EXPLANATORY STATEMENT
STATUTORY RULES 1988 NO. 288
SUBJECT: EXTRADITION ACT 1988
“BILATERAL TREATY” 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)(a) provides that regulations may apply the Act to a specified extradition country to give effect to a bilateral extradition treaty.
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.
Each set of Regulations follows the same form and will apply the Act to the following countries subject, in each case, to the relevant extradition treaty:
Republic of Austria
Kingdom of Belgium
Republic of Finland
State of Israel
Republic of Italy
Grand Duchy of Luxembourg
Kingdom of the Netherlands
Norway
Republic of Portugal
Kingdom of Spain
Sweden
United States of America
The proposed Regulations will replace regulations made under the Extradition (Foreign States) Act 1966 (‘EFS Act’) and differ only in that the Act is applied to the country concerned subject only to the bilateral treaty. The EFS Act will be repealed by the Extradition (Repeal and Consequential Provisions) Act 1988 (‘ERC Act’). The ERC Act will come into operation on the same day as the Extradition Act 1988 comes into the operation. References in the previous regulations to multilateral conventions dealing, inter alia, with extradition
are not included in these regulations because each of the treaties given domestic legal effect to by these regulations will, of its own force, permit extradition for multilateral convention offences and will therefore ensure that Australia’s obligations under the multilateral conventions, qua the listed countries, are capable of being fulfilled.
Details of the proposed Regulations in each case are as follows.
Clauses 1 and 2 will provide for the citation of the Regulations and definitions for the Regulations.
Clause 3 will declare, in each case, the relevant country to be an extradition country for the purposes of the Act.
Clause 4 will apply the Act in each case to the relevant country subject to the terms and conditions of bilateral treaties between Australia and each relevant country. In each case the relevant treaty is reproduced as a Schedule to the Regulations.
Overview
The Extradition Act 1988 was enacted by the Commonwealth Parliament to address the legal framework governing the extradition of fugitive offenders between Australia and other countries. This legislation sought to replace the outdated Extradition (Foreign States) Act 1966 and ensure that Australia's extradition practices align with contemporary international obligations and treaties. The Act empowers the Governor-General to make regulations necessary for its operation, including applying the Act to specified extradition countries in accordance with bilateral extradition treaties. The policy objective of the Act is to facilitate the extradition process with countries that have bilateral treaties with Australia, ensuring efficient and lawful transfer of individuals wanted for criminal proceedings or serving sentences in participating countries. The "Bilateral Treaty" Regulations, made under the authority of the Act, specify the countries to which the Act applies, subject to the relevant extradition treaties, and will take effect concurrently with the Act's commencement on 1 December 1988.
Scope and Application
The Extradition Act 1988 applies to the extradition of persons from Australia to specified countries, with the application being subject to the terms and conditions of bilateral extradition treaties between Australia and each of the specified countries. The Act covers individuals who are wanted in one of these countries for criminal offences and who are found within Australian jurisdiction. The countries to which the Act applies include the Republic of Austria, the Kingdom of Belgium, the Republic of Finland, the State of Israel, the Republic of Italy, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, Norway, the Republic of Portugal, the Kingdom of Spain, Sweden, and the United States of America. These countries are identified as extradition countries under the Act, and their inclusion is contingent on the existence of a bilateral extradition treaty between Australia and each respective country. The Act does not extend to multilateral conventions unless they are specifically addressed in the bilateral treaties. The regulations implementing these applications are made pursuant to Section 55 of the Extradition Act 1988 and are scheduled to come into effect on the same day as the Act, which is 1 December 1988. These regulations replace previous regulations made under the Extradition (Foreign States) Act 1966 and are intended to streamline the application of the Act by aligning it solely with bilateral treaties. The Extradition (Repeal and Consequential Provisions) Act 1988 will repeal the Extradition (Foreign States) Act 1966 upon the commencement of the Extradition Act 1988.
Key Provisions
The Extradition Act 1988 ('the Act') establishes a framework for the extradition of fugitives between Australia and specified countries. Section 55 of the Act allows the Governor-General to make regulations that apply the Act to specified countries, subject to bilateral extradition treaties. These regulations, known as the “Bilateral Treaty” Regulations, will apply the Act to countries such as the Republic of Austria, the Kingdom of Belgium, and the United States of America, among others, each subject to the respective bilateral extradition treaties. The regulations will come into effect on 1 December 1988, the same day the Act itself commences operation.
The obligations and requirements imposed by these regulations are primarily centred around the enforcement of bilateral extradition treaties. Clause 3 of the regulations declares each specified country as an 'extradition country' under the Act, while Clause 4 applies the Act to these countries, subject to the terms and conditions of the respective treaties. Each treaty is included as a Schedule to the regulations, ensuring that the legal obligations and procedures outlined in the bilateral agreements are integrated into Australian law. The regulations are designed to facilitate the extradition process in accordance with the specific provisions of the treaties, ensuring that both Australia and the relevant country can efficiently and legally manage extradition requests.
In terms of compliance and enforcement, breaches of the obligations set out in these regulations could lead to significant consequences. While the Act itself does not specify particular offences or penalties, the failure to adhere to the terms of the bilateral treaties could result in diplomatic tensions and potential legal challenges in both Australian and foreign courts. Furthermore, the integrity of the extradition process could be undermined, affecting the ability to successfully extradite fugitives and potentially leading to legal repercussions for the involved parties. The precise consequences would depend on the specific terms of the bilateral treaties and any applicable national and international laws.