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
Overview
The Extradition (Foreign States) Act 1966 was enacted to provide a legislative framework for the extradition of persons between Australia and foreign states. The Act was introduced to address the need for a formal mechanism to facilitate the extradition process with other countries, ensuring that fugitives could be returned to Australia to face justice. The Extradition (Republic of Portugal) Regulations 1988 were subsequently created to implement a modernised extradition treaty with Portugal, replacing an older treaty from 1892. The regulations were developed in accordance with sections 10 and 31 of the Extradition (Foreign States) Act 1966, and they were made by the Governor-General, the enacting body, to bring the new treaty into effect. The policy objective of these regulations was to modernise the extradition process by aligning it with contemporary standards and legal frameworks, particularly by defining an extradition offence more clearly and adjusting the evidential requirements for extradition requests.
Scope and Application
The Extradition (Republic of Portugal) Regulations 1988 apply the Extradition (Foreign States) Act 1966 to the Republic of Portugal in accordance with the Extradition Treaty done at Lisbon on 21 April 1987. These regulations extend the application of the Act to the Republic of Portugal, subject to the specific terms and conditions outlined in the treaty. Regulation 4(1) of the Regulations provides that the Act applies to the Republic of Portugal under the terms of the 1987 Extradition Treaty, which supersedes the 1892 treaty between the United Kingdom and Portugal. This treaty defines an extradition offence as one punishable by imprisonment or other deprivation of liberty for a period of at least one year under the laws of both parties, and it replaces the 'sufficient evidence' requirement with a statement of acts or omissions alleged against the fugitive. The Regulations came into force on 29 August 1988, following the exchange of diplomatic notes between Australia and the Republic of Portugal on 29 July 1988 as required by Article 19 of the 1987 treaty. These Regulations are made under the authority of sections 10 and 31 of the Extradition (Foreign States) Act 1966, which empower the Governor-General to make regulations necessary or convenient to carry out or give effect to the Act.
Key Provisions
The main provisions of the Extradition (Republic of Portugal) Regulations, which are detailed in the explanatory statement, focus primarily on the application of the Extradition (Foreign States) Act 1966 (the Act) to the Republic of Portugal, in accordance with the Extradition Treaty between Australia and Portugal executed on 21 April 1987. Regulation 1 serves a formal purpose by citing the Regulations. Regulation 2 establishes the effective date for the Regulations, which is 29 August 1988, as stipulated by the treaty. Regulation 3 contains definitions and interpretations relevant to the Regulations, ensuring clarity and consistency in their application. Regulation 4(1) explicitly applies the Act to the Republic of Portugal, subject to the terms and conditions of the Extradition Treaty done at Lisbon on 21 April 1987, which is detailed in the Schedule to the Regulations. Regulation 4(2) clarifies that this application of the Act is supplementary to any other regulations that may also apply to the Republic of Portugal.
The Regulations impose specific obligations on the parties involved, primarily centred around the implementation and enforcement of the Extradition Treaty. They require adherence to the provisions of the Act as applied to the Republic of Portugal, which includes recognising and processing extradition requests in line with the treaty. This means that the authorities in both Australia and Portugal must follow the procedures and criteria outlined in the Act and the treaty when handling extradition matters. Additionally, the Regulations ensure that any extradition request must meet the criteria set by the treaty, such as the requirement that the offence for which extradition is sought must be punishable by imprisonment or other deprivation of liberty for a period of at least one year under the laws of both parties.
Failure to comply with the provisions of the Extradition (Foreign States) Act 1966 or the Extradition (Republic of Portugal) Regulations can result in various consequences. Offences and penalties under the Act may include criminal charges for those who obstruct or interfere with extradition processes, as well as civil penalties for non-compliance with regulatory requirements. The Act also includes provisions for the arrest and detention of individuals pending extradition proceedings, and failure to adhere to these provisions can lead to legal action. The maximum penalties for specific offences under the Act may vary, but they generally include substantial fines and imprisonment terms that reflect the seriousness of the offence. These legal ramifications underscore the importance of strict compliance with the Act and the Regulations to ensure the effective and lawful operation of the extradition process between Australia and the Republic of Portugal.