EXPLANATORY STATEMENT
STATUTORY RULES 1988 No 283
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 Extradition Act 1988 was enacted to facilitate the extradition of individuals accused of serious crimes between Australia and other jurisdictions. This Act addresses the need to streamline and formalise the process of extraditing individuals in alignment with international obligations and treaties. The Act was enacted by the Australian Parliament, aiming to ensure that Australia can meet its international commitments regarding extradition by adhering to various multilateral conventions. The “Multilateral Convention” Regulations, made under the authority of the Act, serve to specify the countries with which Australia will engage in extradition for offences defined in these conventions. The Regulations ensure that Australia can fulfill its obligations under international treaties such as those pertaining to the protection of nuclear material, hijacking of aircraft, internationally protected persons, narcotic drugs, and the protection of aircraft, by clarifying the scope of extradition to countries that are party to these conventions but lack a general extradition treaty with Australia.
Scope and Application
The Extradition (Multilateral Convention) Regulations 1997, which were enacted under the Extradition Act 1988, govern the application of Australia's obligations under various international conventions pertaining to the extradition of persons accused of specific offences. These regulations specify the countries to which the Extradition Act applies, ensuring that Australia can meet its international commitments to extradite individuals for offences such as the hijacking of aircraft, the protection of nuclear material, and drug trafficking. The regulations apply to individuals accused of committing these specified offences in countries listed in the schedules to the respective extradition regulations, which include states with which Australia has no general extradition relationship, or where Australia will only extradite for convention offences. The scope of the Act is national, operating under Commonwealth authority, and its application can be extended or restricted through the subordinate regulations, which delineate the specific conventions and countries involved. These regulations effectively replace previous extradition regulations under the Extradition (Foreign States) Act and take effect on the same day as the Extradition Act comes into operation.
Key Provisions
The main operative sections of the “Multilateral Convention” Regulations (the Regulations) under the Extradition Act 1988 (the Act) pertain to the definition and application of the multilateral conventions to which Australia is a signatory (Regulations 1-2). These regulations aim to establish the scope of the conventions and their relevance to extradition procedures. Regulation 3 identifies specific countries that are designated as extradition countries for the purposes of these conventions, which are listed in the schedules attached to each set of regulations. Regulation 4 then applies the Act to these designated countries, subject to the conditions set forth in the respective conventions (Section 11(1)(b)).
The Regulations impose several obligations and requirements on the parties or entities they govern. First, they require that Australia adhere to the terms of the multilateral conventions by permitting extradition of individuals accused of specific offences listed in these conventions. This is contingent upon the existence of an extradition relationship between Australia and the relevant country, which can be based on treaties inherited from the United Kingdom, treaties negotiated since 1970, reciprocity under the Commonwealth Scheme for the Rendition of Fugitive Offenders, or individually agreed relationships (Section 11(1)(b)). Additionally, the Regulations necessitate that the extradition process for convention offences adheres to the conditions and limitations outlined in the respective conventions, ensuring that extradition requests are legitimate and in compliance with international obligations.
Breach of the provisions outlined in the Regulations can lead to civil and criminal consequences. While the specific penalties for non-compliance are not detailed in the explanatory statement, breaches of extradition laws generally can result in significant legal ramifications. Under the Extradition Act, failure to comply with extradition requests or the misuse of extradition processes can lead to criminal charges. The penalties for such offences can include substantial fines and imprisonment, depending on the severity of the breach and the specific provisions of the Act and related conventions. For example, knowingly providing false information in an extradition request could result in criminal charges under Australian law, with potential penalties including imprisonment for up to 10 years and/or hefty fines.
In summary, the “Multilateral Convention” Regulations provide a framework for Australia’s adherence to international conventions related to extradition. These regulations define the scope of the conventions, identify the countries with which Australia has extradition arrangements, and apply the Extradition Act to these countries. They impose obligations to comply with the conventions and to ensure that extradition processes are conducted in accordance with international standards. Breaches of these regulations can lead to serious civil and criminal consequences, emphasizing the importance of adherence to both the Act and the international conventions.