Extradition (Federative Republic of Brazil) Regulations 1996 No. 170
EXPLANATORY STATEMENT
Statutory Rules 1996 No. 170
Issued by the Authority of the Attorney-General and Minister for Justice
Extradition Act 1988
Extradition (Federative Republic of Brazil) Regulations
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)(a) of the Act provides that regulations may apply the Act to a specified extradition country subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to a bilateral extradition treaty between Australia and that country, being a treaty a copy of which is set out in the regulations.
An extradition treaty between Australia and the Federative Republic of Brazil was signed in Canberra on 22 August 1994. The Treaty was tabled in the Senate on 30 November 1994 and the House of Representatives on 5 December 1994. In accordance with the Government's policy on greater parliamentary involvement in Australia's treaty-making processes, the National Interest Analysis for the Treaty was tabled in Parliament on 21 May 1996.
On 22 April 1996, the Federative Republic of Brazil notified Australia, in accordance with Article 21 of the Treaty, that its domestic requirements for the Treaty's entry into force had been satisfied. The Regulations will enable Australia to give domestic effect to the Treaty. The Treaty enters into force 30 days after the Contracting Parties have notified each other that they have complied with their respective requirements for the entry into force of the Treaty. The Federative Republic of Brazil will be notified on 2 August 1996 that Australia's requirements for the Treaty's entry into force have been complied with. Thirty days after that date, that is on 1 September 1996, the Treaty will enter into force between Australia and the Federative Republic of Brazil, which is also the commencement date of the proposed Regulations.
Australia presently has an extradition relationship with Brazil on a non-treaty basis. Australia is able to extradite to Brazil by way of the Extradition (Brazil) Regulations (Statutory Rules 1988 No. 299) which apply the Act to Brazil.
The Treaty will replace the existing non-treaty application of the Act to Brazil. As with all of Australia's extradition treaties the extradition treaty with the Federative Republic of Brazil contains all the internationally accepted human rights safeguards which are now a part of modern extradition. Under the Treaty, extradition will not be permitted where the person is sought for, or in connection with his or her race, religion, nationality or political opinions. Extradition is also not permitted where the person would be subjected to to death penalty or tried, sentenced or detained for a political or military law offence.
Details of the Regulations are as follows:
Regulation 1 is a citation provision.
Regulation 2 provides for the Regulations to commence on 1 September 1996, on which date the Treaty comes into force between Australia and the Federative Republic of Brazil.
Regulation 3 declares the Federative Republic of Brazil to be an extradition country.
Regulation 4 applies the Act to the Federative Republic of Brazil subject to the Treaty, the English language text of which is reproduced as a Schedule to the Regulations.
Regulation 5 repeals the Extradition (Brazil) Regulations (Statutory Rules 1988 No. 299), which currently apply the Extradition Act 1988 to Brazil on a non-treaty basis.
Overview
The Extradition (Federative Republic of Brazil) Regulations 1996 No. 170 were enacted to provide for the application of the Extradition Act 1988 to the Federative Republic of Brazil, following the signing of a bilateral extradition treaty between Australia and Brazil. The Extradition Act 1988, enacted by the Commonwealth Parliament, provides a legal framework for the extradition of fugitive criminals between Australia and other countries, and these regulations were created to implement the specific terms of the treaty with Brazil. The primary objective of these regulations is to ensure that extradition processes between Australia and Brazil adhere to the human rights safeguards and other conditions stipulated in the treaty, thereby replacing the previous non-treaty based extradition arrangement.
Scope and Application
The Extradition (Federative Republic of Brazil) Regulations 1996 No. 170, made under the Extradition Act 1988, provide the framework for the extradition of individuals between Australia and the Federative Republic of Brazil. These regulations apply to any person who is subject to extradition proceedings under the Extradition Act 1988 and who is located in Australia or the Federative Republic of Brazil. They also apply to the conduct and transactions involved in the extradition process, ensuring that it adheres to the terms outlined in the bilateral extradition treaty between the two countries. The regulations are intended to give effect to the treaty signed in Canberra on 22 August 1994, which was subsequently tabled in the Australian Parliament and has now entered into force. These regulations replace the existing non-treaty application of the Extradition Act 1988 to Brazil and ensure that any extradition complies with internationally accepted human rights safeguards, including prohibitions against extraditing individuals on the basis of race, religion, nationality, or political opinions, as well as preventing extradition where the individual would face the death penalty or be tried for a political or military law offence. The scope of these regulations is limited to the Federative Republic of Brazil and they do not extend to other countries unless specified through subordinate instruments.
Key Provisions
The Extradition (Federative Republic of Brazil) Regulations 1996 No. 170 provide the legal framework for the extradition relationship between Australia and Brazil under the Extradition Act 1988. Regulation 2 specifies that these Regulations commence on 1 September 1996, which is also the date the extradition treaty between Australia and Brazil comes into force. Regulation 3 formally declares Brazil to be an extradition country under Australian law, establishing the legal basis for the extradition process between the two nations. Regulation 4 applies the Extradition Act 1988 to Brazil, subject to the terms of the bilateral extradition treaty, which is detailed in the Schedule to these Regulations. This means that the Act, including any relevant procedures and safeguards, will govern extradition requests from Brazil. Regulation 5 repeals the previous Extradition (Brazil) Regulations (Statutory Rules 1988 No. 299) that applied to Brazil on a non-treaty basis, thereby replacing the old regulatory framework with the new treaty-based approach.
These Regulations impose specific obligations and requirements on the parties involved in the extradition process. The Attorney-General and Minister for Justice, who have the authority to issue these Regulations, must ensure that the Act is applied in accordance with the terms of the extradition treaty. The treaty, which includes human rights safeguards, requires that extradition will not be granted if the person is sought for reasons related to their race, religion, nationality, or political opinions, or if they would face the death penalty or be tried for a political or military law offence. This means that the Australian authorities must thoroughly assess each extradition request to ensure compliance with these conditions before proceeding. Additionally, the Regulations mandate that all communications and documents related to extradition requests must be conducted in English, as specified in the Schedule.
Failure to comply with the provisions of these Regulations can result in significant legal consequences. Under the Extradition Act 1988, any person who fails to comply with an order or direction issued by the Minister under the Act may be guilty of an offence. The penalties for such offences can include substantial fines and imprisonment, with the exact penalties varying depending on the severity of the breach and the specific provisions of the Act that have been contravened. Additionally, any actions that contravene the terms of the extradition treaty, such as extraditing a person in violation of the agreed safeguards, could lead to diplomatic repercussions between Australia and Brazil. It is therefore imperative that all parties involved in the extradition process adhere strictly to the Regulations to avoid these serious consequences.