EXPLANATORY STATEMENT
STATUTORY RULES 1988 NO. 293
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 The EFS Act will be repealed by the Extradition (Repeal and Consequential Provisions) Act 1988 (‘ERC Act’).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 to provide a legislative framework for the extradition of fugitive offenders between Australia and specified countries. The Act was introduced to address the need for a streamlined and legally sound process for the extradition of individuals who have fled to other countries to evade justice. The objective of the Act is to facilitate the surrender of persons accused or convicted of criminal offences, ensuring that they can be brought to trial or serve their sentences in the country where the offence was committed. The Act empowers the Governor-General to make regulations necessary for its implementation, including applying the Act to specified countries in accordance with bilateral extradition treaties. These regulations, referred to as the "Extradition Act 1988 ('Bilateral Treaty') Regulations," were designed to replace and update the previous regulations under the Extradition (Foreign States) Act 1966, aligning Australia's extradition practices with its international commitments under the relevant bilateral treaties.
Scope and Application
The Extradition Act 1988, as supplemented by the "Bilateral Treaty" Regulations, governs the extradition process between Australia and specified countries, namely the 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, and the United States of America. These regulations apply the Act to each country subject to the relevant bilateral extradition treaties, ensuring that the extradition process is conducted in accordance with the agreed terms between Australia and each of these countries. The regulations, which will take effect on the same day as the Act, 1 December 1988, replace the previous regulations under the Extradition (Foreign States) Act 1966 and are designed to align with the bilateral treaties, ensuring that Australia's obligations under multilateral conventions are fulfilled through the treaties themselves. The Extradition (Repeal and Consequential Provisions) Act 1988 will concurrently repeal the Extradition (Foreign States) Act 1966, streamlining the legal framework for extradition with these specified countries.
Key Provisions
The "Extradition (Bilateral Treaty) Regulations 1997" (F1997B01926) establish the framework for applying the Extradition Act 1988 to specified countries through bilateral treaties. Under Section 55 of the Act, the Governor-General is empowered to make these regulations, ensuring they do not contradict the Act and are necessary for its implementation. Clauses 1 and 2 of the Regulations provide the title and definitions relevant to the application of the Act. Clause 3 specifically identifies each country as an "extradition country," while Clause 4 applies the Act to these countries, subject to the terms and conditions of the bilateral extradition treaties. Each relevant treaty is detailed in a Schedule to the Regulations, ensuring that Australia's obligations under multilateral conventions are fulfilled through these bilateral agreements.
These Regulations impose several obligations on the parties involved. Firstly, they require the Act to be applied in a manner consistent with the specific bilateral treaties between Australia and each listed country. This includes adhering to the terms and conditions set out in the treaties, which are reproduced in the Schedules to the Regulations. The parties must ensure that the extradition processes and procedures outlined in these treaties are followed meticulously. Additionally, the Regulations mandate that any extradition requests or processes involving these countries must be conducted in accordance with the bilateral agreements, ensuring that the rights and obligations of both Australia and the relevant country are upheld.
Failure to comply with the provisions of the Extradition Act 1988 and the "Extradition (Bilateral Treaty) Regulations 1997" can lead to various legal consequences. While the specific penalties for breaches are not detailed in the provided text, it is likely that such breaches could result in criminal charges under the Extradition Act, which includes provisions for offences related to non-compliance with extradition processes. Penalties for these offences can range from fines to imprisonment, depending on the severity of the breach and the discretion of the court. Additionally, civil penalties may apply for any harm caused by non-compliance, such as wrongful extradition or violation of an individual's rights. It is essential for all parties to adhere strictly to the Regulations to avoid these potential consequences.