EXPLANATORY STATEMENT
Select Legislative Instrument 2006 No. 290
Issued by the authority of the Minister for Justice and Customs
Extradition Act 1988
Extradition (Malaysia) Regulations 2006
Section 55 of the Extradition Act 1988 (the Act) provides in part that the Governor-General may make regulations, not inconsistent with the Act, prescribing all 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. Paragraph 11(1)(a) of the Act provides that regulations may apply the Act to a specified extradition country subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to a bilateral extradition treaty between Australia and that country, being a treaty a copy of which is set out in the regulations.
The Regulations give effect in Australian domestic law to the Treaty on Extradition between the Government of Australia and the Government of Malaysia, signed at Putrajaya on
15 November 2005 and the Exchange of Notes between Australia and Malaysia on the Treaty on Extradition, signed at Kuala Lumpur on 7 December 2005 (the Treaty).
The Joint Standing Committee on Treaties recommended binding treaty action be taken in relation to the Treaty in Report 79, tabled on 19 October 2006.
As with all of Australia’s extradition treaties, the extradition treaty with Malaysia contains a range of internationally accepted human rights safeguards. Under the Treaty, extradition will not be granted where the request is for a political offence or a purely military offence or the request has been made for the purpose of prosecuting or punishing a person on account of that person’s race, religion, nationality or political opinions.
The Exchange of Notes sets out the agreement between the parties that Article 3(2) of the Treaty requires that Malaysia consult with Australia before making an extradition request for a person wanted for an offence that carries the death penalty. This reflects Malaysia’s understanding that paragraph 22(3)(c) of the Act prohibits Australia from extraditing a person for an offence that carries the death penalty in the absence of an undertaking from the country requesting extradition that the death penalty will not be imposed or will not be carried out.
The Regulations commence the day the Treaty comes into force for Australia. The Treaty will come into force for Australia thirty days after the date on which the Parties have notified each other in writing that their respective requirements for the entry into force of the Treaty have been complied with.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Regulation 1 names the Regulations.
Regulation 2 provides that the Regulations commence on the day the Treaty will enter into force.
Regulation 3 defines Act to mean the Extradition Act 1988.
Regulation 4 declares Malaysia to be an extradition country.
Regulation 5 provides that the Extradition Act 1988 applies to Malaysia subject to the Treaty and Exchange of Notes.
Schedule 1 contains the text of the Treaty.
Schedule 2 contains the text of the Exchange of Notes.
Overview
The Extradition (Malaysia) Regulations 2006 were enacted to implement the Treaty on Extradition between Australia and Malaysia, which was signed on 15 November 2005. These Regulations were made under the authority of the Minister for Justice and Customs in accordance with section 55 of the Extradition Act 1988, which allows for the creation of regulations necessary to carry out the Act. The policy objective of these Regulations is to formalise the extradition process between the two countries while ensuring adherence to internationally accepted human rights standards, including the prohibition of extradition for political offences, purely military offences, or cases involving racial, religious, or political discrimination. Furthermore, the Regulations incorporate an agreement that Malaysia must consult with Australia before making an extradition request for an offence that carries the death penalty, aligning with Australia's stance against extraditing individuals for offences that could result in capital punishment without assurances that the death penalty will not be imposed or executed. The Regulations are designed to take effect on the day the Treaty enters into force for Australia.
Scope and Application
The Extradition (Malaysia) Regulations 2006 apply the Extradition Act 1988 to Malaysia in accordance with the Treaty on Extradition signed between Australia and Malaysia on 15 November 2005 and the Exchange of Notes signed on 7 December 2005. These Regulations were made to facilitate the extradition of individuals between the two countries for criminal offences, subject to certain conditions and limitations specified in the Treaty and Exchange of Notes. The Regulations cover any person who is wanted for extradition from Malaysia to Australia or vice versa for an offence that is covered under the Treaty. The Regulations have a national reach within Australia and apply to any conduct or transactions involving the extradition of individuals in accordance with the Treaty. The Regulations do not apply to political offences, purely military offences, or offences where the death penalty may be imposed. The Regulations also incorporate human rights safeguards as part of Australia's extradition treaties. The Regulations commence on the day the Treaty enters into force, which will be thirty days after both parties have notified each other in writing that their respective requirements for the entry into force of the Treaty have been complied with.
Key Provisions
The Extradition (Malaysia) Regulations 2006, made under section 55 of the Extradition Act 1988, provide the framework for applying the Act in the context of extradition between Australia and Malaysia. Regulation 1 identifies the document as the Extradition (Malaysia) Regulations 2006, while Regulation 2 specifies that these Regulations will commence on the day the Treaty on Extradition between Australia and Malaysia enters into force. Regulation 3 defines "Act" to mean the Extradition Act 1988, ensuring clarity in the application of the Act to the provisions of the Regulations. Regulation 4 declares Malaysia to be an extradition country, thereby making it eligible for extradition under Australian law, subject to the terms of the Treaty. Regulation 5 explicitly states that the Extradition Act 1988 will apply to Malaysia, but only in accordance with the Treaty and the Exchange of Notes.
The Regulations impose several obligations on parties involved in extradition processes between Australia and Malaysia. The most fundamental obligation is that extradition will not be granted if the requested person might be prosecuted or punished on account of their race, religion, nationality, or political opinions, or if the offence for which extradition is sought is a political or purely military offence. Additionally, Malaysia must consult with Australia before making an extradition request for a person wanted for an offence that carries the death penalty, reflecting Australia's prohibition on extraditing individuals for offences that may result in the death penalty unless certain conditions are met. These obligations ensure that extradition practices between the two countries adhere to internationally accepted human rights standards.
Breaching the obligations set forth in the Extradition (Malaysia) Regulations 2006 can lead to various legal consequences. While the Explanatory Statement does not detail specific offences or penalties within the Regulations themselves, violations of the Extradition Act 1988 or related international treaties could result in both civil and criminal penalties. Under the Extradition Act, improper actions taken in the extradition process might be subject to judicial review, and individuals found to be in breach of the Act could face criminal charges. The Act also provides for penalties in cases where there is a failure to comply with the requirements for extradition, which could include fines or imprisonment, depending on the nature and severity of the breach.