Extradition (Commonwealth Countries) Regulations (Amendment) 1997 No. 122
EXPLANATORY STATEMENT
STATUTORY RULES 1997 No. 122
Issued by the Authority of the Attorney-General and Minister for Justice
Extradition Act 1988
Extradition (Commonwealth Countries) Regulations (Amendment)
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. Paragraph 11(1) (b) of the Act provides that regulations may apply the Act to a specified extradition country subject to such limitations, conditions, exceptions or qualifications as the regulations specify. In section 5 of the Act "extradition country" is defined as including, inter alia, a territory of a country or a territory for the international relations of which a country is responsible if that territory is declared by the regulations to be an extradition country.
The Regulations amend the list of extradition countries in Part 1 of the Schedule to the Extradition (Commonwealth Countries) Regulations ("the Commonwealth Countries Regulations") by omitting Hong Kong.
Extradition between Australia and most Commonwealth countries and their dependencies is conducted under the Commonwealth Scheme for the Rendition of Fugitive Offenders ("the London Scheme"), an arrangement of less than treaty status. The London Scheme is given effect in Australia by the Commonwealth Countries Regulations, which provide that the Extradition Act applies to the Commonwealth countries and dependencies listed as extradition countries in the Schedule subject to the limitations, conditions, exceptions or qualifications set out in the Commonwealth Countries Regulations.
As a dependency of the United Kingdom, Hong Kong was previously listed in the Schedule to the Commonwealth Countries Regulations. On its reversion to Chinese sovereignty on 1 July 1997 it will cease to be part of the Commonwealth and hence will cease to come within the scope of the London Scheme.
In anticipation of this Australia signed the Agreement for the Surrender of Accused and Convicted Persons between the Government of Australia and the Government of Hong Kong ("the Agreement") on 15 November 1993. The Extradition (Hong Kong) Regulations have been made to give effect in Australian domestic law to the Agreement from the date when the Agreement enters into force.
When the Agreement enters into force Hong Kong's extradition relationship with Australia will cease to be governed by the London Scheme. Accordingly, the Regulations will commence on that date.
Details of the Regulations are as follows:
Regulation 1 provides that the Regulations commence on 29 June 1997, which is the date on which the Extradition (Hong Kong) Regulations will commence.
Regulation 2 provides that the Commonwealth Countries Regulations are amended as set out in the Regulations.
Regulation 3 provides that Hong Kong is omitted from the list of extradition countries set out in Part 1 of the Schedule.
Overview
The Extradition (Commonwealth Countries) Regulations (Amendment) 1997 No. 122, issued under the authority of the Attorney-General and Minister for Justice, addresses the need to update the extradition arrangements in light of the reversion of Hong Kong to Chinese sovereignty on 1 July 1997. This amendment was enacted to ensure that Australia's extradition processes are consistent with the change in Hong Kong's status, which meant it would cease to be part of the Commonwealth and thus outside the scope of the existing London Scheme. The policy objective is to maintain effective legal cooperation and extradition processes with Commonwealth countries while accommodating the unique circumstances arising from Hong Kong's sovereignty change. The Regulations amend the Extradition (Commonwealth Countries) Regulations by omitting Hong Kong from the list of extradition countries in the Schedule, reflecting its new status and the commencement of the Extradition (Hong Kong) Regulations, which implement the new extradition agreement between Australia and Hong Kong.
Scope and Application
The Extradition (Commonwealth Countries) Regulations (Amendment) 1997 amends the existing Extradition (Commonwealth Countries) Regulations by omitting Hong Kong from the list of extradition countries. This amendment is in preparation for Hong Kong's reversion to Chinese sovereignty on 1 July 1997, which will result in Hong Kong ceasing to be part of the Commonwealth and thus falling outside the scope of the Commonwealth Scheme for the Rendition of Fugitive Offenders, also known as the London Scheme. The Extradition Act 1988 applies to extradition countries and dependencies listed in the Schedule to the Commonwealth Countries Regulations, subject to any limitations, conditions, exceptions, or qualifications specified in those regulations. The Extradition (Hong Kong) Regulations will govern the extradition relationship between Australia and Hong Kong from the date the Agreement for the Surrender of Accused and Convicted Persons between the two governments enters into force. This legislative change ensures that Australia’s extradition practices are aligned with the new political status of Hong Kong and its altered legal framework.
Key Provisions
The main operative sections of the Extradition (Commonwealth Countries) Regulations (Amendment) 1997 No. 122 involve amendments to the existing regulations concerning extradition countries. Specifically, Regulation 2 amends the Commonwealth Countries Regulations by omitting Hong Kong from the list of extradition countries in Part 1 of the Schedule. This amendment takes effect on 29 June 1997, as stated in Regulation 1, which is the same date that the Extradition (Hong Kong) Regulations are set to commence. Regulation 3 directly implements the removal of Hong Kong from the extradition countries list.
These regulations impose specific obligations and requirements on parties and entities involved in extradition proceedings. By omitting Hong Kong from the list of extradition countries, the regulations ensure that extradition processes between Australia and Hong Kong are no longer governed by the Commonwealth Scheme for the Rendition of Fugitive Offenders (the London Scheme). Instead, they are governed by the newly established Agreement for the Surrender of Accused and Convicted Persons between Australia and Hong Kong. This shift necessitates compliance with the new Extradition (Hong Kong) Regulations, which provide a framework for the extradition relationship post-reversion of Hong Kong's sovereignty.
Breaching the provisions of these regulations can lead to significant legal consequences. The Extradition Act 1988, under which these regulations operate, includes provisions for offences and penalties. Although the specific penalties are not detailed in the explanatory statement, breaches of extradition laws generally carry severe penalties, including fines and imprisonment. The severity of these penalties underscores the importance of adhering to the legal frameworks established by the Act and its associated regulations.