EXPLANATORY STATEMENT
STATUTORY RULES 1986 NO. 216
EXTRADITION (COMMONWEALTH COUNTRIES) REGULATIONS (AMENDMENT)
Section 37 of the Act provides that the Governor-General may make regulations, not inconsistent with the Act, 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 Act was amended by the Statute Law (Miscellaneous Provisions) Act No. 2, 1985. This Act, which came into force on 16 December 1985, re-enacted the original section 17 of the Act (which empowers the Attorney-General to issue a warrant for the surrender of a fugitive in accordance with the form prescribed for the purposes of the Act) as section 17A. The Regulations, by regulation 23, prescribe Form 13 in the Schedule to the Regulations to be the form for the purpose of section 17. These regulations amend regulation 23 and also prescribe a new Form 13. This form differs from the old Form in that the reference to the section of the Act has been changed from section 17 to section 17A.
The previous Form 13 was addressed to the ‘keeper of the prison’ in which the fugitive was being held in custody.
These regulations amend Form 13 by deleting the reference to the ‘keeper of the prison’ on the basis that a fugitive may not be in custody - he may, for example, have been granted bail. It also makes minor drafting changes to the layout of the form.
Overview
The Extradition (Commonwealth Countries) Regulations (Amendment) Statutory Rules 1986 No. 216 were enacted to address discrepancies in the form prescribed for the surrender of fugitives under the Extradition Act 1988, specifically in relation to the form of warrant for the surrender of a fugitive. The regulations were made under the authority of section 37 of the Act, which allows the Governor-General to prescribe matters necessary for the execution and effect of the Act. These amendments were necessitated by the Statute Law (Miscellaneous Provisions) Act No. 2, 1985, which re-enacted section 17 of the Act as section 17A, thus rendering the existing form, Form 13, inconsistent with the updated legal framework. The primary policy objective of these regulations is to ensure that the legal instruments used in the extradition process are aligned with current legislative requirements, thereby facilitating the effective surrender of fugitives across Commonwealth countries.
Scope and Application
The Extradition (Commonwealth Countries) Regulations (Amendment) Statutory Rules 1986 No. 216 apply to individuals who are fugitives wanted for extradition from Australia to another Commonwealth country, as well as to the authorities responsible for executing extradition warrants. The Regulations amend the existing extradition procedures by modifying the form used to issue warrants for the surrender of fugitives, as authorised under the Extradition Act 1988 (Cth). These Regulations are made under section 37 of the Extradition Act, which allows the Governor-General to issue regulations that are necessary or convenient for carrying out the Act. The amendments update the form prescribed for warrants, reflecting changes in the Act itself and ensuring that the process accommodates fugitives who may not be in prison custody, such as those who have been granted bail. The Regulations do not specify any exclusions or exemptions and apply nationally across Australia, ensuring consistency in the extradition process with Commonwealth countries.
Key Provisions
The main operative sections of these Regulations include the amendment of regulation 23, which adjusts the form prescribed for the warrant under section 17A of the Act. Specifically, regulation 23 now prescribes a new Form 13, which is detailed in the Schedule to the Regulations (section 3). This new form, Form 13, replaces the old form by making specific changes to the content and structure. For instance, the new Form 13 removes the reference to the 'keeper of the prison' and instead generalises the address to accommodate situations where the fugitive may not be in custody but rather on bail (section 3(a)). Additionally, there are minor drafting changes to the layout of the form to improve clarity and usability (section 3(b)).
The obligations imposed by these Regulations on the parties involved are primarily concerned with ensuring the proper execution and application of the warrant for the surrender of a fugitive. The Attorney-General, who is empowered by section 17A of the Act to issue the warrant, must now use the amended Form 13 as prescribed by regulation 23. This change ensures that the warrant remains valid and enforceable regardless of whether the fugitive is in custody or on bail. The new form must be used in all instances where a warrant is issued under section 17A, reflecting the updated legislative framework.
There are no explicit offences, penalties, or civil/criminal consequences outlined in the Regulations themselves for non-compliance with the form requirements. However, failure to adhere to the prescribed form could potentially render the warrant invalid or unenforceable. This could result in legal complications and delays in the extradition process, which might be viewed as a form of non-compliance with the overarching Extradition Act. The primary consequence of using an incorrect or outdated form would likely be the need to reissue the warrant with the correct form, thereby causing procedural disruptions.
The Regulations amend existing provisions to adapt to changes in the legislative framework and to improve the practical application of the extradition process. By updating the form prescribed under regulation 23, the Regulations ensure that the warrant remains applicable in various scenarios, such as when the fugitive is on bail rather than in custody. This amendment reflects a broader commitment to maintaining the effectiveness and relevance of the extradition process under the Act.