EXPLANATORY STATEMENT
Select Legislative Instrument 2008 No. 164
Issued by the authority of the Minister for Home Affairs
Extradition Act 1988
Extradition (Commonwealth Countries) Amendment Regulations 2008 (No. 1)
Section 55 of 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. Section 5 of the Act defines an ‘extradition country’ to include a country that is declared by regulations to be an extradition country.
The Extradition (Commonwealth Countries) Regulations 1998 (the Principal Regulations) declares each of the countries, colonies, territories and protectorates specified in the Schedule to the Principal Regulations to be an extradition country for the purpose of the Act.
The Extradition (Malaysia) Regulations 2006 (the Malaysia Regulations) give effect in Australian domestic law to the Treaty on Extradition between the Government of Australia and the Government of Malaysia and the Exchange of Notes between Australia and Malaysia on the Treaty on Extradition. The Malaysia Regulations, which commenced on 28 December 2006, declare Malaysia to be an extradition country for the purposes of the Act.
Due to an oversight, Malaysia was not removed from the Schedule to the Principal Regulations when the Malaysia Regulations came into effect. Malaysia was therefore declared to be an extradition country in both the Principal Regulations and the Malaysia Regulations.
The Regulations remove Malaysia from the extradition countries listed in the Schedule to the Principal Regulations and make other minor amendments to the Principal Regulations. Australia’s extradition relationship with Malaysia will continue to be governed by the Malaysia Regulations.
The Regulations also replace the reference to ‘Western Samoa’ in the Schedule to the Principal Regulations with ‘Samoa’. This reflects a change in the country’s Constitution in July 1997 to change the country’s name from Western Samoa to Samoa. The Regulations also make minor technical amendments to change references to ‘the Schedule’ in the Principal Regulations to refer to ‘Schedule 1’. These amendments reflect a change in drafting practice and have no substantive effect.
Consultation was not necessary for this legislative instrument as it is minor in nature and does not substantially alter existing arrangements.
The Regulations commenced on the day after they were registered.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Overview
The Extradition (Commonwealth Countries) Amendment Regulations 2008 (No. 1) were introduced to correct an oversight in the Extradition (Commonwealth Countries) Regulations 1998, which had not removed Malaysia from its list of extradition countries when the Extradition (Malaysia) Regulations 2006 came into effect, thereby erroneously listing Malaysia as an extradition country twice. These amendments were made under the authority of the Extradition Act 1988, which was enacted by the Parliament of Australia to facilitate the extradition of fugitive criminals between Australia and other countries. The primary objective of these regulations is to ensure the consistency and accuracy of Australia's extradition arrangements by rectifying the redundancy in the listing of Malaysia. The regulations also update the reference from 'Western Samoa' to 'Samoa' to reflect the country's constitutional name change and make minor technical amendments to align with current drafting practices. These amendments do not substantially alter the existing extradition arrangements between Australia and the affected countries.
Scope and Application
The Extradition (Commonwealth Countries) Amendment Regulations 2008 (No. 1) amends the Extradition (Commonwealth Countries) Regulations 1998 to correct an oversight regarding the status of Malaysia as an extradition country under the Extradition Act 1988. The Act applies to individuals and entities involved in extradition proceedings between Australia and specified countries, colonies, territories, and protectorates that are declared as extradition countries. The geographic reach of the Act is national, as it pertains to the Australian Commonwealth. The Regulations remove Malaysia from the extradition countries listed in the Principal Regulations to rectify its redundant declaration in both the Principal Regulations and the Extradition (Malaysia) Regulations 2006, ensuring a streamlined and accurate list of extradition countries. Additionally, the Regulations update the reference from ‘Western Samoa’ to ‘Samoa’ to reflect the country’s constitutional change in 1997 and make minor technical amendments to align with current drafting practices. These Regulations do not introduce any new exclusions or thresholds but aim to maintain the precision and clarity of the extradition framework under the Extradition Act 1988.
Key Provisions
The Extradition (Commonwealth Countries) Amendment Regulations 2008 (No. 1) primarily address the oversight that led to Malaysia being declared as an extradition country under both the Extradition (Commonwealth Countries) Regulations 1998 and the Extradition (Malaysia) Regulations 2006. According to section 55 of the Extradition Act 1988, these regulations are made to ensure that the Act is implemented effectively, and to correct errors in existing regulations. Section 5 of the Act defines 'extradition country' as one declared by regulations, and the Principal Regulations originally listed Malaysia among other countries. However, the Malaysia Regulations declared Malaysia to be an extradition country again, necessitating these amendments.
The Regulations impose specific obligations on the Australian government to ensure that the extradition process is conducted correctly and efficiently. They require that Malaysia be removed from the Schedule of the Principal Regulations, ensuring that the extradition framework is consistent and does not double-declare any country as an extradition nation. Furthermore, the Regulations update references from 'Western Samoa' to 'Samoa', reflecting the country's constitutional name change in 1997, and make minor technical amendments to align with current drafting practices. These changes aim to streamline the extradition process and ensure that the legal instruments are up-to-date and accurate.
There are no specific offences, penalties, or consequences outlined in these Regulations. Given that the amendments are minor and corrective in nature, they do not introduce new obligations or penalties. Instead, their purpose is to rectify previous errors and ensure the continued smooth operation of Australia's extradition arrangements with Commonwealth countries. The Regulations are designed to maintain the integrity of the extradition process without imposing additional burdens or legal consequences on the parties involved.
The legislative instrument came into effect on the day following its registration, as per the Legislative Instruments Act 2003. The Regulations are intended to be straightforward and non-disruptive, focusing solely on correcting errors and updating outdated references. Given their nature, no consultation was deemed necessary, as they do not significantly alter existing legal frameworks or impose new requirements on the parties involved. The minor amendments aim to enhance the clarity and effectiveness of the extradition process within the Commonwealth framework.