Extradition (Commonwealth Countries) Regulations 1998

Administered by Attorney-General's Department

Legislation au F1996B01271 Regulations Not in force Legislative Instrument

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Extradition (Commonwealth Countries) Regulations 1998

Statutory Rules 1988 No. 281 as amended

made under the

Extradition Act 1988

This compilation was prepared on 9 August 2008
taking into account amendments up to SLI 2008 No. 164

Prepared by the Office of Legislative Drafting and Publishing,
Attorney‑General’s Department, Canberra

Contents

 1 Name of Regulations [see Note 1]

 2 Interpretation 

 3 Declaration as to extradition countries 

 4 Declaration in relation to definition of political offence

 5 Modification of Act in relation to definition of extradition offence

 6 Modification of s 19, Act — production of documents 

 7 Modification of Act in relation to surrender determination 

Schedule 1 Extradition countries 

Part 1  

Part 2  

Notes   

 

 

 

1 Name of Regulations [see Note 1]

  These Regulations are the Extradition (Commonwealth Countries) Regulations 1998.

2 Interpretation

  In these regulations, unless the contrary intention appears:

Commonwealth country means a country, colony, territory or protectorate declared to be an extradition country under regulation 3.

the Act means the Extradition Act 1988.

3 Declaration as to extradition countries

  Each of the countries, colonies, territories and protectorates specified in Schedule 1 is declared to be an extradition country.

4 Declaration in relation to definition of political offence

  In relation to a Commonwealth country, an offence constituted by taking or endangering, attempting to take or endanger or participating in the taking or endangering of, the life of a person, being an offence committed in circumstances in which such conduct creates a collective danger, whether direct or indirect, to the lives of other persons, is declared for the purposes of paragraph (d) of the definition of political offence in section 5 of the Act not to be a political offence in relation to that Commonwealth country.

5 Modification of Act in relation to definition of extradition offence

  The Act applies in relation to each Commonwealth country subject to the limitation, condition, exception or qualification that a reference to 12 months in paragraph (a) or (b) of the definition of extradition offence in section 5 of the Act shall be read as a reference to 2 years.

6 Modification of s 19, Act — production of documents

 (1) The Act applies in relation to each Commonwealth country specified in Part 1 of Schedule 1 subject to the limitation, condition, exception or qualification that, in addition to the supporting documents within the meaning of paragraph 19 (2) (a) of the Act, the following documents are required to be produced to a magistrate for the purposes of subsection 19 (1) of the Act:

 (a) a statement of the identity, nationality and description of the person and, to the extent that is possible, of the whereabouts of the person;

 (b) if the offence is an extradition offence of which the person is accused — documents that allow the prima facie evidence test to be satisfied.

 (2) For subregulation (1), a reference to the prima facie evidence test being satisfied is a reference to that test being satisfied as referred to in paragraph 11 (5) (b) of the Act.

 (3) The Act applies in relation to each Commonwealth country specified in Part 2 of Schedule 1 subject to the limitations, conditions, exceptions or qualifications set out in subregulation (4).

 (4) For the purposes of subregulation (3), in addition to the supporting documents referred to in paragraph 19 (2) (a) of the Act, the following documents are required to be produced to a magistrate for the purposes of subsection 19 (1) of the Act:

 (a) a statement of the identity, nationality and description of the person and, to the extent that is possible, of the whereabouts of the person;

 (b) if the offence is an extradition offence of which the person is accused:

 (i) a recital of the evidence acquired to support the application for the surrender of the person to the Commonwealth country in relation to the offence;

 (ii) an affidavit of an officer of an investigating authority of the Commonwealth country stating that:

 (A) the recital of evidence mentioned in subparagraph (b) (i) was prepared by or under the direction of that officer; and

 (B) the evidence mentioned in the recital in relation to the offence is available to be produced at the trial of that person;

 (iii) a certificate of the Attorney‑General of the Commonwealth country that, in the Attorney‑General’s opinion, the recital mentioned in subparagraph (b) (i) discloses the existence of evidence under the law of that country that justifies prosecution of the person for the offence.

7 Modification of Act in relation to surrender determination

 (1) The Act applies in relation to each Commonwealth country subject to the limitation, condition, exception or qualification that, for the purposes of subsection 22 (2) of the Act, in addition to the conditions set out in subsection 22 (3) for the surrender of an eligible person in relation to a qualifying extradition offence, such a person shall not be surrendered in relation to such an offence if the Attorney‑General is satisfied that by reason of:

 (a) the trivial nature of the offence;

 (b) the accusation against the eligible person not having been made in good faith or in the interests of justice; or

 (c) any other sufficient cause;

  it would, having regard to all the circumstances, be unjust or oppressive or too severe a punishment to surrender the eligible person or to surrender the eligible person before the expiry of a period specified by the Attorney‑General.

 (2) In subregulation (1), eligible person and a qualifying extradition offence have the same meanings respectively as in section 22 of the Act.

 

Schedule 1 Extradition countries

(regulation 3)

Part 1  

Anguilla

Antigua and Barbuda

Bahamas

Bangladesh

Barbados

Belize

Bermuda

Botswana

British Antarctic Territory

British Indian Ocean Territory

British Virgin Islands

Brunei Darussalam

Cayman Islands

Cook Islands

Cyprus

Dominica

Falkland Islands

Gambia

Ghana

Gibraltar

Grenada

Guyana

India

Jamaica

Kenya

Kiribati

Lesotho

Malawi

Maldives

Malta

Mauritius

Montserrat

Namibia

Nauru

Nigeria

Pakistan

Papua New Guinea

Pitcairn, Henderson, Ducie and Oeno Islands

St Helena

St Helena Dependencies

St Kitts and Nevis

St Lucia

St Vincent and the Grenadines

Seychelles

Sierra Leone

Singapore

Solomon Islands

South Georgia and South Sandwich Islands

Sri Lanka

Swaziland

Tanzania

The Sovereign Base areas of Akrotiri and Dhekelia in the Island of Cyprus

Trinidad and Tobago

Turks and Caicos Islands

Tuvalu

Uganda

Vanuatu

Zambia

Zimbabwe

Part 2  

Tonga

Samoa

Notes to the Extradition (Commonwealth Countries) Regulations 1998

Note 1

The Extradition (Commonwealth Countries) Regulations 1998 (in force under the  Extradition Act 1988) as shown in this compilation comprise Statutory Rules 1988 No. 281 amended as indicated in the Tables below.

Under the Legislative Instruments Act 2003, which came into force on 1 January 2005, it is a requirement for all non‑exempt legislative instruments to be registered on the Federal Register of Legislative Instruments. From 1 January 2005 the Statutory Rules series ceased to exist and was replaced with Select Legislative Instruments (SLI series). Numbering conventions remain the same, ie Year and Number.

For all relevant information pertaining to application, saving or transitional provisions see Table A.

Table of Instruments

Year and
number

Date of
notification in
Gazette or FRLI registration

Date of
commencement

Application, saving or
transitional provisions

1988 No. 281

30 Nov 1988

1 Dec 1988 (see Gazette 1988, No. S366)

 

1992 No. 128

27 May 1992

27 May 1992

—

1996 No. 227

30 Oct 1996

30 Oct 1996

—

1997 No. 122

4 June 1997

29 June 1997

—

2000 No. 178

12 July 2000

12 July 2000

—

2004 No. 166

1 July 2004

1 July 2004

R. 4

2004 No. 168

1 July 2004

1 July 2004

R. 4

2008 No. 164

8 Aug 2008 (see F2008L03002)

9 Aug 2008

—

Table of Amendments

ad. = added or inserted      am. = amended      rep. = repealed      rs. = repealed and substituted

Provision affected

How affected

R. 1.................

rs. 2000 No. 178

R. 2.................

am. 1996 No. 227

R. 3.................

am. 2008 No. 164

Heading to r. 6..........

rs. 2000 No. 178

R. 6.................

am. 1996 No. 227; 2000 No. 178; 2008 No. 164

Schedule 1

 

Heading to Schedule.....

rs. 1996 No. 227

 

rep. 2008 No. 164

Heading to Schedule 1....

ad. 2008 No. 164

Schedule.............

am. 1992 No. 128; 1996 No. 227; 1997 No. 122; 2004 Nos. 166 and 168

Schedule 1............

am. 2008 No. 164

Table A Application, saving or transitional provisions

Statutory Rules 2004 No. 166

4 Transitional

  Despite the amendment made by these Regulations, the Extradition (Commonwealth Countries) Regulations 1998, as in force immediately before the commencement of these Regulations, continue to apply to a request for extradition made by Canada before the commencement of these Regulations.

 

Statutory Rules 2004 No. 168

4 Transitional

  Despite the amendment made by Schedule 1 of these Regulations to the Extradition (Commonwealth Countries) Regulations 1998, the Extradition (Commonwealth Countries) Regulations 1998, as in force immediately before the commencement of these Regulations, continue to apply to a request for extradition made by the United Kingdom before the commencement of these Regulations.

 

 

 

Overview

The Extradition (Commonwealth Countries) Regulations 1998 were enacted under the Extradition Act 1988 with the aim of establishing a framework for the extradition of individuals between Australia and other Commonwealth countries. These regulations were designed to address the need for a formalised process for the extradition of individuals accused or convicted of crimes, ensuring that such processes comply with the legal standards and requirements of both Australia and the requesting Commonwealth countries. The policy objective of these regulations is to facilitate the efficient and lawful extradition process while protecting the rights of individuals involved. The enacting body responsible for these regulations is the Parliament of Australia, which authorised their creation to support the broader aims of the Extradition Act 1988.

Scope and Application

The Extradition (Commonwealth Countries) Regulations 1998, established under the Extradition Act 1988, outline the framework for extradition between Australia and specified Commonwealth countries. These regulations apply to individuals, entities, and transactions involving extradition processes between Australia and the countries listed in Schedule 1, which includes a variety of Commonwealth territories and protectorates. The scope of these regulations extends across the Commonwealth, thereby affecting any Australian citizen or resident involved in extradition proceedings with these specified jurisdictions. The regulations modify certain provisions of the Extradition Act 1988, including the definition of extradition offences, the documentation required for extradition requests, and the conditions under which a person may be surrendered. Additionally, the regulations provide specific exclusions and qualifications, such as the increased period for defining an extradition offence from 12 months to 2 years and the conditions under which a person may not be surrendered. These modifications are detailed in the regulations and are subject to further alterations through subordinate instruments.

Key Provisions

The Extradition (Commonwealth Countries) Regulations 1998 (Regulations) specify the countries, colonies, territories and protectorates that are recognised as extradition countries under the Extradition Act 1988 (Act) (reg 3). These countries are listed in Schedule 1, which is divided into Part 1 and Part 2, with each listing countries and territories that have specific extradition arrangements under the Act. Regulation 4 declares that certain offences involving the endangerment of lives in a collective manner are not to be considered political offences in relation to these countries. Regulation 5 modifies the Act by extending the time period from 12 months to 2 years for offences to be considered extradition offences. Regulations 6 and 7 further modify the Act, stipulating additional documentation requirements for extradition proceedings and setting conditions under which a person may not be surrendered, such as the trivial nature of the offence or if it would be unjust or oppressive to do so. The Regulations impose several obligations on parties involved in extradition proceedings. For example, regulation 6 requires the production of specific documents to a magistrate, including identity details of the person and evidence related to the offence if it is an extradition offence (reg 6(1)). For countries listed in Part 2 of Schedule 1, additional documents such as a recital of evidence and an affidavit from an officer of the investigating authority are required (reg 6(4)). The Attorney-General must also be satisfied that certain conditions, such as the nature of the offence or the manner in which the accusation was made, do not render the surrender of a person unjust or oppressive (reg 7(1)). Failure to comply with the provisions of the Regulations can lead to various legal consequences. While the Regulations themselves do not explicitly outline specific offences or penalties for non-compliance, breaches of the Act, which the Regulations modify, can result in both civil and criminal penalties. For instance, providing false information in an extradition request can be considered an offence under the Act, potentially leading to fines or imprisonment. Additionally, any actions that undermine the integrity of the extradition process, such as tampering with evidence or obstructing proceedings, could result in further legal ramifications under both the Act and other applicable laws.

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