Extradition (Poland) Regulations 1999 1999 No. 203
EXPLANATORY STATEMENT
STATUTORY RULES 1999 No. 203
Issued by the Authority of the Minister for Justice and Customs
Extradition Act 1988
Extradition (Poland) Regulations 1999
Section 55 of the Extradition Act 1988 ("the Act") provides that the Governor-General may make regulations 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 between Australia and the Republic of Poland on Extradition, signed at Canberra on 3 June 1998 ("the Treaty"). In accordance with the Government's policy of greater parliamentary involvement in Australia's treaty-making processes, the Treaty was tabled in Parliament, together with a National Interest Analysis (NIA), on 30 June 1998. The Joint Standing Committee on Treaties tabled its favourable report on the Treaty on 23 March 1999.
On 3 August 1999 Poland notified the Australian Embassy in Warsaw, in accordance with Article 17 of the Treaty, that its domestic constitutional requirements for the Treaty's entry into force had been complied with. Australia's requirement for the Treaty's entry into force was the making of these Regulations. The Treaty enters into force 30 days after the date on which the Contracting States have notified each other in writing that their respective requirements for the entry into force of the Treaty have been complied with. Poland will be notified on 2 November 1999 that Australia's requirements for the Treaty's entry into force have been complied with. Thirty days after that date, that is on 2 December 1999, the Treaty will enter into force. Accordingly, 2 December 1999 is also the commencement date of the Regulations.
Extradition between Australia and Poland has hitherto been governed by the Treaty between Great Britain and the Republic of Poland for the Mutual Extradition of Fugitive Criminals done at Warsaw on 11 January 1932 ("the inherited Treaty"). The inherited Treaty was initially given effect in Australia by a British Order in Council applying the Extradition Acts, 1870 to 1935 (Imp) in the case of Poland (Order in Council 1934 No. 209). Subsequently, the operation of the inherited Treaty in Australian law has been continued by virtue of section 9 of the former Extradition (Foreign States) Act 1966 and subsection 11 (3) of the Extradition Act 1988. On the commencement of these Regulations applying the Extradition Act to Poland by virtue of subsection 11 (1), the Act will cease to apply to Poland by virtue of subsection 11(3). (For the purposes of international law the Treaty provides, in Article 17 paragraph 2, that on its entry into force the inherited Treaty shall cease to be in force between Australia and Poland.)
As with all of Australia's extradition treaties, the extradition treaty with Poland contains all the internationally accepted human rights safeguards which are now a part of modem extradition. Under the Treaty, extradition will not be permitted where the fugitive is sought for or in connection with his or her race, religion, nationality or political opinions or would be tried, sentenced or detained for a political or military law offence. In addition, extradition may be refused where the fugitive could be liable to the death penalty, unless an undertaking is given by the requesting state that the death penalty will not be carried out.
Details of the Regulations are as follows:
Regulation 1 names the Regulations.
Regulation 2 provides that the Regulations commence on 2 December 1999. which is the date on which it is intended the Treaty will enter into force between Australia and Poland.
Regulation 3 declares Poland to be an extradition country.
Regulation 4 provides that the Extradition Act 1988 applies to Poland subject to the Treaty.
Schedule 1 sets out the text of the Treaty.
Overview
The Extradition (Poland) Regulations 1999 were enacted to formalise and implement the Treaty between Australia and the Republic of Poland on Extradition, which was signed on 3 June 1998. This legislation was introduced to address the need for a contemporary extradition framework between the two countries, replacing the outdated Treaty between Great Britain and Poland from 1932. The Regulations were made under the authority of the Minister for Justice and Customs, pursuant to section 55 of the Extradition Act 1988, which allows for the creation of regulations necessary to carry out the Act. The overarching policy objective of these Regulations was to align Australia's extradition practices with modern international standards and to ensure that any extradition processes adhered to human rights safeguards. The Regulations also reflect the government's commitment to greater parliamentary involvement in treaty-making processes, as evidenced by the treaty being tabled in Parliament along with a National Interest Analysis.
Scope and Application
The Extradition (Poland) Regulations 1999 provide the framework for the extradition of individuals between Australia and Poland in accordance with the Treaty between Australia and the Republic of Poland on Extradition. These Regulations apply to any person sought for extradition by Poland under the Treaty, as well as to any Australian authorities responsible for executing or processing extradition requests from Poland. The Regulations operate within the jurisdictional scope of the Extradition Act 1988, which is enacted at the Commonwealth level, thus extending the application of the Act to the international context of extradition with Poland. These Regulations do not include any specific exclusions or exemptions, but they do adhere to the conditions and limitations stipulated in the Treaty, which includes protections against extradition for reasons related to race, religion, nationality, political opinion, or political and military offences, as well as provisions regarding the death penalty. The scope of these Regulations is further defined and potentially extended through subordinate instruments that may be issued under the authority of the Act, ensuring compliance with the Treaty and the broader framework of international extradition law.
Key Provisions
The Extradition (Poland) Regulations 1999, issued under section 55 of the Extradition Act 1988, establish the legal framework for the extradition of fugitives between Australia and Poland. These regulations were made in response to the Treaty between Australia and the Republic of Poland on Extradition, signed in Canberra on 3 June 1998, which seeks to formalise and modernise the process of extraditing individuals wanted for criminal offences in either country. The regulations provide the specific mechanisms through which the Extradition Act applies to Poland, taking into account the terms of the extradition treaty.
Under Regulation 3, Poland is declared as an extradition country, meaning that the Extradition Act 1988 applies to Poland as if it were a part of Australian domestic law, subject to the limitations and conditions set out in the Treaty (Regulation 4). This means that the procedures, safeguards, and obligations outlined in the Extradition Act, such as the requirement for a warrant, the necessity to ensure the fugitive's fair treatment, and the grounds upon which extradition may be refused, are all applicable to cases involving Poland. This integration ensures that the extradition process adheres to both international standards and the specific stipulations of the bilateral treaty.
The regulations impose various obligations on the parties involved in the extradition process, including the need to respect human rights and fundamental freedoms, to ensure that extradition is not sought for political or military offences, and to provide assurances that the death penalty will not be imposed if the fugitive is extradited. The regulations also require that any information provided in support of an extradition request must be admissible under the laws of the requesting country and that the evidence presented must meet certain legal standards to be considered valid.
Failure to comply with the provisions of the Extradition Act or the Extradition (Poland) Regulations 1999 can result in significant legal consequences. Offences under the Extradition Act may lead to criminal charges, with potential penalties including fines and imprisonment, depending on the severity of the breach. For example, providing false information in an extradition request or misusing the extradition process can result in fines of up to $162,000 or imprisonment for up to 10 years. Additionally, any breaches of the regulations or the terms of the extradition treaty can also result in civil liabilities or diplomatic repercussions between Australia and Poland.