EXPLANATORY STATEMENT
STATUTORY RULES 1988 NO. 289
SUBJECT: EXTRADITION ACT 1988
“BILATERAL TREATY” 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)(a) provides that regulations may apply the Act to a specified extradition country to give effect to a bilateral extradition treaty.
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.
Each set of Regulations follows the same form and will apply the Act to the following countries subject, in each case, to the relevant extradition treaty:
Republic of Austria
Kingdom of Belgium
Republic of Finland
State of Israel
Republic of Italy
Grand Duchy of Luxembourg
Kingdom of the Netherlands
Norway
Republic of Portugal
Kingdom of Spain
Sweden
United States of America
The proposed Regulations will replace regulations made under the Extradition (Foreign States) Act 1966 (‘EFS Act’) and differ only in that the Act is applied to the country concerned subject only to the bilateral treaty. The EFS Act will be repealed by the Extradition (Repeal and Consequential Provisions) Act 1988 (‘ERC Act’). The ERC Act will come into operation on the same day as the Extradition Act 1988 comes into the operation. References in the previous regulations to multilateral conventions dealing, inter alia, with extradition
are not included in these regulations because each of the treaties given domestic legal effect to by these regulations will, of its own force, permit extradition for multilateral convention offences and will therefore ensure that Australia’s obligations under the multilateral conventions, qua the listed countries, are capable of being fulfilled.
Details of the proposed Regulations in each case are as follows.
Clauses 1 and 2 will provide for the citation of the Regulations and definitions for the Regulations.
Clause 3 will declare, in each case, the relevant country to be an extradition country for the purposes of the Act.
Clause 4 will apply the Act in each case to the relevant country subject to the terms and conditions of bilateral treaties between Australia and each relevant country. In each case the relevant treaty is reproduced as a Schedule to the Regulations.
Overview
The Extradition Act 1988 was enacted to provide a comprehensive legal framework for the extradition of fugitives between Australia and other specified countries, ensuring that the process is conducted in a manner that complies with international obligations and domestic legal standards. This Act was introduced to address the need for a unified and efficient extradition process that would facilitate the return of individuals wanted for criminal prosecution or to serve a sentence. The policy objective of the Act is to enhance international cooperation in law enforcement and to ensure that extradition is conducted fairly and in accordance with the principles of justice and mutual respect between countries. The Act empowers the Governor-General to make regulations necessary for its implementation, including the application of the Act to specific countries based on bilateral extradition treaties. The Extradition (Bilateral Treaty) Regulations 1988 were made under this authority, applying the Act to specific countries, each subject to the relevant bilateral extradition treaty.
Scope and Application
The Extradition Act 1988 applies to the extradition of individuals from Australia to the specified countries listed in the “Bilateral Treaty” Regulations, subject to the terms of bilateral extradition treaties between Australia and each country. The Act applies to individuals who are wanted for criminal offences in one of the specified countries and are found within Australia's jurisdiction. The geographic reach of the Act is national, applying across all states and territories of Australia. The application of the Act is contingent upon the existence of a bilateral extradition treaty between Australia and the relevant country, and the Act does not apply to multilateral extradition conventions. The regulations provide for the citation and definitions, declare each relevant country as an extradition country, and apply the Act subject to the bilateral treaties, which are reproduced as schedules to the regulations. The regulations replace the previous extradition regulations made under the Extradition (Foreign States) Act 1966 and will come into effect on 1 December 1988, the same day the Extradition Act 1988 commences.
Key Provisions
The Extradition Act 1988 (the Act) provides the framework for the extradition of individuals between Australia and specified countries. Section 55 of the Act allows the Governor-General to make regulations prescribing matters necessary for the Act's operation, including applying it to specified countries to give effect to bilateral extradition treaties (section 11(1)(a)). The Act will come into effect on 1 December 1988, as recommended by Executive Council Minute no. 102, and the corresponding regulations will also take effect on the same date under subsection 4(2) of the Acts Interpretation Act 1901. These regulations will apply the Act to various countries, including the Republic of Austria, Kingdom of Belgium, Republic of Finland, State of Israel, Republic of Italy, Grand Duchy of Luxembourg, Kingdom of the Netherlands, Norway, Republic of Portugal, Kingdom of Spain, Sweden, and the United States of America, each subject to their respective bilateral extradition treaties.
The obligations under these regulations require that each specified country be recognised as an extradition country for the purposes of the Act. This formal recognition allows for the application of the Act's provisions to facilitate the extradition process. Furthermore, the Act will be applied to each country subject to the terms and conditions outlined in the bilateral treaties. Each treaty, which is included as a Schedule to the regulations, governs the specific extradition arrangements between Australia and the respective country. These treaties ensure that the extradition process adheres to the legal frameworks agreed upon by the participating nations.
Failure to comply with the requirements and obligations set out in these regulations can lead to significant legal consequences. While the Act itself does not specify penalties for breach, the consequences of non-compliance can include legal challenges, delays in extradition proceedings, and potential diplomatic repercussions. It is important for the parties involved to adhere strictly to the terms of the bilateral treaties and the regulations to avoid such outcomes. The enforcement of these regulations is crucial to maintaining the integrity of the extradition process and ensuring that it operates smoothly and effectively.