EXPLANATORY STATEMENT
Select Legislative Instrument 2009 No. 263
Issued by the authority of the Minister for Home Affairs
Extradition Act 1988
Extradition (Optional Protocol to the Convention on the Rights of the Child on the Sale of
Children, Child Prostitution and Child Pornography) Amendment Regulations 2009 (No. 1)
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.
The Act makes provision for the extradition of persons from Australia to extradition countries and to New Zealand, and facilitates the making of requests for extradition by Australia to other countries. Extradition from Australia can only take place to an extradition country, or to New Zealand, under the special procedures set down in the Act. Section 5 of the Act provides that an ‘extradition country’ is any country (other than New Zealand) that is declared by the regulations to be an extradition country.
Subsection 11(1A) of the Act provides that the regulations may provide that the Act applies in relation to a specified extradition country subject to the limitations, conditions, exceptions or qualifications as are necessary to give effect to a multilateral extradition treaty in relation to the country. Subsection 11(1C) provides that this may be achieved by applying the Act to the country subject to the treaty.
Australia is a party to the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography 2000 (the Optional Protocol). The Extradition (Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography) Regulations 2006 (the Principal Regulations) declared countries listed in Schedule 2 of the Principal Regulations to be ‘extradition countries’ for the purposes of the Act. The countries listed in Schedule 2 were those countries that were a party to the Optional Protocol at the time the Principal Regulations were made. The Schedule did not include a number of countries that had become a party to the Optional Protocol since the Principal Regulations were made.
The Extradition (Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography) Amendment Regulations 2009
(No. 1) (the Regulations) repeal the list of countries in Schedule 2 of the Principal Regulations, and declare that a country, or a colony, territory or protectorate of a country, for which the Convention is in force is an ‘extradition country’ for the purposes of section 5 of the Act and that the Act applies subject to the Optional Protocol for those countries that are a party to the Optional Protocol. By providing that any country that is a party to the Optional Protocol at any given time will be an ‘extradition country’ for the purposes of the Act, these amendments will ensure Australia is able to meet its international obligations under the Optional Protocol.
The Regulations simplify the administrative arrangements so that the Regulations do not have to be amended each time a new country becomes a party to the Optional Protocol. The Regulations include a note referring the reader to the United Nations website which contains a current list of countries for which the Optional Protocol is in force.
The approach of referring in regulations to foreign countries that are party to a Convention or Protocol without listing those countries has been adopted in other regulations. Subsection 13(3) of the Legislative Instruments Act 2003 allows things to be declared in regulations by referring to a class of things.
Extradition under the Regulations operates in accordance with the Act, subject to the Optional Protocol. The Act applies the modern ‘no evidence’ standard for documentation provided in support of any extradition request. In accordance with this evidentiary standard, countries are not required to provide evidence sufficient to establish a prima facie case that the person committed the offence.
Extradition requests made pursuant to the Regulations are subject to the various safeguards set out in the Act. For example, extradition will not be permitted where the person is sought for or in connection with his or her race, religion, nationality or political opinions or is to be tried, sentenced or detained for a political or military offence. Extradition must be refused where the offence for which the person requested attracts the death penalty, unless an undertaking is given that the death penalty will not be imposed or, if imposed, will not be carried out. Extradition must also be refused where the person could be subjected to torture. In addition, the Attorney-General retains a broad discretion to refuse an extradition request by a country.
Consultation was unnecessary for this legislative instrument as this instrument does not substantially alter existing arrangements and has no direct or indirect effect on business.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulations commenced on the day after they were registered with the Federal Register of Legislative Instruments.
Overview
The Extradition (Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography) Amendment Regulations 2009 (No. 1) were enacted to ensure Australia's ability to meet its international obligations under the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography. These regulations amend the Extradition Act 1988 by simplifying the administrative arrangements for determining which countries are designated as 'extradition countries'. Instead of listing specific countries in the regulations, the new approach refers to any country that is a party to the Optional Protocol, thus eliminating the need to update the regulations each time a new country joins the treaty. This change aims to streamline the extradition process and ensure it aligns with Australia's commitments under the Optional Protocol. The Attorney-General retains broad discretion to refuse extradition requests, and the process adheres to the modern 'no evidence' standard for documentation, ensuring various safeguards are in place to protect individuals from being extradited under unjust circumstances.
Scope and Application
The Extradition (Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography) Amendment Regulations 2009 (No. 1) amend the Extradition Act 1988 by adjusting the scope of countries that are considered 'extradition countries' for the purposes of the Act. This change ensures that Australia can meet its international obligations under the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography. The amendment simplifies administrative arrangements by establishing that any country that is a party to the Optional Protocol is automatically considered an 'extradition country', without the need to amend the regulations each time a new country joins the protocol. The Act applies to individuals who are subject to extradition requests from or to Australia, and it facilitates extradition to and from extradition countries and New Zealand, as defined by the regulations. Extradition under the Act adheres to the 'no evidence' standard and is subject to various safeguards, including the prohibition of extradition for political or military offences and refusal of requests where the death penalty is applicable or torture is likely. The Regulations came into effect on the day after they were registered with the Federal Register of Legislative Instruments and are considered a legislative instrument under the Legislative Instruments Act 2003.
Key Provisions
The main sections of the Extradition (Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography) Amendment Regulations 2009 (No. 1) (the Regulations) pertain to the amendment of the Extradition Act 1988 (the Act) to align it with the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography 2000 (the Optional Protocol). These amendments are made under the authority granted by section 55 of the Act, which allows for the making of regulations necessary to carry out the Act. Section 5 of the Act defines an ‘extradition country’ as any country declared by regulations to be such, and section 11(1A) allows for the Act to be applied to a specified extradition country subject to any necessary limitations or conditions to give effect to a multilateral extradition treaty. The Regulations amend the previous list of countries in Schedule 2 of the Extradition (Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography) Regulations 2006 (the Principal Regulations) by removing it and instead declaring that any country which is a party to the Optional Protocol is an ‘extradition country’ for the purposes of section 5 of the Act.
These Regulations impose obligations on Australia to ensure compliance with its international obligations under the Optional Protocol. By declaring that any country party to the Optional Protocol is an extradition country, the Regulations enable Australia to meet its commitments under the treaty without the need to amend the Regulations each time a new country becomes a party. The Act’s procedures and safeguards for extradition are applied to these countries, including the ‘no evidence’ standard for documentation and various safeguards such as the prohibition on extraditing a person for political or military offences or where the death penalty may be imposed. Additionally, the Attorney-General retains a broad discretion to refuse extradition requests.
The Regulations impose obligations on parties and entities involved in extradition proceedings. These obligations include adhering to the evidentiary standards set by the Act, ensuring that extradition requests do not violate the safeguards outlined, and complying with the limitations and conditions specified by the regulations. Extradition countries must also ensure that their extradition requests are consistent with the Optional Protocol and the Act’s requirements.
Any breaches of the Regulations or the Act may result in legal consequences. Under the Extradition Act, there are potential civil and criminal penalties for non-compliance with extradition procedures, including the refusal of extradition requests that do not meet the statutory requirements. The maximum penalties for breaches of the Act can include fines and imprisonment, depending on the nature and severity of the offence. Additionally, any failure to comply with the Optional Protocol may result in diplomatic repercussions or breaches of international obligations, potentially affecting Australia’s standing in international forums.