EXPLANATORY STATEMENT
STATUTORY RULES 1988 No 302
SUBJECT: EXTRADITION ACT 1988
EXTRADITION (FEDERAL REPUBLIC OF GERMANY) REGULATIONS
Section 55 of the Extradition Act 1988 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing 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. Subparagraph 11(1)(b) provides that the Regulations may make provision to the effect that the Act applies in relation to a specified extradition country subject to other limitations, conditions, exceptions or qualifications.
Section 4 of the Acts Interpretation Act 1901 provides that where an Act confers power to make an instrument of a legislative character then, unless the contrary intention appears, the power may be exercised before the Act concerned comes into operation. Executive Council Minute no. 102 recommends that 1 December 1988 be fixed as the day upon which the Act comes into operation. The proposed regulations will take effect, pursuant to subsection 4(2) of the Acts Interpretation Act, on the same day as the Act comes into operation.
The proposed Extradition (Federal Republic of Germany) Regulations (the Regulations) apply the Act to the Federal Republic of Germany. Australia does not have a bilateral extradition treaty with the Federal Republic of Germany but has agreed to grant extradition on the basis of reciprocity. The regulations continue the application of Australia’s extradition laws to the the Federal Republic of Germany which, until the Act comes into operation, is governed by regulations made under the Extradition (Foreign States) Act 1966.
Details of the proposed regulations are as follows:
Clauses 1 and 2: are citation and interpretation provisions.
Clause 3: declares the Federal Republic of Germany to be an extradition country.
Clause 4: applies the Act to the Federal Republic of Germany subject to the limitations, conditions, exceptions or qualifications specified in regulation 5.
Clause 5: Subclause (1) provides that a person is not liable to be surrendered to the Federal Republic of Germany if, had the acts or omissions constituting the offence been committed in Australia, the prosecution would be barred by lapse of time, or where the act or omission constituting the offence was committed within the jurisdiction of Australia.
Subclause (2) provides that the Attorney-General is precluded from issuing a surrender warrant if the person sought could be tried by an extraordinary or ad hoc tribunal or court in the requesting country.
Subclause (3) provides that the conditions in subclauses (1) and (2) apply in addition to any conditions imposed on the issue of warrants of surrender under the Act.
Subclause (4) gives the Attorney-General a discretion to decline to surrender a person to the Federal Republic of Germany if the person is an Australian citizen or if the Attorney-General considers that humanitarian considerations should preclude surrender.
Overview
The Extradition (Federal Republic of Germany) Regulations 1988, enacted to bring into force the Extradition Act 1988, aim to formalise the extradition process between Australia and the Federal Republic of Germany. Although Australia does not have a bilateral extradition treaty with Germany, it has agreed to grant extradition based on reciprocity. The regulations serve to apply Australia's extradition laws to Germany, continuing the framework previously governed by the Extradition (Foreign States) Act 1966. The policy objective is to ensure that the extradition process adheres to the principles outlined in the Extradition Act 1988 while respecting the limitations and conditions specified in the regulations. These regulations were introduced by the Parliament of Australia to address the need for a formalised extradition process with Germany, and they take effect on the same day as the Act, which is 1 December 1988.
Scope and Application
The Extradition (Federal Republic of Germany) Regulations, made under the Extradition Act 1988, apply the Act to the Federal Republic of Germany and are designed to facilitate the extradition process between Australia and Germany in the absence of a bilateral extradition treaty. These regulations extend the application of Australia’s extradition laws to Germany, which previously fell under the Extradition (Foreign States) Act 1966. The regulations are effective from 1 December 1988, the same day as the Extradition Act 1988 comes into operation, as recommended by Executive Council Minute no. 102. The Act applies to individuals who are sought for surrender to Germany and covers offences committed within Australia's jurisdiction or that would otherwise be barred by lapse of time if committed in Australia. Additionally, the Attorney-General has discretion to decline surrender if the person is an Australian citizen or if humanitarian considerations apply. The regulations also prevent the surrender of individuals who may be tried by extraordinary or ad hoc tribunals in Germany, adding further conditions to those stipulated under the Extradition Act 1988.
Key Provisions
The Extradition (Federal Republic of Germany) Regulations 1988, made under the Extradition Act 1988, extend the application of Australia’s extradition laws to the Federal Republic of Germany. These regulations come into effect on 1 December 1988, the same day as the Extradition Act 1988. Clause 3 of the Regulations identifies the Federal Republic of Germany as an extradition country, while Clause 4 applies the Act to Germany, subject to the limitations and conditions specified in Clause 5.
Clause 5 lays out specific circumstances under which extradition to Germany may not proceed. Subclause (1) stipulates that a person will not be surrendered if, had the alleged offence been committed in Australia, the prosecution would be barred by the statute of limitations, or if the act or omission was committed within Australian jurisdiction. Subclause (2) further provides that the Attorney-General cannot issue a surrender warrant if the person sought could be tried by an extraordinary or ad hoc tribunal or court in Germany. Additionally, Subclause (3) clarifies that these conditions supplement any other conditions that may apply under the Act regarding the issuance of surrender warrants. Finally, Subclause (4) grants the Attorney-General discretion to decline surrendering a person if they are an Australian citizen or if humanitarian considerations suggest against it.
The Regulations impose several obligations on the parties involved. The Attorney-General must consider the specific conditions outlined in Clause 5 before issuing a surrender warrant. This includes assessing whether the person sought could be tried by an extraordinary or ad hoc tribunal, whether the alleged offence falls within the statute of limitations, and whether the offence was committed within Australian jurisdiction. The Attorney-General must also weigh humanitarian considerations and the nationality of the person sought before deciding whether to issue a warrant.
Breach of the provisions in these Regulations could lead to civil or criminal consequences. Although specific offences and penalties are not detailed in the Explanatory Statement, general principles under the Extradition Act 1988 apply. Unauthorized acts or omissions related to extradition processes could result in legal actions against individuals or entities involved. These may include fines or imprisonment, depending on the severity of the breach and the discretion of the court. It is essential to adhere strictly to the conditions and limitations specified in Clause 5 to avoid any potential legal ramifications.