EXPLANATORY STATEMENT
STATUTORY RULES 1988 NO. 287
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 The EFS Act will be repealed by the Extradition (Repeal and Consequential Provisions) Act 1988 (‘ERC Act’).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 establish a legal framework for the extradition of persons between Australia and other countries. This Act was introduced to address the need for a streamlined and legally binding process for the extradition of individuals across international borders, ensuring that Australia could effectively participate in global efforts to combat crime. The Act was passed by the Australian Parliament and aims to provide a comprehensive legal mechanism for the surrender of individuals to other jurisdictions, subject to the terms of bilateral extradition treaties. The Act facilitates the application of domestic law in line with international agreements, thereby enabling the extradition of fugitives and ensuring that Australia meets its obligations under bilateral treaties. These regulations, which take effect from 1 December 1988, are designed to give domestic effect to the extradition treaties between Australia and the specified countries, replacing the previous framework under the Extradition (Foreign States) Act 1966 and ensuring compliance with multilateral conventions through the operation of the bilateral treaties.
Scope and Application
The Extradition Act 1988 applies to the process of extraditing individuals from Australia to specified countries in accordance with bilateral extradition treaties. The Act governs the procedures and conditions under which an individual may be surrendered to another country to face criminal charges or serve a sentence. The legislation applies to persons who are wanted for criminal offences in a specified country and who are found within Australia's jurisdiction. It encompasses a range of entities and conduct, including the legal and administrative processes involved in the extradition process. The geographic reach of the Act is national, as it pertains to the Commonwealth of Australia, but its application is contingent on the existence of a bilateral extradition treaty with the relevant country. The Act does not apply to multilateral conventions unless they are specifically referenced in the bilateral treaties. The application of the Act is extended through subordinate regulations, which specify the countries to which the Act applies and detail the relevant bilateral treaties. These regulations replace previous ones made under the Extradition (Foreign States) Act 1966 and are effective from the date the Extradition Act 1988 comes into operation.
Key Provisions
The Extradition Act 1988 (the Act) is supplemented by regulations that detail the application of the Act to specific extradition countries. These regulations are made under section 55 of the Act, and they ensure that the Act can be applied to a specified country in accordance with a bilateral extradition treaty, as provided for in subparagraph 11(1)(a). For instance, clause 4 of each set of regulations applies the Act to a relevant country, subject to the terms and conditions of the bilateral treaty between Australia and that country, as detailed in the Schedule to the regulations.
The regulations impose obligations on various parties and entities, including the federal government, the courts, and potentially individuals. For example, the federal government must ensure that the regulations are properly implemented and that Australia adheres to its extradition treaty obligations with the specified countries. The courts, in turn, must apply the Act in accordance with the regulations when dealing with extradition matters involving these countries. Individuals who are subject to extradition requests from these countries must also be aware of their rights and obligations under the Act and the relevant treaties.
Failure to comply with the obligations imposed by the regulations may result in legal consequences. While the regulations themselves do not specify particular offences or penalties, breaches of the Act or the relevant extradition treaties may lead to criminal or civil liability. For example, if a person obstructs the extradition process or engages in conduct that violates the terms of the treaty, they may face criminal charges under the Extradition Act or other relevant legislation. The maximum penalties for such offences will depend on the specific provisions of the Act and any related legislation.
The proposed regulations will replace the existing regulations made under the Extradition (Foreign States) Act 1966 (the EFS Act) and will come into effect on the same day as the Extradition Act 1988, as recommended by Executive Council Minute no. 102. The EFS Act will be repealed by the Extradition (Repeal and Consequential Provisions) Act 1988 (the ERC Act), which will also come into operation on the same day as the Extradition Act 1988. The new regulations will apply the Extradition Act 1988 to the specified countries subject to the relevant bilateral treaties, and will ensure that Australia's obligations under any relevant multilateral conventions are fulfilled through the force of the treaties themselves.