EXPLANATORY STATEMENT
STATUTORY RULES 1988 No. 286
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 were enacted under the Extradition Act 1988 to ensure that Australia can fulfil the obligations it has assumed by becoming a party to various multilateral conventions, particularly in relation to the extradition of persons accused of offences listed in these conventions. The Extradition Act 1988, enacted by the Parliament of Australia, establishes a framework for the extradition of fugitive offenders and includes provisions for the Governor-General to make regulations to prescribe matters necessary for implementing the Act. The policy objective behind these Regulations is to facilitate the extradition process for offences specified in the multilateral conventions, thereby enhancing international cooperation in the fight against crimes such as hijacking, drug trafficking, and terrorism. These Regulations replace the earlier extradition regulations under the Extradition (Foreign States) Act, ensuring a streamlined approach to extradition aligned with Australia's international commitments.
Scope and Application
The "Multilateral Convention" Regulations, made under the Extradition Act 1988, apply to the specified extradition countries listed in the schedules of each regulation set, including 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 regulations permit the extradition of persons accused of offences listed in the respective conventions, such as nuclear material protection, aircraft hijacking, and narcotics trafficking. The regulations cover entities and individuals involved in such activities and apply to those countries with whom Australia has no general extradition relationship, and only for convention offences. The application of these regulations extends to facilitating Australia's obligations under the multilateral conventions it has ratified. The regulations also cater to countries with which Australia has general extradition relationships by deeming convention offences as extraditable under existing treaties or reciprocity agreements. The regulations come into force on 1 December 1988, replacing previous regulations under the Extradition (Foreign States) Act. Any exclusions, exemptions, or thresholds are detailed within the specific regulations and schedules, ensuring compliance with the obligations set out in the conventions.
Key Provisions
The primary operative sections of the "Multilateral Convention" Regulations (the Regulations) under the Extradition Act 1988 include those that define the conventions and declare the countries to which the Act will apply. Regulation 1 and 2 provide for the citation of the Regulations and define each relevant convention (Reg 1 and 2). Regulation 3 declares the countries listed in the Schedule to each set of Regulations as extradition countries (Reg 3). Regulation 4 applies the Act to the countries listed in the respective Schedules subject to the relevant convention (Reg 4).
These Regulations impose obligations on the parties or entities they govern by specifying the countries to which the Extradition Act 1988 will apply for certain extradition purposes. Specifically, the Regulations establish the countries with whom Australia has no general extradition relationship but will extradite for convention offences as listed in the Schedules. Countries with whom Australia has a general extradition relationship based on treaties or reciprocity are already covered under the Act, and the Regulations focus on those with whom Australia has no such relationship.
Breach of the provisions of the Extradition Act 1988 or the Regulations may result in legal consequences. Although the explanatory statement does not detail specific offences or penalties, it is reasonable to infer that failure to comply with the Act’s requirements for extradition could lead to civil or criminal penalties. The Act itself may contain provisions for offences related to extradition processes, including the unauthorised release of a person subject to extradition or the failure to comply with an extradition warrant. Penalties for such breaches could range from fines to imprisonment, depending on the severity and nature of the offence. The specific penalties are not detailed in the explanatory statement but would be found within the Act itself.