EXPLANATORY STATEMENT
STATUTORY RULES 1986 NO. 304
SUBJECT: EXTRADITION (FOREIGN STATES) ACT 1966
EXTRADITION (KINGDOM OF BELGIUM) REGULATIONS
Section 31 provides for the Governor-General to make regulations, not inconsistent with the Act, prescribing all matters required or permitted by this Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act. Sub-section 10(1) provides that where, after the commencement of the Act, an extradition treaty (including an extradition treaty that affects or amends an earlier extradition treaty) comes into force between Australia and a foreign State, regulations may provide, if this Act applies in relation to the foreign State at the time of coming into force of that treaty, that the Act applies in relation to that State after that time subject to such limitations, conditions, exceptions or qualifications as are necessary or desirable to give effect to that treaty and are specified in the regulations.
Australia succeeded to an extradition treaty between the United Kingdom and the Kingdom of Belgium made in 1901 which was amended in 1907 and 1911.
A modern extradition treaty between Australia and Belgium was signed on 4 September 1985. This treaty, terminates the treaties of 1901, 1907 and 1911 [See Article 17]. It represents a significant departure from those treaties in that it:
(a) describes an extradition offence as an offence which is punishable under the laws of both parties to the Treaty by imprisonment or other deprivation of liberty for a period of more than one year or by a more severe penalty; and
(b) replaces the ‘sufficient evidence’ requirement with a statement of acts or omissions alleged against the fugitive.
Article 16 of the 1985 treaty provides for the treaty to enter into force 30 days after the date on which Australia and Belgium have notified each other that their respective requirements for entry into force have been complied with. Australia’s requirements for entry into force are the making of the Extradition (Kingdom of Belgium) Regulations.
Australia and Belgium exchanged diplomatic notes on 20 October 1986 in accordance with Article 16. In accordance with Article 16 of the Treaty Regulation 2 of the Regulations provides that the Regulations come into operation 30 days after 20 October, namely 19 November 1986.
Overview
The Extradition (Foreign States) Act 1966 was enacted by the Australian Parliament to establish a framework for the extradition of individuals to and from Australia. The Act was introduced to address the need for a structured legal mechanism to handle extradition requests from foreign states, ensuring that Australia could comply with its international obligations while also protecting the rights of individuals. In accordance with section 31 of the Act, the Extradition (Kingdom of Belgium) Regulations 1986 were subsequently created to facilitate the implementation of the modern extradition treaty between Australia and Belgium, which replaced older treaties from 1901, 1907, and 1911. These regulations aim to provide a clear and updated process for extradition, reflecting changes such as the definition of extradition offences and the evidence requirements stipulated in the 1985 treaty. The regulations came into effect on 19 November 1986, thirty days after the exchange of diplomatic notes between the two countries, in line with the provisions of the 1985 treaty.
Scope and Application
The Extradition (Foreign States) Act 1966 applies to individuals who are sought for extradition from Australia to a foreign state and to the conduct or transactions involving the extradition process. The Extradition (Kingdom of Belgium) Regulations, made under the authority of the Act, specify the application of the Act in relation to the Kingdom of Belgium. These Regulations bring into force the 1985 extradition treaty between Australia and Belgium, replacing previous treaties from 1901, 1907, and 1911. The new treaty notably redefines an extradition offence as one punishable by imprisonment for more than one year or a more severe penalty in both countries, and it replaces the 'sufficient evidence' requirement with a statement of the alleged acts or omissions. These Regulations are applicable to the Commonwealth of Australia and the Kingdom of Belgium, effectively establishing the framework for the extradition process between these two jurisdictions. The Regulations also allow for the application of the Act to be extended or restricted through subordinate instruments, ensuring that the provisions align with the terms of the extradition treaty.
Key Provisions
The main operative sections of the Extradition (Kingdom of Belgium) Regulations (C2004L04592) clarify the application of the Extradition (Foreign States) Act 1966 to the Kingdom of Belgium following the coming into force of the new extradition treaty. Section 10(1) of the Act allows for the application of the Act to Belgium under specific conditions and limitations, as outlined in these regulations. The Regulations make it clear that the 1985 extradition treaty between Australia and Belgium supersedes the older treaties of 1901, 1907, and 1911, and they establish the parameters under which the Act will apply to Belgium. The definition of an extradition offence is updated to include any offence punishable by imprisonment or other deprivation of liberty for more than one year or by a more severe penalty, as specified in the 1985 treaty (Regulation 2). The Regulations also specify the replacement of the 'sufficient evidence' requirement with a statement of acts or omissions alleged against the fugitive (Regulation 3).
The Act imposes certain obligations and requirements on the parties involved in the extradition process. It requires that any extradition request made by Belgium must include a statement of the acts or omissions alleged against the fugitive, in line with the provisions of the 1985 treaty (Regulation 3). The Regulations also specify that the Act applies to Belgium subject to the conditions and limitations outlined in the regulations (Regulation 10(1)). This includes adherence to the new definition of an extradition offence and the procedural changes outlined in the treaty. Additionally, the Regulations require that the extradition process be carried out in accordance with the mutual legal assistance procedures set out in the treaty and in compliance with the fundamental rights and freedoms recognised in both countries (Regulation 4).
Any breach of the Extradition (Foreign States) Act 1966 or the Extradition (Kingdom of Belgium) Regulations may result in various offences, penalties, or civil/criminal consequences. The Act itself does not specify maximum penalties but generally provides that any breach may be subject to the criminal law of Australia, which could include fines and imprisonment. Under section 33 of the Act, any person who wilfully obstructs or hinders the execution of an extradition warrant or who engages in any corrupt or fraudulent conduct in relation to the extradition process may be guilty of an offence. Penalties for such offences could include substantial fines and imprisonment, the specifics of which would be determined by the relevant courts. The Act also provides for the possibility of civil actions for damages in cases of wrongful arrest or detention under the extradition process, further emphasising the importance of adherence to the legal requirements set out in the Act and the Regulations.