EXPLANATORY STATEMENT
STATUTORY RULES 1988 NO. 186
SUBJECT: EXTRADITION (FOREIGN STATES) ACT 1966
EXTRADITION (GRAND DUCHY OF LUXEMBOURG) REGULATIONS
Section 31 provides for the Governor-General to 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. Subsection 10(1) provides that where, after the commencement of the Act, an extradition treaty (including an extradition treaty that affects or amends an earlier extradition treaty) comes into force between Australia and a foreign State, regulations may provide, if this Act applies in relation to the foreign State at the time of coming into force of that treaty, that the Act applies in relation to that State after that time subject to such limitations, conditions, exceptions or qualifications as are necessary or desirable to give effect to that treaty and are specified in the regulations.
Australia succeeded to an extradition treaty between the United Kingdom and the Grand Duchy of Luxembourg made in 1880.
A modern extradition treaty between Australia and the Grand Duchy of Luxembourg was signed on 23 April 1987. This treaty terminates the treaty of 1880 (see Article 17). It represents a significant departure from that treaty in that it:
(a) abolishes the traditional ‘list’ approach to extradition offences and instead describes an extradition offence as an offence which is punishable under the laws of both parties by imprisonment or other deprivation of liberty for a period of at least one year or by a more severe penalty;
(b) replaces the ‘sufficient evidence’ requirement with a statement of acts or omissions alleged against the fugitive; and
(c) replaces the absolute bar on extradition of Luxembourg nationals with a discretion to refuse, which if exercised may oblige the refusing Party to submit the case to its authorities for prosecution.
Article 16 of the 1987 treaty provides for the treaty to enter into force thirty days after Australia and the Grand Duchy of Luxembourg have exchanged notifications that the legal requirements for its entry into force have been complied with. Australia’s requirements for entry into force are the making of the Extradition (Grand Duchy of Luxembourg) Regulations.
Australia and the Grand Duchy of Luxembourg exchanged diplomatic notes on 13 July 1988 in accordance with Article 16 of the treaty. In accordance with that Article of the treaty Regulation 2 of the Regulations provides that the Regulations come into operation on 12 August 1988 being thirty days after the exchange of diplomatic notes on 13 July.
Overview
The Extradition (Foreign States) Act 1966 was enacted to provide a framework for the extradition of fugitives to and from Australia, and to implement international extradition treaties. The Act was introduced to address the need for a structured legal process to handle extradition requests from foreign states, ensuring that Australia can both request the extradition of its nationals and comply with extradition requests from other countries. The policy objective of the Act is to facilitate the mutual legal assistance between Australia and other nations in the apprehension and punishment of criminal offenders. The Extradition (Grand Duchy of Luxembourg) Regulations 1988 were made under the authority of the Extradition (Foreign States) Act 1966 to implement the extradition treaty with the Grand Duchy of Luxembourg, reflecting modern principles and updating the previous extradition arrangements between the two countries.
Scope and Application
The Extradition (Grand Duchy of Luxembourg) Regulations 1988, made under Section 31 of the Extradition (Foreign States) Act 1966, govern the application of the Act in relation to the Grand Duchy of Luxembourg, following the commencement of the modern extradition treaty between Australia and Luxembourg on 12 August 1988. This Act applies to the extradition of individuals who are wanted for prosecution or punishment for an offence that, according to the treaty, is punishable under the laws of both Australia and Luxembourg by imprisonment or other deprivation of liberty for a period of at least one year or by a more severe penalty. The regulations provide for the application of the Act to the Grand Duchy of Luxembourg, subject to any limitations, conditions, exceptions or qualifications specified in the regulations to give effect to the treaty. These regulations extend the application of the Act to include the new treaty framework, which notably diverges from the 1880 treaty by removing the traditional ‘list’ approach to extradition offences, replacing it with a broader definition that encompasses any offence punishable by the specified penalties, and by replacing the absolute bar on extraditing Luxembourg nationals with a discretionary power to refuse extradition. The Regulations ensure that the Extradition Act operates in accordance with the updated treaty, providing a clear framework for the extradition process between Australia and Luxembourg.
Key Provisions
The Extradition (Grand Duchy of Luxembourg) Regulations (C2004L04584) implement the Extradition (Foreign States) Act 1966 in relation to the Grand Duchy of Luxembourg, following the entry into force of the modern extradition treaty between the two countries on 12 August 1988. Section 31 of the Act empowers the Governor-General to make regulations that are necessary or convenient for carrying out or giving effect to the Act, and these regulations are made pursuant to that power. The Regulations provide that the Extradition (Foreign States) Act 1966 applies to the Grand Duchy of Luxembourg subject to any limitations, conditions, exceptions, or qualifications specified in the Regulations (section 10(1)). The Regulations establish that the Act applies to Luxembourg from the date of the Regulations' operation, thereby ensuring the legal framework for extradition between the two countries is aligned with the new treaty.
The obligations and requirements imposed by the Act and the Regulations on parties or entities governed by them include the adherence to the provisions of the modern extradition treaty between Australia and Luxembourg. These include recognising a broader range of extradition offences, which are defined as those punishable under the laws of both parties by imprisonment or other deprivation of liberty for a period of at least one year or by a more severe penalty. Furthermore, the Regulations mandate that requests for extradition must include a statement of acts or omissions alleged against the fugitive, rather than merely providing sufficient evidence. Another key obligation is the discretionary power to refuse extradition in respect of Luxembourg nationals, which may require the refusing Party to submit the case to its authorities for prosecution if the discretion is exercised.
Failure to comply with the provisions of the Act and the Regulations may result in various consequences, including potential criminal or civil penalties. Under the Extradition (Foreign States) Act 1966, any person who contravenes the Act may be subject to criminal penalties, which can include fines and imprisonment. While the specific maximum penalties are not detailed within the explanatory statement, they are prescribed under the relevant sections of the Act itself. It is also possible that breaches of the Regulations could lead to civil liabilities, depending on the nature and extent of the non-compliance. These consequences underscore the importance of adhering to the legal framework established by the Act and the Regulations.