EXPLANATORY STATEMENT
STATUTORY RULES 1987 NO. 328
SUBJECT: EXTRADITION (FOREIGN STATES) ACT 1966
EXTRADITION (KINGDOM OF THE NETHERLANDS) 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 the Netherlands made in 1898.
A modern extradition treaty between Australia and the Netherlands was signed on 5 September 1985. This treaty, terminates the treaty of 1898 [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 at least 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 17 of the 1985 treaty provides for the treaty to enter into force on the first day of the second month following the date on which Australia and the Netherlands have notified each other that their respective legal requirements for entry into force have been complied with. Australia’s requirements for entry into force are the making of the Extradition (Kingdom of the Netherlands) Regulations.
Australia and the Netherlands have agreed to exchange diplomatic notes on 18 December 1987 in accordance with Article 17. In accordance with that Article of the Treaty-Regulation 2 of the Regulations provides that the Regulations come into operation on 1 February 1988 being the first day of the second month following the date on which notifications will be exchanged.
Overview
The Extradition (Foreign States) Act 1966, enacted by the Australian Parliament, was introduced to establish a legislative framework for the extradition of fugitives between Australia and foreign states. The Act provides a mechanism for Australia to surrender individuals who have committed extraditable offences in another country and are found within its jurisdiction, thereby facilitating international cooperation in criminal matters. The Extradition (Kingdom of the Netherlands) Regulations 1987 were made to give effect to the modern extradition treaty between Australia and the Kingdom of the Netherlands, which succeeded an older treaty from 1898. These regulations outline the specific provisions necessary to implement the terms of the 1985 treaty, including defining an extradition offence and modifying the evidentiary requirements for extradition. The policy objective of these regulations is to ensure that the extradition process between Australia and the Netherlands is conducted in a manner consistent with the updated treaty, thereby enhancing the efficiency and effectiveness of international law enforcement cooperation.
Scope and Application
The Extradition (Foreign States) Act 1966 applies to individuals who are sought for extradition from Australia to foreign states, and vice versa, where there is an applicable extradition treaty in place. The Act is designed to facilitate the process of extraditing individuals who are wanted for criminal offences in another jurisdiction, thereby ensuring that justice can be served across international borders. The Extradition (Kingdom of the Netherlands) Regulations 1987 specifically pertain to the modern extradition treaty between Australia and the Netherlands, which came into force on 1 February 1988. These regulations outline the necessary procedures and conditions under which extradition can occur between the two countries, and they ensure that the Act's provisions are effectively implemented in relation to the Netherlands. The Act and its accompanying regulations apply to the Commonwealth of Australia and the Kingdom of the Netherlands, governing the extradition of individuals between these jurisdictions. The scope of the Act extends to any offence that is considered an extradition offence, defined as an offence punishable by imprisonment or other deprivation of liberty for a period of at least one year or by a more severe penalty under the laws of both parties to the treaty.
Key Provisions
The main operative sections of the Extradition (Kingdom of the Netherlands) Regulations 1987 (C2004L04593) focus on the implementation of the extradition treaty between Australia and the Netherlands. Section 2 of the Regulations outlines the coming into force of the treaty, which is set to occur on 1 February 1988, as specified by Article 17 of the treaty. This date is the first day of the second month following the exchange of diplomatic notes on 18 December 1987, as required by the treaty. Regulation 2 ensures that the Act applies to the Netherlands in accordance with the provisions of the 1985 treaty, which replaced the 1898 treaty.
The Extradition (Kingdom of the Netherlands) Regulations 1987 impose several obligations and requirements on the parties involved. These include the establishment of a formal extradition process based on the 1985 treaty, which defines an extradition offence as one that is punishable by imprisonment for at least one year or by a more severe penalty under the laws of both countries. Additionally, the Regulations necessitate the replacement of the'sufficient evidence' requirement with a detailed statement of the acts or omissions alleged against the fugitive. This ensures a more precise and legally sound basis for extradition requests. The Regulations also mandate the exchange of diplomatic notes as stipulated in Article 17 of the treaty to formally activate the treaty's provisions.
There are potential consequences for breaches of the Extradition (Kingdom of the Netherlands) Regulations 1987. While the specific offences, penalties, or civil/criminal consequences are not detailed in the provided explanatory statement, it is understood that any failure to comply with the treaty's provisions or the Regulations could result in legal ramifications. Such breaches could potentially lead to the refusal of extradition requests, diplomatic tensions between Australia and the Netherlands, or other legal actions as prescribed by the relevant laws of the respective countries. The exact penalties would depend on the nature of the breach and the specific laws applicable at the time.