwealth Countries) Amendment Regulations 2000 (No. 1) 2000 No. 178
EXPLANATORY STATEMENT
STATUTORY RULES 2000 No. 178
Issued by the Authority of the Minister for Justice and Customs
Extradition Act 1988
Extradition (Commonwealth Countries) Amendment Regulations 2000 (No. 1)
Section 55 of the Extradition Act 1988 (the Act) provides that the Governor-General may make regulations 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 Extradition (Commonwealth Countries) Regulations (the Regulations) contained, prior to the coming into force of the amending Regulations, a number of anomalies. The amending Regulations have rectified those anomalies.
Subsection 19(2) of the Act provides that a person is only eligible for extradition from Australia if, amongst other things, the country requesting extradition has produced certain documents to the magistrate conducting the extradition hearing. Some of those documents are set out in the Act and others are set out in the Regulations. Those set out in the Act differ according to whether the person sought is an accused person or a convicted person - in other words, a person wanted for prosecution or a person who has already been convicted and is wanted for sentencing. The Regulations did not, prior to the amending Regulations coming into force, differentiate in this way. The same documents were required irrespective of whether the person sought was an accused or convicted person.
The amending Regulations differentiate in the same way as the Act so that certain documents are now not required to be produced to a magistrate where the person sought is a convicted person. Those particular documents are the ones described in subregulations 6(1) and 6(4). Subregulation 6(1) requires the production of documents which allow the 'sufficient evidence' test to be satisfied (in other words, evidence establishing a prima facie case against the person sought). Subregulation 6(4) (which applies in relation to different countries from those to which subregulation 6(1) applies) requires the production of documents describing the available evidence against the person sought.
The amending Regulations have, therefore, amended subregulation 6(1) (proposed regulation 3) and subregulation 6(4) (proposed regulation 4) so that the requirement to produce the documents described in each subregulation is only applicable where the person sought is an accused person.
As stated above, subregulation 6(1) requires the production of documents which allow the 'sufficient evidence test' to be satisfied. Prior to the amending regulations coming into force, subregulation 6(2) provided that the reference to the 'sufficient evidence test' was to be read as a reference to the test referred to in paragraph 11 (5)(a) of the Act. However, subsection 11 (4) of the Act provides that the expression 'sufficient evidence test' is to be read as the 'prima facie evidence test' which is defined in paragraph 11(5)(b) of the Act. To clarify and simplify matters, the proposed Regulations have amended subregulations 6(1) and 6(2) by replacing the expression 'sufficient evidence test' with the term 'prima facie evidence test'. The reference in subregulation 6(2) to paragraph 11(5)(a) of the Act has accordingly been changed to paragraph 11(5)(b) (proposed regulation 3).
Subregulation 6(1) applies to the countries listed in Part 1 of the Schedule to the Regulations. Subregulation 6(4) applies to the countries listed in Part 2 of the Schedule. Subregulation 6(4) requires a country requesting a person's extradition to provide a description of the person and details of his or her identity, nationality and whereabouts. Prior to the coming into force of the amending Regulations, there was no such requirement in subregulation 6(1). The proposed regulations have therefore amended subregulation 6(1) to insert such a requirement (proposed regulation 3).
The Regulations commenced on gazettal.
Overview
The Extradition (Commonwealth Countries) Amendment Regulations 2000 (No. 1) were introduced to address anomalies in the Extradition (Commonwealth Countries) Regulations, which were inconsistent with the requirements outlined in the Extradition Act 1988. These inconsistencies particularly involved the types of documents that needed to be presented to a magistrate during extradition hearings, which varied depending on whether the individual sought for extradition was an accused person or a convicted person. The problem was that the existing regulations did not differentiate between these two scenarios, leading to unnecessary document requirements in certain cases. Issued by the Authority of the Minister for Justice and Customs, the policy objective of these amending regulations was to rectify these inconsistencies and ensure that the regulations align with the stipulations of the Act, thereby facilitating a more efficient and accurate extradition process. The regulations came into effect upon gazettal, ensuring immediate implementation of the necessary amendments.
Scope and Application
The Extradition (Commonwealth Countries) Amendment Regulations 2000 (No. 1) are subordinate legislation made under the Extradition Act 1988. They apply to persons and entities involved in extradition proceedings between Australia and Commonwealth countries, including those wanted for prosecution (accused persons) and those already convicted who are wanted for sentencing. The Regulations aim to correct anomalies in the original Extradition (Commonwealth Countries) Regulations by aligning the documentary requirements for extradition requests between accused and convicted persons, and clarifying certain terminology. Specifically, they now require different documents for accused and convicted persons, with certain evidence descriptions only required for accused persons. Additionally, they correct a reference error by replacing "sufficient evidence test" with "prima facie evidence test" to align with the Act. The Regulations have a national jurisdictional reach as they govern extradition proceedings across multiple Commonwealth countries listed in the Schedules. There are no stated exclusions or exemptions in the text, and the application of the Regulations extends through their commencement upon gazettal.
Key Provisions
The Extradition (Commonwealth Countries) Amendment Regulations 2000 (No. 1) primarily aim to rectify anomalies within the Extradition (Commonwealth Countries) Regulations, which had not previously differentiated the requirements for documents necessary for extradition requests based on whether the person sought was an accused person or a convicted person. The main operative sections of these amending regulations are sections 3 and 4, which amend subregulations 6(1) and 6(4) respectively. Section 3 alters subregulation 6(1) to specify that documents allowing the 'prima facie evidence test' to be satisfied are required only if the person sought is an accused person. Section 4 does the same for subregulation 6(4), which now requires a description of the person and details of their identity, nationality, and whereabouts only if the person is an accused person. Additionally, these sections make technical amendments to subregulation 6(2) to align it with the correct definition of 'prima facie evidence test' as defined in the Extradition Act 1988.
The obligations and requirements imposed by the amending regulations on parties or entities are primarily concerned with the submission of specific documents when requesting extradition. Countries seeking the extradition of an accused person must now provide documents that satisfy the 'prima facie evidence test' and include details of the person's identity, nationality, and whereabouts. Conversely, these requirements do not apply to requests for the extradition of convicted persons. This differentiation aims to ensure that the evidence provided is adequate for an accused person, while acknowledging that convicted persons may already have sufficient evidence against them.
The Extradition Act 1988 does not explicitly state offences, penalties, or consequences for non-compliance with the regulations. However, failure to comply with the requirements for submitting the necessary documents could potentially lead to the refusal of an extradition request by the magistrate. Such a refusal could have significant legal and diplomatic consequences for the requesting country, as it would undermine the validity of their extradition request. The Act does not specify maximum penalties for non-compliance with the regulations; instead, the consequences would likely be determined on a case-by-case basis, depending on the specific circumstances and the discretion of the magistrate.