EXPLANATORY STATEMENT
STATUTORY RULES 1988 NO. 210
SUBJECT: EXTRADITION (FOREIGN STATES) ACT 1966
EXTRADITION (REPUBLIC OF PORTUGAL) REGULATIONS
Section 31 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. Subsection 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 succeeded to an extradition treaty between the United Kingdom and Portugal made in 1892 as supplemented by a Convention to the Treaty done in 1932.
A modern extradition treaty between Australia and the Republic of Portugal was signed on 21 April 1987. This treaty, terminates the treaty of 1892 (see Article 19). It represents a significant departure from those treaties in that it:
(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 at least one year;
(b) replaces the ‘sufficient evidence’ requirement with a statement of acts or omissions alleged against the fugitive.
Article 19 of the 1987 treaty provides for the treaty to enter into force thirty days after Australia and Republic of the Portugal have notified each other in writing that their respective requirements for the entry into force of the Treaty have been complied with. Australia’s requirements for entry into force are the making of the Extradition (Republic of Portugal) Regulations.
Australia and the Republic of Portugal exchanged diplomatic notes on 29 July 1988 in accordance with Article 19 of the treaty. In accordance with that Article of the treaty Regulation 2 of the Regulations provides that the Regulations come into operation on 29 August 1988 being the date agreed in the exchange of notifications on 29 July 1988.
Details of the proposed Regulations are as follows:
Regulation 1 is a citation regulation,
Regulation 2 gives 29 August 1988 as the commencement date for the Regulations,
Regulation 3 is an interpretation Regulation,
Regulation 4(1) applies the Extradition (Foreign States) Act (the Act) to the Republic of Portugal subject to the Extradition Treaty done at Lisbon on 21 April 1987 which is set out in the Schedule to the Regulations, and
Regulation 4(2) provides that Regulation 4(1) shall be in addition to any other Regulation making provision in respect of application of the Act to the Republic of Portugal.
Authority: Sections 10 and 31 of the Extradition (Foreign States) Act 1966