EXPLANATORY STATEMENT
STATUTORY RULES 1988 NO. 292
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 The EFS Act will be repealed by the Extradition (Repeal and Consequential Provisions) Act 1988 (‘ERC Act’).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, enacted by the Parliament of Australia, was introduced to establish a legal framework for the extradition of persons between Australia and other countries. The Act aimed to address the need for a comprehensive legal structure to facilitate the extradition process in accordance with international treaties and agreements. These “Bilateral Treaty” Regulations, made under section 55 of the Act, were designed to apply the Act to specified countries in accordance with bilateral extradition treaties, replacing the previous regulations under the Extradition (Foreign States) Act 1966. The regulations, which came into effect on 1 December 1988, apply to a range of countries including Austria, Belgium, Finland, Israel, Italy, Luxembourg, the Netherlands, Norway, Portugal, Spain, Sweden, and the United States. These regulations ensure that Australia’s obligations under multilateral conventions are fulfilled through the bilateral treaties listed in the Schedule to the Regulations.
Scope and Application
The Extradition Act 1988 applies to the process of extraditing individuals to and from specified extradition countries, which include the Republic of Austria, the Kingdom of Belgium, the Republic of Finland, the State of Israel, the Republic of Italy, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, Norway, the Republic of Portugal, the Kingdom of Spain, Sweden, and the United States of America. These countries are identified as such in the "Bilateral Treaty" regulations, which are made under Section 55 of the Act and apply the Act subject to the terms and conditions of bilateral extradition treaties between Australia and each of these countries. The regulations are designed to ensure compliance with both bilateral treaties and Australia's obligations under multilateral conventions, with the latter being addressed through the treaties themselves rather than through the regulations. The regulations come into effect on 1 December 1988, the same day as the Extradition Act 1988, and replace previous regulations made under the Extradition (Foreign States) Act 1966. The Extradition (Repeal and Consequential Provisions) Act 1988 will also come into operation on the same day, repealing the Extradition (Foreign States) Act 1966. The regulations are applicable to persons and conduct relevant to the extradition process within the specified countries, and their geographic reach is limited to these jurisdictions.
Key Provisions
The key provisions of the Extradition Act 1988 ("the Act") are outlined in Section 55, which empowers the Governor-General to create regulations necessary for the implementation and effectiveness of the Act. These regulations, as seen in the Explanatory Statement, can specify matters required or permitted by the Act and must be consistent with it (Section 55). The regulations can also apply the Act to a specified extradition country to enforce a bilateral extradition treaty (Subparagraph 11(1)(a)). The regulations proposed in the Explanatory Statement will apply the Act to countries such as the Republic of Austria, the Kingdom of Belgium, and the United States of America, among others, subject to the respective bilateral treaties (Clause 4).
The Act imposes several obligations and requirements on the parties or entities it governs. Firstly, it requires the Governor-General to make regulations that align with the Act and are necessary for its execution (Section 55). These regulations must be in line with the bilateral treaties in question and ensure that Australia's obligations under multilateral conventions are fulfilled through the specified treaties (Clause 4). Furthermore, the regulations must replace the outdated regulations made under the Extradition (Foreign States) Act 1966 ("EFS Act") and apply the Act to the relevant countries based on the bilateral treaties alone.
Breaches of the Extradition Act 1988 and its regulations can result in various civil and criminal consequences. While the specific penalties are not outlined in the Explanatory Statement, the general legal framework suggests that violations could lead to fines, imprisonment, or other penalties as deemed appropriate by the courts. Given the nature of extradition laws, breaches might also carry significant diplomatic repercussions, affecting international relations. The Extradition (Repeal and Consequential Provisions) Act 1988 ("ERC Act") will ensure that the EFS Act is repealed and the new regulations come into effect on the same day as the Extradition Act 1988, ensuring a smooth transition and avoiding any legal vacuum.