EXPLANATORY STATEMENT
STATUTORY RULES 1988 No. 304
SUBJECT: EXTRADITION ACT 1988
EXTRADITION (IRELAND) 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)(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, exceptions 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 Extradition (Ireland) Regulations (the Regulations) apply the Act to Ireland. Australia does not have a bilateral extradition treaty with Ireland but has agreed to grant extradition on the basis of reciprocity. The regulations continue the application of Australia’s extradition laws to the Ireland which, until the Act comes into operation, is governed by regulations made under the Extradition (Foreign States) Act 1966.
Details of the proposed regulations are as follows:
Clauses 1 and 2: are citation and interpretation provisions.
Clause 3: declares Ireland to be an extradition country.
Clause 4: applies the Act to Ireland subject to the limitations, conditions, exceptions or qualifications specified in regulation 5.
Clause 5: Subclause (1) provides that a person is not liable to be surrendered to Ireland if, had the acts or omissions constituting the offence been committed in Australia, the prosecution would be barred by lapse of time, or where the act or omission constituting the offence was committed within the jurisdiction of Australia.
Subclause (2) provides that the Attorney-General is precluded from issuing a surrender warrant if the person sought could be tried by an extraordinary or ad hoc tribunal or court in the requesting country.
Subclause (3) provides that the conditions in subclauses (1) and (2) apply in addition to any conditions imposed on the issue of warrants of surrender under the Act.
Subclause (4) gives the Attorney-General a discretion to decline to surrender a person to Ireland if the person is an Australian citizen or if the Attorney-General considers that humanitarian considerations should preclude surrender.
Overview
The Extradition (Ireland) Regulations 1988 were introduced to provide a legal framework for the extradition of individuals between Australia and Ireland, areas where no formal bilateral treaty exists but where Australia agrees to extradite on the basis of reciprocity. Enacted under the Extradition Act 1988, the primary legislative objective of these regulations is to ensure the smooth application of Australia’s extradition laws to Ireland. The regulations were developed in response to the need for a structured approach to extradition with Ireland, which until the Act came into force, was governed by the Extradition (Foreign States) Act 1966. The policy objective of these regulations is to establish clear conditions and limitations for extradition, including protections for Australian citizens and consideration of humanitarian factors in extradition decisions.
Scope and Application
The Extradition (Ireland) Regulations, made under the Extradition Act 1988, apply the Act to Ireland, thereby extending Australia's extradition laws to this country. Ireland is declared an extradition country, and the Act applies to it with certain limitations, conditions, exceptions, or qualifications. These regulations are particularly significant as Australia and Ireland do not have a formal bilateral extradition treaty but have agreed to grant extradition on the basis of reciprocity. Clause 5 of the Regulations outlines specific conditions under which extradition may be barred or declined. For instance, a person cannot be surrendered if, had the offence been committed in Australia, the prosecution would be barred by lapse of time, or if the offence was committed within Australian jurisdiction. Furthermore, the Attorney-General is precluded from issuing a surrender warrant if the person sought could be tried by an extraordinary or ad hoc tribunal or court in Ireland. The Attorney-General also has the discretion to decline surrender if the person is an Australian citizen or if humanitarian considerations should preclude surrender. These conditions supplement any other conditions imposed on the issue of warrants of surrender under the Act. The Regulations take effect on the same day as the Extradition Act 1988 comes into operation, as recommended by Executive Council Minute no. 102.
Key Provisions
The Extradition (Ireland) Regulations 1988, pursuant to Section 55 of the Extradition Act 1988, establish the framework for the extradition of individuals between Australia and Ireland. These regulations, as referenced in clauses 3 to 5, declare Ireland as an extradition country and apply the Extradition Act 1988 to Ireland, subject to specific limitations and conditions (Regulations 3 and 4). The key provisions, notably in Regulation 5, detail circumstances under which a person may not be surrendered to Ireland, such as if the offence was committed within Australia's jurisdiction or if the prosecution would be barred by lapse of time in Australia (Regulation 5(1)). Furthermore, Regulation 5(2) stipulates that a surrender warrant cannot be issued if the person sought could be tried by an extraordinary or ad hoc tribunal or court in Ireland.
Under these regulations, the Attorney-General is vested with significant discretion, including the authority to decline a surrender request if the individual is an Australian citizen or if humanitarian considerations dictate against it (Regulation 5(4)). These obligations require careful assessment and adherence to the conditions specified, ensuring that extradition requests are handled in accordance with Australian law and international obligations.
Violations of the Extradition Act 1988 and its regulations may result in legal consequences. The Act includes provisions for offences and penalties, although specific details regarding maximum penalties are not provided in the explanatory statement. Generally, breaches of extradition laws may lead to civil or criminal penalties, reflecting the seriousness with which the Act treats compliance. The implications of non-compliance can be significant, potentially involving legal actions or sanctions against those who fail to adhere to the Act's requirements.