EXPLANATORY STATEMENT
STATUTORY RULES 1988 NO. 294
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 The EFS Act will be repealed by the Extradition (Repeal and Consequential Provisions) Act 1988 (‘ERC Act’).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 comprehensive legal framework for the extradition of fugitive offenders between Australia and other jurisdictions. This Act was designed to address the need for a modernised and streamlined process for the extradition of individuals who have fled to other countries to avoid facing criminal charges in Australia. The Act was introduced by the Parliament of Australia with the policy objective of ensuring that Australia can effectively cooperate with other countries in the pursuit of justice and the enforcement of criminal laws. The "Extradition Act 1988" regulations, including those for bilateral treaties, were made to align the Act with existing extradition treaties and to replace the outdated provisions of the "Extradition (Foreign States) Act 1966". These regulations ensure that the Act is applied to specified countries in accordance with the terms and conditions of the relevant bilateral extradition treaties, thereby facilitating the extradition process while upholding Australia's international obligations.
Scope and Application
The Extradition Act 1988, supported by the Statutory Rules 1988 No. 294, allows the Governor-General to make regulations that apply the Act to specified extradition countries to facilitate extradition based on bilateral treaties. These regulations, which take effect from 1 December 1988, replace those under the Extradition (Foreign States) Act 1966 and are tailored to each extradition country's bilateral treaty. The regulations apply to 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, each subject to their respective extradition treaties. These treaties are incorporated as schedules to the regulations, ensuring that Australia's obligations under multilateral conventions are met through these bilateral arrangements. The Extradition (Repeal and Consequential Provisions) Act 1988 will repeal the Extradition (Foreign States) Act 1966 and will come into effect concurrently with the Extradition Act 1988.
Key Provisions
The main operative sections of the Extradition Act 1988, as amended by the proposed regulations, establish the framework for extradition processes with specified countries (Section 4). Clause 3 of the Regulations designates each country listed as an "extradition country," which is a crucial term under the Act (Section 3). Clause 4 applies the provisions of the Act to these countries subject to the specific terms and conditions of the bilateral extradition treaties between Australia and each respective country (Section 4). Each treaty is included as a Schedule to the Regulations, ensuring the Act’s application is governed by the specific stipulations of these bilateral agreements.
The obligations imposed by the Act on the parties involved are stringent and multifaceted. Firstly, the Act requires that any extradition requests must be made through official channels and must comply with the terms of the bilateral treaties (Section 11(1)(a)). Both the requesting and requested countries are mandated to follow due process, ensuring that any extradition requests are justified and based on credible evidence. Furthermore, the Act requires the authorities in Australia to consider the human rights implications of any extradition request, ensuring that the extradited individual will not be subjected to torture or inhumane treatment (Section 12). The obligations also include providing legal representation and ensuring that the individual’s right to a fair trial is upheld.
Breaches of the Act or its regulations can lead to severe consequences. Any act of non-compliance, such as the failure to follow due process or the mishandling of an extradition request, may result in legal action. Under the Extradition Act 1988, significant penalties can be imposed for misconduct by officials involved in the extradition process. For instance, Section 18 outlines penalties for officials who act outside their authority, which can include fines and imprisonment. Additionally, if an individual is extradited in violation of the Act, the courts may deem the extradition unlawful, leading to potential civil suits against the responsible officials. The maximum penalties for such offences, as stipulated in the Act, can reach up to seven years imprisonment for serious violations, reflecting the gravity of non-compliance.