EXPLANATORY STATEMENT
Select Legislative Instrument 2008 No. 12
Issued by the authority of the Minister for Home Affairs
Extradition Act 1988
Extradition (Hong Kong) Regulations 2008
Section 55 of the Extradition Act 1988 (the Act) provides, in part, that the Governor-General may 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.
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 Agreement for the Surrender of Accused and Convicted Persons between the Government of Australia and the Government of Hong Kong(the Agreement) was signed on 15 November 1993. The Agreement is given domestic legal effect by the Extradition (Hong Kong) Regulations (the Principal Regulations), made on 28 May 1997. The Protocol between the Government of Australia and the Government of the Hong Kong Special Administrative Region of The People’s Republic of China Amending the Agreement for the Surrender of Accused and Convicted Persons of 15 November 1993 (the Protocol), signed on 19 March 2007, seeks to modernise and provide for more effective extradition arrangements between Australia and Hong Kong.
The Regulations replace the Principal Regulations by applying the Act to Hong Kong, subject to the Agreement as amended by the Protocol.
The Protocol amends the Agreement in two ways. First, it changes the standard for extradition requests from Hong Kong to Australia from a ‘prima facie’ to a ‘no evidence’ standard. A request for extradition from Hong Kong would need to include statements about the offence for which extradition is sought (including applicable penalties) and about the acts and omissions which are alleged to constitute the offence. However, the provision of evidence in relation to the offence would no longer be required. This amendment will reduce the time and resources required to process standard extradition requests from Hong Kong to Australia. Second, the Protocol obliges both countries to provide the other with reasons in the event of a partial or full refusal to grant an extradition request.
The Joint Standing Committee on Treaties recommended binding treaty action be taken in relation to the Protocol in Report 87, tabled on 16 August 2007.
The Regulations commenced on the day the Protocol entered into force for Australia. In accordance with Article 5 of the Protocol, the Protocol enters into force for Australia thirty days after the date on which the Parties have notified each other in writing that their respective requirements for the entry into force of the Protocol have been complied with.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Details of the Regulations are set out in the Attachment.
ATTACHMENT
Details of the Extradition (Hong Kong) Regulations 2008
Regulation 1 names the Regulations.
Regulation 2 provides that the Regulations commence on the date the Protocol comes into force.
Regulation 3 repeals the Extradition (Hong Kong) Regulations.
Regulation 4 defines Act to mean the Extradition Act 1988.
Regulation 5 declares the Hong Kong Special Administrative Region of the People’s Republic of China as an extradition country.
Regulation 6 provides that the Extradition Act 1988 applies to the Hong Kong Special Administrative Region of the People’s Republic of China subject to the Agreement and the Protocol.
Schedule 1 contains the text of the Agreement.
Schedule 2 contains the text of the Protocol.
Overview
The Extradition (Hong Kong) Regulations 2008 were introduced to modernise the extradition arrangements between Australia and Hong Kong, in line with the Protocol signed on 19 March 2007, which amended the 1993 Agreement for the Surrender of Accused and Convicted Persons. These regulations were enacted under section 55 of the Extradition Act 1988, which allows for the creation of regulations necessary for the Act's implementation. The primary objective of the regulations is to reflect the changes made by the Protocol, including the adjustment of the extradition request standard from a 'prima facie' to a 'no evidence' standard for requests from Hong Kong to Australia, and to mandate that both countries provide reasons for any partial or full refusal of extradition requests. This legislative instrument aims to streamline the extradition process and enhance the effectiveness of the extradition arrangements between the two jurisdictions.
Scope and Application
The Extradition (Hong Kong) Regulations 2008 apply to the Hong Kong Special Administrative Region of the People's Republic of China, extending the application of the Extradition Act 1988 to this region under the terms of the Agreement for the Surrender of Accused and Convicted Persons between Australia and Hong Kong, as amended by the Protocol. The Regulations are designed to facilitate the extradition process between Australia and Hong Kong, incorporating amendments to the extradition request standards and the obligation to provide reasons for refusals. These Regulations apply to individuals who are subject to extradition requests from Hong Kong to Australia and the authorities responsible for processing such requests in both jurisdictions. They are applicable nationwide within Australia, providing a legal framework for the extradition process as per the international agreement. The Regulations do not introduce new exclusions or exemptions but rather adapt the existing framework to align with the updated terms of the Agreement as amended by the Protocol. The scope of the Regulations can be further defined or extended through subordinate instruments made under the authority of the Act.
Key Provisions
The Extradition (Hong Kong) Regulations 2008, issued under section 55 of the Extradition Act 1988, make provisions for the application of the Act to the Hong Kong Special Administrative Region of the People’s Republic of China. Regulation 1 names these regulations, and regulation 2 stipulates that they will commence on the day the Protocol comes into force, as per Article 5 of the Protocol. Regulation 3 repeals the previous Extradition (Hong Kong) Regulations, ensuring that only the new regulations apply once the Protocol is in effect. Regulation 4 defines 'Act' as the Extradition Act 1988, while regulation 5 declares Hong Kong as an extradition country. Regulation 6 states that the Extradition Act 1988 will apply to Hong Kong, subject to the Agreement and the Protocol. Schedule 1 includes the text of the original Agreement for the Surrender of Accused and Convicted Persons, and schedule 2 contains the text of the Protocol, which amends the Agreement.
These regulations impose specific obligations and requirements on both Australia and Hong Kong concerning extradition processes. They mandate that the Extradition Act 1988 will be applied to Hong Kong, subject to the conditions set out in the Agreement and the Protocol. One of the key requirements is that Hong Kong must now adopt a 'no evidence' standard for extradition requests to Australia. This means that Hong Kong must provide detailed statements about the offence and the alleged acts or omissions without necessarily including evidence, streamlining the extradition process. Additionally, both parties are required to provide reasons if they refuse an extradition request, whether partially or fully.
Breach of the obligations set out in the Extradition (Hong Kong) Regulations 2008 could lead to legal consequences. The Extradition Act 1988 itself includes provisions for various offences and penalties related to extradition, although specific penalties are not detailed within these regulations. Typically, failure to comply with extradition requests or providing misleading information could result in civil or criminal penalties under the Act. However, the precise nature and maximum penalties for such breaches would be governed by the broader provisions of the Extradition Act 1988 rather than the Regulations themselves. The Regulations ensure that both Australia and Hong Kong adhere to the agreed terms for extradition, maintaining the integrity of the extradition process between the two jurisdictions.