EXPLANATORY STATEMENT
STATUTORY RULES 1988 NO. 295
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 The EFS Act will be repealed by the Extradition (Repeal and Consequential Provisions) Act 1988 (‘ERC Act’).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 individuals between Australia and other specified countries. This legislation was introduced to address the need for a comprehensive and consistent approach to extradition, ensuring that Australia could effectively participate in international cooperation in criminal matters. The Act was enacted by the Parliament of Australia, with the intention of providing a modernised and streamlined process for extradition that aligns with contemporary international standards and bilateral treaties. The primary policy objective of the Act is to facilitate the extradition of fugitives in a manner that respects the rights of individuals and adheres to the obligations under international law. The accompanying "Bilateral Treaty" Regulations, made under section 55 of the Act, specify the countries to which the Act applies and the conditions under which extradition may occur, based on the respective bilateral extradition treaties. These regulations effectively replace the previous framework established under the Extradition (Foreign States) Act 1966 and were designed to take effect on the same day as the Extradition Act 1988, ensuring a seamless transition in the legal landscape concerning extradition.
Scope and Application
The Extradition Act 1988, along with the "Bilateral Treaty" Regulations, governs the extradition process between Australia and specified countries, ensuring that the extradition process adheres to bilateral treaties. These regulations apply to the countries listed, which include the Republic of Austria, the Kingdom of Belgium, the Republic of Finland, the State of Israel, the Republic of Italy, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, Norway, the Republic of Portugal, the Kingdom of Spain, Sweden, and the United States of America, and are contingent upon the existence of a bilateral extradition treaty with each of these nations. The regulations ensure that the Act is applied to each specified country in accordance with the terms and conditions outlined in the respective extradition treaties. These treaties are reproduced in the Schedules attached to the regulations. The regulations are designed to replace the older regulations made under the Extradition (Foreign States) Act 1966 and are intended to be effective from the date the Extradition Act 1988 comes into operation, which is set to be 1 December 1988. Notably, these regulations exclude the multilateral conventions dealing with extradition, as each bilateral treaty will inherently permit extradition for offences covered under such conventions, thereby fulfilling Australia's obligations under these conventions.
Key Provisions
The proposed "Bilateral Treaty" Regulations under the Extradition Act 1988 (section 55) clarify how the Act applies to specified countries, ensuring extradition processes align with bilateral treaties. The regulations, which are set to take effect on 1 December 1988, outline the countries to which the Extradition Act will apply, specifically: the 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, and the United States of America (Clause 3). These countries are designated as extradition countries subject to the respective bilateral extradition treaties. Each treaty is detailed as a Schedule to the Regulations (Clause 4).
These regulations impose obligations on the parties involved, requiring that extradition requests and processes between Australia and the specified countries adhere to the terms of the bilateral treaties. This means that any extradition proceedings must comply with the specific legal standards and conditions set out in each treaty, ensuring a structured and lawful approach to extradition. The regulations also necessitate that any obligations under multilateral conventions related to extradition are fulfilled through the bilateral treaties, thereby integrating Australia's commitments under international law into the domestic framework.
In terms of enforcement, the Act and the regulations establish clear consequences for non-compliance. Offences that involve breaches of the extradition processes or failure to adhere to the terms of the treaties may lead to civil or criminal penalties. The specific penalties are not detailed in the explanatory statement, but typically, such breaches can result in fines or imprisonment, depending on the severity and nature of the offence. The Act's provisions ensure that the extradition process is conducted in a manner that respects both the legal frameworks of the involved countries and the rights of individuals.