EXPLANATORY STATEMENT
STATUTORY RULES 1987 NO. 3
EXTRADITION (FOREIGN STATES) ACT 1966. EXTRADITION (REPUBLIC OF AUSTRIA) REGULATIONS (AMENDMENT)
Issued by authority of the Attorney-General.
Section 31 of the Extradition (Foreign States) Act 1966 provides for the Governor-General to make regulations, not inconsistent with the Act, prescribing all matters required or permitted by this Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act. Sub-section 10(1) provides that where, after the commencement of the Act, an extradition treaty (including an extradition treaty that affects or amends an earlier extradition treaty) comes into force between Australia and a foreign State, regulations may provide, if this Act applies in relation to the foreign State at the time of coming into force of that treaty, that the Act applies in relation to that State after that time subject to such limitations, conditions, exceptions or qualifications as are necessary or desirable to give effect to that treaty and are specified in the regulations.
Australia entered into an extradition treaty with Austria in 1973.
A protocol to this treaty was signed on 30 August 1985. This protocol, in line with current Australian treaty negotiation practice -
(a) describes an extradition offence as an offence which is punishable under the laws of both parties to the Treaty by imprisonment or other deprivation of liberty for a period of more than one year or by a more severe penalty; and
(b) replaces the ‘sufficient evidence’ requirement with a statement of acts or omissions alleged against the fugitive.
Details of the amending regulations are as follows:-
Regulation 1 - relates these amendments to the principal regulations.
Regulation 2 - provides for the amending regulations to come into operation on 1 February 1987.
Regulation 3 -
(a) takes into account the fact that the amending regulations will add a second schedule to the principal regulations; and
(b) amends the citation of the principal regulations to take account of the protocol to the 1973 treaty.
Regulation 4 - removes the reference to ‘the Schedule’ and re-numbers it as ‘Schedule 1’ (see regulation 3(a) above); and
Regulations 5 - incorporates ‘Schedule 2’, which is the text of the protocol done at Vienna on 13 August 1985.
Article 6 of the protocol provides for it to enter into force on the first day of the third month following the month in which Australia and Austria have notified each other that their respective requirements for entry into force have been complied with. These notifications were exchanged on 18 November 1986 and thus the amended treaty came into force on 1 February 1987.
Overview
The Extradition (Republic of Austria) Regulations (Amendment) Statutory Rules 1987 No. 3 were enacted to align Australian law with the updated extradition treaty between Australia and Austria. This amendment was necessary following the signing of a protocol on 30 August 1985, which clarified the definition of an extradition offence and modified the evidentiary requirements from 'sufficient evidence' to a statement of acts or omissions. The Act was introduced by the Attorney-General, acting under the authority granted by Section 31 of the Extradition (Foreign States) Act 1966. The objective was to ensure that the existing extradition framework remained effective and compliant with the new treaty provisions. The regulations came into force on 1 February 1987, reflecting the updated requirements and facilitating the extradition process between the two countries.
Scope and Application
The Extradition (Republic of Austria) Regulations (Amendment) 1987 amends the existing Extradition (Republic of Austria) Regulations, which were made under the Extradition (Foreign States) Act 1966. These regulations apply to the process of extraditing individuals from Australia to Austria and vice versa, specifically in relation to the extradition treaty between the two countries, as amended by the 1985 protocol. The Act applies to any person who is subject to the extradition process under the treaty, including those who are wanted for extradition offences as defined in the protocol. The geographical scope of the Act is limited to Australia and Austria, and it applies to any conduct or transactions that fall within the purview of the extradition treaty and its amendments. The regulations do not specify any exclusions or exemptions, nor do they set any thresholds for the application of the Act. The Act's application may be extended or restricted through subordinate instruments such as regulations, which are made under the authority of the Attorney-General and must not be inconsistent with the Act.
Key Provisions
The Extradition (Republic of Austria) Regulations (Amendment) issued under Section 31 of the Extradition (Foreign States) Act 1966 outline specific amendments to the existing extradition arrangements between Australia and Austria. Regulation 2 specifies that these amendments will take effect from 1 February 1987. Regulation 3 ensures that the existing regulations are updated to reflect the new protocol, including the addition of a second schedule and modifying the citation to incorporate the protocol. Regulation 4 adjusts the references within the regulations to reflect the new structure, renaming the existing schedule as "Schedule 1". Regulation 5 introduces "Schedule 2", which contains the text of the protocol agreed upon in Vienna on 13 August 1985.
These regulations impose several obligations on the parties involved. Firstly, they mandate that any extradition requests made by Austria under the amended treaty must comply with the definitions and criteria outlined in the protocol, particularly concerning the classification of extradition offences and the required evidence. The regulations also require Australian authorities to ensure that any extradition processes adhere to the treaty's stipulations, including the necessity of sufficient evidence as defined in the protocol. Additionally, the regulations require that all procedures for the surrender of fugitives are conducted in a manner that respects the legal rights of the individuals involved, as per the terms of the extradition treaty and the protocol.
Failure to comply with the provisions of these regulations may result in legal consequences. While the regulations themselves do not explicitly detail specific offences or penalties, breaches of the Extradition (Foreign States) Act 1966 or the underlying extradition treaty could lead to legal action. Such breaches might be subject to the penalties prescribed under the Extradition Act, which can include fines and imprisonment. Additionally, if the actions of Australian authorities result in the violation of the fugitive's rights, this could lead to civil liabilities or international disputes, further highlighting the importance of adhering to the regulations.