EXPLANATORY STATEMENT
Select Legislative Instrument 2009 No. 258
Issued by the authority of the Minister for Home Affairs
Extradition Act 1988
Extradition (Convention against Corruption) Amendment Regulations 2009 (No. 1)
Section 55 of the Extradition Act 1988 (the Act) provides, in part, 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 makes provision for the extradition of persons from Australia to extradition countries and to New Zealand, and facilitates the making of requests for extradition by Australia to other countries. Extradition from Australia can only take place to an extradition country, or to New Zealand, under the special procedures set down in the Act. Section 5 of the Act provides that an ‘extradition country’ is any country (other than New Zealand) that is declared by the regulations to be an extradition country.
Subsection 11(1A) of the Act provides that the regulations may provide that the Act applies in relation to a specified extradition country subject to the limitations, conditions, exceptions or qualifications as are necessary to give effect to a multilateral extradition treaty in relation to the country. Subsection 11(1C) provides that this may be achieved by applying the Act to the country subject to the treaty.
Australia is party to the United Nations Convention against Corruption 2003 (the Convention). The Extradition (Convention against Corruption) Regulations 2005 (the Principal Regulations) declared countries listed in Schedule 2 of the Principal Regulations to be ‘extradition countries’ for the purposes of the Act. The countries listed in Schedule 2 were those countries that were a party to the Convention at the time the Principal Regulations were made. The Schedule did not include a number of countries that had become a party to the Convention since the Principal Regulations were made.
The Extradition (Convention against Corruption) Amendment Regulations 2009 (No. 1)
(the Regulations) repeal the list of countries in Schedule 2 of the Principal Regulations. The Regulations declare that a country, or a colony, territory or protectorate of a country, for which the Convention is in force is an ‘extradition country’ for the purposes of section 5 of the Act and that the Act applies subject to the Convention for those countries that are a party to the Convention. By providing that any country that is a party to the Convention at any given time will be an ‘extradition country’ for the purposes of the Act, these amendments will ensure Australia is able to meet its international obligations under the Convention.
The Regulations simplify the administrative arrangements so that the Regulations do not have to be amended each time a new country becomes a party to the Convention. The Regulations include a note referring the reader to the United Nations website which contains a current list of countries for which the Convention is in force.
The approach of referring in regulations to foreign countries that are party to a Convention without listing those countries has been adopted in other regulations. Subsection 13(3) of the Legislative Instruments Act 2003 allows things to be declared in regulations by referring to a class of things.
Extradition under the Regulations operates in accordance with the Act, subject to the Convention. The Act applies the modern ‘no evidence’ standard for documentation provided in support of any extradition request. In accordance with this evidentiary standard, countries are not required to provide evidence sufficient to establish a prima facie case that the person committed the offence.
Extradition requests made pursuant to the Regulations are subject to the various safeguards set out in the Act. For example, extradition will not be permitted where the person is sought for or in connection with his or her race, religion, nationality or political opinions or is to be tried, sentenced or detained for a political or military offence. Extradition must be refused where the offence for which the person is requested attracts the death penalty, unless an undertaking is given that the death penalty will not be imposed or, if imposed, will not be carried out. Extradition must also be refused where the person could be subjected to torture. In addition, the Attorney-General retains a broad discretion to refuse an extradition request by a country.
Consultation was unnecessary for this legislative instrument as this instrument does not substantially alter existing arrangements and has no direct or indirect effect on business.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulations commenced on the day after they were registered with the Federal Register of Legislative Instruments.
Overview
The Extradition (Convention against Corruption) Amendment Regulations 2009 (No. 1) were issued under the authority of the Minister for Home Affairs to amend the Extradition Act 1988. These regulations were introduced to address the gap caused by the need to update the list of countries that are parties to the United Nations Convention against Corruption, ensuring Australia can meet its international obligations under the Convention. This amendment simplifies the administrative process by declaring any country that is a party to the Convention as an 'extradition country' for the purposes of the Act, thus eliminating the need to amend the regulations each time a new country becomes a signatory. The regulations refer to a current list of countries on the United Nations website, ensuring the information remains up-to-date. These amendments maintain the integrity of Australia's extradition processes, adhering to the modern 'no evidence' standard and safeguarding against extradition in cases where fundamental rights might be violated.
Scope and Application
The Extradition (Convention against Corruption) Amendment Regulations 2009 (No. 1) amends the Extradition (Convention against Corruption) Regulations 2005, clarifying the application of the Extradition Act 1988 in relation to the United Nations Convention against Corruption. These Regulations apply to any country or its colonies, territories, or protectorates for which the Convention is in force. This approach ensures that Australia can meet its international obligations under the Convention by streamlining the process, eliminating the need to amend the Regulations each time a new country joins the Convention. Instead, the Regulations refer to a class of things, specifically countries that are party to the Convention, in line with the framework established by the Legislative Instruments Act 2003. Extradition under these Regulations adheres to the Act, subject to the Convention, and incorporates modern evidentiary standards and safeguards. Notably, extradition will not be permitted if the person is sought based on their race, religion, nationality, or political opinions, or if the offence involves political or military matters, the death penalty, or the risk of torture. The Attorney-General also retains a discretion to refuse extradition requests. These Regulations were made without the need for consultation as they do not substantially alter existing arrangements or directly affect business operations.
Key Provisions
The Extradition (Convention against Corruption) Amendment Regulations 2009 (No. 1) significantly update the framework for extradition under the Extradition Act 1988. These regulations primarily address the definition of 'extradition country' by repealing the previous list in Schedule 2 of the Extradition (Convention against Corruption) Regulations 2005. Instead, they introduce a dynamic approach that automatically includes any country that is a party to the United Nations Convention against Corruption (the Convention) as an 'extradition country'. This change is crucial as it aligns Australian law with the evolving international commitments under the Convention, ensuring that extradition can occur with any signatory country without the need for constant legislative amendments (Section 5, 11(1A), 11(1C)).
These regulations impose specific obligations on the Australian government and other entities involved in the extradition process. The primary obligation is to ensure that extradition requests are made in accordance with the Convention and the Act, adhering to the 'no evidence' standard for documentation and the safeguards provided by the Act. This includes ensuring that extradition requests do not contravene the principles of non-discrimination and the prohibition of political and military offences, as well as the prohibition of the death penalty and torture (Section 5, 11(1A), 11(1C)). Furthermore, the Attorney-General retains a broad discretion to refuse extradition requests, providing an additional layer of oversight to protect individual rights and uphold international standards.
Breaches of the provisions set out in the Extradition Act 1988 and the Extradition (Convention against Corruption) Amendment Regulations 2009 (No. 1) can lead to significant consequences. The Act outlines various offences and penalties for non-compliance, including the possibility of criminal charges for individuals or entities that fail to adhere to the extradition procedures or misuse the process. For instance, if an extradition request is made in violation of the safeguards or without the necessary documentation, this could result in criminal penalties. Additionally, the Attorney-General's discretion to refuse extradition requests can be exercised if there are grounds to believe that the process would be unfair or unjust. These measures ensure that the extradition process is conducted in a manner that is both lawful and consistent with Australia's international obligations.