EXPLANATORY STATEMENT
STATUTORY RULES 1988 No 284
SUBJECT: EXTRADITION ACT 1988
“MULTILATERAL CONVENTION” REGULATIONS
Section 55 of the Extradition Act 1988 (‘the Act’) provides for the Governor-General to 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. Subsection 11 (1) (b) provides that the Regulations may make provision to the effect that the Act applies in relation to a specified extradition country subject to other limitations, conditions, exemptions or qualifications.
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.
The proposed “Multilateral Convention” Regulations (the Regulations”) will replace regulations made under the Extradition (Foreign States) Act (EFS Act) which will cease to operate upon the coming into force of the Act. The purpose of the Regulations is to ensure that Australia can fulfill the obligations assumed upon becoming a party to these Conventions which include an obligation to, in certain circumstances, extradite persons accused of offences listed in the Convention.
The Regulations to be made are as follows:
• Extradition (Physical Protection of Nuclear Material) Regulations
• Extradition (Hijacking of Aircraft) Regulations
• Extradition (Internationally Protected Persons) Regulations
• Extradition (Narcotic Drugs) Regulations
• Extradition (Protection of Aircraft) Regulations.
Each set of Regulations contains a Schedule listing States Parties to the relevant Convention being those countries to which the Act will apply so as to permit extradition for convention offences. These schedules do not list every State Party to the Convention. Rather they list those countries with whom Australia has no general extradition relationship and to whom Australia will only extradite for Convention offences.
Where Australia has a general extradition relationship with a country it is already possible to extradite for convention offences. There are four categories of country with whom Australia has such general extradition relationships;
(1) Where Australia’s extradition relations with a country are based on a treaty “inherited” from the United Kingdom of Great Britain, the relevant multilateral convention, postdating the inherited treaty, is deemed to be amended by the multilateral treaty so as to include convention offences as offences for which extradition can be granted.
(2) Where Australia’s extradition relationship is governed by a treaty negotiated since 1970 that treaty will already permit extradition for convention offences.
(3) Where the relationship is based on reciprocity pursuant to the Commonwealth Scheme for the Rendition of Fugitive Offenders Australia can grant extradition for any offence defined as extraditable under our law. All convention offences fit within this category.
(4) Where the relationship is based on reciprocity pursuant to an individually agreed relationship Australia can grant extradition for any offence defined as extraditable under our law. All convention offences fit within this category.
In each case the Regulations follow the same form.
Regulations 1 and 2 will provide for citation of the Regulations and define each relevant convention for the purposes of the Regulations.
Regulations 3 will declare each of the countries listed in the Schedule to each set of Regulations (Schedule 2 in the Extradition (Narcotics Drugs) Regulations) to be an extradition country.
Regulation 4 will apply the Act to the countries listed in the respective Schedules to each sets of Regulations subject to the relevant convention.
Overview
The "Multilateral Convention" Regulations, 1988, were introduced to address the need for Australia to comply with its obligations under various international conventions concerning extradition. Enacted by the Parliament, these regulations ensure that Australia can fulfill its commitments to extradite individuals accused of specific offences, including those related to the physical protection of nuclear material, hijacking of aircraft, protection of internationally protected persons, narcotic drugs, and the protection of aircraft. The objective of these regulations is to align Australia's extradition practices with the conventions it has signed, thereby facilitating the extradition process for listed offences to specified countries. The regulations replace previous extradition regulations under the Extradition (Foreign States) Act, ensuring a consistent and updated legal framework for extradition.
Scope and Application
The Extradition (Multilateral Convention) Regulations, pursuant to section 55 of the Extradition Act 1988, specify the countries to which the Act applies for the extradition of persons accused of offences listed in various multilateral conventions. These regulations, effective from 1 December 1988, replace earlier regulations made under the Extradition (Foreign States) Act and aim to ensure Australia meets its obligations under these conventions. They pertain to specific countries listed in the schedules of the respective regulations, which include Extradition (Physical Protection of Nuclear Material) Regulations, Extradition (Hijacking of Aircraft) Regulations, Extradition (Internationally Protected Persons) Regulations, Extradition (Narcotic Drugs) Regulations, and Extradition (Protection of Aircraft) Regulations. These schedules identify countries to which Australia will extradite for convention offences only, excluding those with whom Australia has a general extradition relationship. The regulations apply to countries where Australia's extradition relations are based on treaties inherited from the United Kingdom, treaties negotiated since 1970, or reciprocity under the Commonwealth Scheme or individually agreed relationships, all of which already permit extradition for convention offences.
Key Provisions
The main operative sections of the Extradition Act 1988 (the Act) focus on the extradition process between Australia and specified countries for certain offences. Section 55 allows the Governor-General to make regulations that are not inconsistent with the Act, covering matters necessary for its implementation. These regulations, termed the "Multilateral Convention" Regulations, specify which countries can be subject to extradition for offences listed in specific Conventions, such as those concerning nuclear material, aircraft hijacking, and narcotics. Each set of Regulations includes a schedule that lists countries with whom Australia has no general extradition relationship, but will extradite for Convention offences.
The Act imposes several obligations and requirements on the parties and entities it governs. Firstly, it mandates that the Regulations must be consistent with the Act and serve to implement the multilateral conventions Australia has joined. Each set of Regulations must clearly list the countries subject to extradition for specific offences, ensuring clarity and specificity in the application of the Act. Additionally, the Act requires that the Regulations take effect on the same day as the Act, as per subsection 4(2) of the Acts Interpretation Act. This ensures a coordinated implementation across different pieces of legislation.
Breach of the provisions set forth in the Act and the Regulations can lead to various legal consequences. Offences under the Act may result in criminal charges, with penalties that can include imprisonment, fines, or both. The maximum penalties depend on the specific offence and the jurisdiction's sentencing guidelines. For example, extraditing a person without proper adherence to the Act could result in criminal charges against the responsible authorities. Civil consequences may also arise, such as damages for wrongful extradition or procedural errors, impacting the reputation and liabilities of the involved parties. Additionally, failure to comply with the Act may lead to diplomatic tensions between Australia and the affected countries, potentially impacting future extradition agreements and international relations.