EXPLANATORY STATEMENT
Select Legislative Instrument 2009 No. 259
Issued by the authority of the Minister for Home Affairs
Extradition Act 1988
Extradition (Currency) Regulations 2009
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 International Convention for the Suppression of Counterfeiting Currency 1929 and the protocol to that Convention (the Convention). The Extradition (Currency) Regulations made in 1990 (the Currency Regulations) declared countries listed in the Schedule of the Currency Regulations to be ‘extradition countries’ for the purposes of the Act. The countries listed in the Schedule were those countries that were a party to the Convention at the time the Currency Regulations were made. The Schedule did not include a number of countries that had become a party to the Convention since the Currency Regulations were made.
The Extradition (Currency) Regulations 2009 (the Regulations) repeal and replace the Currency 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 (Currency) Regulations 2009 were introduced to address the need for updating the list of countries designated as extradition countries under the Extradition Act 1988. The 1988 Act allows for the extradition of persons from Australia to specified extradition countries and facilitates requests for extradition by Australia to other countries. However, the original Extradition (Currency) Regulations made in 1990 only listed countries that were parties to the International Convention for the Suppression of Counterfeiting Currency 1929 at the time, thereby excluding countries that became parties to the Convention subsequently. This gap was addressed by the 2009 Regulations, which declare that any country for which the Convention is in force is an extradition country under the Act, thereby ensuring Australia meets its international obligations under the Convention. These Regulations were issued by the Minister for Home Affairs and simplify administrative arrangements by avoiding the need to amend the Regulations each time a new country becomes a party to the Convention.
Scope and Application
The Extradition (Currency) Regulations 2009 apply to the extradition of individuals from Australia to countries that are parties to the International Convention for the Suppression of Counterfeiting Currency 1929. These regulations, issued under the Extradition Act 1988, amend the previous Extradition (Currency) Regulations made in 1990 by replacing the specific list of extradition countries with a broader provision that any country party to the Convention is considered an extradition country. This approach streamlines the extradition process by avoiding the need to update the regulations each time a new country joins the Convention. The Act applies to the extradition of individuals from Australia to these countries and to New Zealand, subject to the conditions outlined in the Convention and the Act itself, which include specific safeguards against extradition for political or military offences, refusal of extradition if the death penalty applies, and protection against torture. The Act extends across the Commonwealth of Australia, ensuring that Australia can meet its international obligations under the Convention. The Attorney-General has a broad discretion to refuse extradition requests, and consultation was deemed unnecessary as the Regulations do not substantially alter existing arrangements or affect businesses directly or indirectly.
Key Provisions
The Extradition (Currency) Regulations 2009 (the Regulations) are a significant update to the Extradition (Currency) Regulations made in 1990. These Regulations serve to amend the way countries are designated as 'extradition countries' under the Extradition Act 1988 (the Act). The key provisions of the Regulations are set out in section 5, where a country, or a colony, territory, or protectorate of a country, for which the International Convention for the Suppression of Counterfeiting Currency 1929 (the Convention) is in force, is declared to be an 'extradition country'. This declaration ensures that Australia is able to fulfil its international obligations under the Convention by providing a dynamic framework that automatically includes any country that becomes a party to the Convention at any given time, thereby avoiding the need for continual amendments to the Regulations.
The Regulations impose certain obligations on parties involved in extradition processes. For example, extradition requests must comply with the Act and the Convention, adhering to the modern 'no evidence' standard for documentation provided in support of any extradition request. Countries are not required to provide evidence sufficient to establish a prima facie case that the person committed the offence. Furthermore, the Act sets out various safeguards that apply to extradition requests, such as prohibiting extradition where the person is sought for or in connection with their race, religion, nationality, or political opinions, or where the person could be tried, sentenced, or detained for a political or military offence. Extradition must also be refused if 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. Similarly, extradition must 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.
Failure to comply with the requirements set out in the Extradition Act 1988 and the Extradition (Currency) Regulations 2009 can result in various consequences. The Act imposes offences and penalties for breaches, which can lead to civil or criminal consequences. For instance, if an extradition request is found to be non-compliant with the Act or the Convention, the request may be rejected, and the requesting country may face diplomatic repercussions. Additionally, any actions taken in violation of the Act or the Regulations could result in legal actions being brought against the responsible parties, potentially leading to fines or imprisonment depending on the severity of the breach. The specific penalties for breaches of the Act and the Regulations are not detailed in the explanatory statement, but they are likely to be significant given the serious nature of extradition matters.