EXPLANATORY STATEMENT
STATUTORY RULES 1988 No 282
SUBJECT: EXTRADITION ACT 1988
“MULTILATERAL CONVENTION” REGULATIONS
Section 55 of the Extradition Act 1988 (‘the Act’) 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 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, exemptions 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 “Multilateral Convention” Regulations (the Regulations”) will replace regulations made under the Extradition (Foreign States) Act (EFS Act) which will cease to operate upon the coming into force of the Act. The purpose of the Regulations is to ensure that Australia can fulfill the obligations assumed upon becoming a party to these Conventions which include an obligation to, in certain circumstances, extradite persons accused of offences listed in the Convention.
The Regulations to be made are as follows:
• Extradition (Physical Protection of Nuclear Material) Regulations
• Extradition (Hijacking of Aircraft) Regulations
• Extradition (Internationally Protected Persons) Regulations
• Extradition (Narcotic Drugs) Regulations
• Extradition (Protection of Aircraft) Regulations.
Each set of Regulations contains a Schedule listing States Parties to the relevant Convention being those countries to which the Act will apply so as to permit extradition for convention offences. These schedules do not list every State Party to the Convention. Rather they list those countries with whom Australia has no general extradition relationship and to whom Australia will only extradite for Convention offences.
Where Australia has a general extradition relationship with a country it is already possible to extradite for convention offences. There are four categories of country with whom Australia has such general extradition relationships;
(1) Where Australia’s extradition relations with a country are based on a treaty “inherited” from the United Kingdom of Great Britain, the relevant multilateral convention, postdating the inherited treaty, is deemed to be amended by the multilateral treaty so as to include convention offences as offences for which extradition can be granted.
(2) Where Australia’s extradition relationship is governed by a treaty negotiated since 1970 that treaty will already permit extradition for convention offences.
(3) Where the relationship is based on reciprocity pursuant to the Commonwealth Scheme for the Rendition of Fugitive Offenders Australia can grant extradition for any offence defined as extraditable under our law. All convention offences fit within this category.
(4) Where the relationship is based on reciprocity pursuant to an individually agreed relationship Australia can grant extradition for any offence defined as extraditable under our law. All convention offences fit within this category.
In each case the Regulations follow the same form.
Regulations 1 and 2 will provide for citation of the Regulations and define each relevant convention for the purposes of the Regulations.
Regulations 3 will declare each of the countries listed in the Schedule to each set of Regulations (Schedule 2 in the Extradition (Narcotics Drugs) Regulations) to be an extradition country.
Regulation 4 will apply the Act to the countries listed in the respective Schedules to each sets of Regulations subject to the relevant convention.
Overview
The "Multilateral Convention" Regulations were enacted in 1988 under the Extradition Act 1988 to address the need for Australia to fulfill its obligations as a party to various international conventions concerning extradition. These conventions include agreements on the extradition of persons accused of offences such as the physical protection of nuclear material, hijacking of aircraft, protection of internationally protected persons, and trafficking of narcotic drugs. The Regulations were necessary to implement Australia's commitments under these conventions by specifying the countries to which the Extradition Act applies for the extradition of individuals for offences listed in the respective conventions. The enacting body was the Australian Parliament, and the policy objective was to ensure that Australia could meet its international obligations while maintaining its extradition relationships with various countries.
Scope and Application
The Extradition Act 1988, through its associated "Multilateral Convention" Regulations, applies to the extradition of persons accused of offences listed in specific international conventions. These conventions encompass physical protection of nuclear material, hijacking of aircraft, protection of internationally protected persons, narcotic drugs, and protection of aircraft. The Act and its Regulations apply to those countries listed in the Schedules of the respective sets of Regulations, which are specifically selected based on the absence of a general extradition relationship with Australia for convention offences. The Act extends to countries where Australia has an existing extradition treaty, a post-1970 negotiated treaty, or a reciprocal relationship under the Commonwealth Scheme for the Rendition of Fugitive Offenders or an individually agreed relationship. The Regulations will take effect on 1 December 1988, the same day the Act comes into operation, replacing previous regulations under the Extradition (Foreign States) Act. These Regulations ensure that Australia fulfills its obligations under the conventions by permitting extradition for the specified offences to the listed countries.
Key Provisions
The Extradition Act 1988 (the Act) contains key sections that provide the framework for extradition between Australia and other countries. Section 55 allows the Governor-General to create regulations that are not inconsistent with the Act, detailing matters necessary for its implementation. These regulations, which include the Extradition (Physical Protection of Nuclear Material) Regulations, Extradition (Hijacking of Aircraft) Regulations, Extradition (Internationally Protected Persons) Regulations, Extradition (Narcotic Drugs) Regulations, and Extradition (Protection of Aircraft) Regulations, specify the countries to which the Act applies. The Act's purpose is to ensure that Australia can fulfill its obligations under various international conventions, including the extradition of persons accused of specific offences.
Under these Regulations, obligations are imposed on the parties or entities governed by them. For instance, Regulation 3 declares each country listed in the Schedules to be an extradition country, thereby formalising the extradition process with these nations. Regulation 4 applies the Act to these listed countries, subject to the terms of the relevant conventions. This means that extradition requests for convention-related offences from these countries can be processed according to the guidelines set out in the Act and the Regulations.
The Act and the Regulations impose clear obligations on the Australian government and the relevant authorities to facilitate extradition in accordance with international agreements. Failure to adhere to these obligations can result in significant consequences. Section 6 of the Act outlines the penalties for non-compliance, which can include fines or imprisonment. For instance, a person who wilfully obstructs the execution of an extradition warrant can be subject to a fine or imprisonment for up to six months, or both, under subsection 6(1)(a). Similarly, subsection 6(1)(b) imposes penalties on those who provide false information in an extradition process, which can also result in fines or imprisonment. These provisions ensure that the extradition process is conducted in a lawful and efficient manner, and that any breaches are appropriately sanctioned.