EXPLANATORY STATEMENT
Select Legislative Instrument 2009 No. 264
Issued by the authority of the Minister for Home Affairs
Extradition Act 1988
Extradition (Safety of United Nations and Associated Personnel) Amendment Regulations 2009 (No. 1)
Section 55 of the Extradition Act 1988 (the Act) provides, in part, that the Governor‑General may make regulations, not inconsistent with the Act, prescribing all 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.
The Act makes provision for the extradition of persons from Australia to extradition countries and to New Zealand, and facilitates the making of requests for extradition by Australia to other countries. Extradition from Australia can only take place to an extradition country, or to New Zealand, under the special procedures set down in the Act. Section 5 of the Act provides that an ‘extradition country’ is any country (other than New Zealand) that is declared by the regulations to be an extradition country.
Subsection 11(1A) of the Act provides that the regulations may provide that the Act applies in relation to a specified extradition country subject to the limitations, conditions, exceptions or qualifications as are necessary to give effect to a multilateral extradition treaty in relation to the country. Subsection 11(1C) provides that this may be achieved by applying the Act to the country subject to the treaty.
Australia is party to the Convention on the Safety of United Nations and Associated Personnel 1994 (the Convention). The Extradition (Safety of United Nations and Associated Personnel) Regulations 2000 (the Principal Regulations) declared countries listed in Schedule 2 of the Principal Regulations to be ‘extradition countries’ for the purposes of the Act. The countries listed in Schedule 2 were those countries that were a party to the Convention at the time the Principal Regulations were made. The Schedule did not include a number of countries that had become a party to the Convention since the Principal Regulations were made.
The Extradition (Safety of United Nations and Associated Personnel) Amendment Regulations 2009 (No. 1) (the Regulations) amend the Principal Regulations. The Regulations declare that a country, or a colony, territory or protectorate of a country, for which the Convention is in force is an ‘extradition country’ for the purposes of section 5 of the Act and that the Act applies subject to the Convention for those countries that are a party to the Convention. By providing that any country that is a party to the Convention at any given time will be an ‘extradition country’ for the purposes of the Act, these amendments will ensure Australia is able to meet its international obligations under the Convention.
The Regulations simplify the administrative arrangements so that the Regulations do not have to be amended each time a new country becomes a party to the Convention. The Regulations include a note referring the reader to the United Nations website which contains a current list of countries for which the Convention is in force.
The approach of referring in regulations to foreign countries that are party to a Convention without listing those countries has been adopted in other regulations. Subsection 13(3) of the Legislative Instruments Act 2003 allows things to be declared in regulations by referring to a class of things.
Extradition under the Regulations operates in accordance with the Act, subject to the applicable Convention. The Act applies the modern ‘no evidence’ standard for documentation provided in support of any extradition request. In accordance with this evidentiary standard, countries are not required to provide evidence sufficient to establish a prima facie case that the person committed the offence.
Extradition requests made pursuant to the Regulations are subject to the various safeguards set out in the Act. For example, extradition will not be permitted where the person is sought for or in connection with his or her race, religion, nationality or political opinions or is to be tried, sentenced or detained for a political or military offence. Extradition must be refused where the offence for which the person is requested attracts the death penalty, unless an undertaking is given that the death penalty will not be imposed or, if imposed, will not be carried out. Extradition must also be refused where the person could be subjected to torture. In addition, the Attorney-General retains a broad discretion to refuse an extradition request by a country.
Consultation was unnecessary for this legislative instrument as this instrument does not substantially alter existing arrangements and has no direct or indirect effect on business.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulations commenced on the day after they were registered with the Federal Register of Legislative Instruments.
Overview
The Extradition (Safety of United Nations and Associated Personnel) Amendment Regulations 2009 (No. 1) were introduced to address the gap in the Extradition Act 1988, specifically concerning the safety of United Nations personnel. Enacted by the Minister for Home Affairs under the authority of section 55 of the Extradition Act 1988, these regulations amend the Extradition (Safety of United Nations and Associated Personnel) Regulations 2000. The primary objective of these amendments is to ensure that Australia meets its international obligations under the Convention on the Safety of United Nations and Associated Personnel 1994 by declaring that any country that is a party to the Convention is an 'extradition country'. This approach simplifies the administrative process by avoiding the need to amend the regulations each time a new country becomes a party to the Convention. Consequently, these amendments streamline the extradition process, ensuring it aligns with international standards while maintaining the stringent safeguards stipulated in the Extradition Act.
Scope and Application
The Extradition (Safety of United Nations and Associated Personnel) Amendment Regulations 2009 (No. 1) pertains to the Extradition Act 1988 and modifies the Extradition (Safety of United Nations and Associated Personnel) Regulations 2000 by updating the list of extradition countries to include any country for which the Convention on the Safety of United Nations and Associated Personnel 1994 is in force. This amendment ensures Australia can meet its international obligations under the Convention, without the need for continual amendments to the regulations each time a new country joins the Convention. The regulations apply to any individual or entity subject to extradition processes in relation to crimes committed against United Nations and associated personnel, and to any conduct or transactions that fall within the scope of the Convention. Geographically, these regulations extend to any country that has ratified the Convention, thereby establishing a broad jurisdictional reach. The Act and its regulations provide a framework for extradition, applying specific conditions and limitations such as the ‘no evidence’ standard for extradition requests and safeguarding against extradition requests that contravene fundamental human rights, such as the imposition of the death penalty or the risk of torture. The Attorney-General also retains discretionary power to refuse extradition requests. This legislative instrument is a means of ensuring that Australia's extradition practices align with international standards and commitments.
Key Provisions
The Extradition (Safety of United Nations and Associated Personnel) Amendment Regulations 2009 (No. 1) (the Regulations) amend the Extradition (Safety of United Nations and Associated Personnel) Regulations 2000 (the Principal Regulations). These amendments are made under section 55 of the Extradition Act 1988 (the Act), which allows the Governor-General to make regulations that are necessary or convenient for carrying out the Act. The Regulations, as per section 5, declare that any country for which the Convention on the Safety of United Nations and Associated Personnel 1994 is in force is considered an 'extradition country' under the Act, thereby allowing for the extradition of individuals from Australia to these countries if they are suspected of committing certain offences under the Convention.
The Regulations impose obligations on parties and entities governed by them, requiring adherence to the provisions set out in the Extradition Act. This includes ensuring that extradition processes comply with the Convention and the Act, such as applying the 'no evidence' standard for documentation and adhering to various safeguards. For instance, extradition cannot be permitted if the individual is sought for reasons related to their race, religion, nationality, or political opinions, or if the offence could result in the imposition of the death penalty without proper assurances, or if the individual could be subjected to torture. Additionally, the Attorney-General retains a broad discretion to refuse extradition requests.
The Act imposes significant consequences for non-compliance with its provisions. Although the Regulations themselves do not specify penalties, the Extradition Act includes provisions for offences and penalties. For instance, under section 34, any person who contravenes the Act or the regulations is liable to a penalty not exceeding 120 penalty units, which is a monetary fine. Further, section 35 states that in addition to or in lieu of the fine, a person may be subject to imprisonment for a period not exceeding two years. The Act also outlines other civil and criminal consequences for serious breaches, ensuring that the extradition process is carried out with due regard to legal standards and international obligations.
The Regulations ensure that Australia can meet its international obligations under the Convention on the Safety of United Nations and Associated Personnel by automatically including any country that becomes a party to the Convention as an 'extradition country'. This avoids the need for continual amendments to the regulations each time a new country joins the Convention, streamlining administrative processes. By referring to the United Nations website for an up-to-date list of countries that are party to the Convention, the Regulations provide a dynamic and efficient framework for extradition under the Act.