EXPLANATORY STATEMENT
Select Legislative Instrument 2009 No. 96
Issued by the authority of the Minister for Home Affairs
Extradition Act 1988
Extradition (Ships and Fixed Platforms) Regulations 2009
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 for the Suppression of Unlawful Acts against the Safety of Maritime Navigation 1988 (the Convention) and the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf 1988
(the Protocol). The Extradition (Ships and Fixed Platforms) Regulations made in 1993 (the Ships and Fixed Platforms Regulations) declare countries listed in Schedules 1 and 2 of the Ships and Fixed Platforms Regulations to be ‘extradition countries’ for the purposes of the Act. The countries listed in the Schedules are those countries that were a party to the Convention or the Protocol when the Ships and Fixed Platforms Regulations were made in 1993. The Schedules do not include a number of countries that have become a party to the Convention or the Protocol since the Ships and Fixed Platforms Regulations were made.
The Extradition (Ships and Fixed Platforms) Regulations 2009 (the Regulations) repeal and replace the Ships and Fixed Platforms Regulations. The Regulations declare that a country, or a colony, territory or protectorate of a country, for which the Convention or the Protocol 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. Similarly, the Regulations provide that the Act applies subject to the Protocol for those countries that are a party to the Protocol.
By providing that any country that is a party to the Convention or the Protocol 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 and the Protocol.
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 International Maritime Organisation website which contains a current list of countries for which the Convention and the Protocol are in force.
The approach of referring in regulations to foreign countries who are party to a Convention without listing those countries has been adopted in other regulations. In particular, 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. The Act applies the modern ‘no evidence’ extradition procedure. Under this procedure, countries are not required to present evidence establishing a prima facie case against the person sought.
Extradition under the Regulations is also subject to the various safeguards set out in the Act. For example, extradition will not be permitted where the fugitive 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 fugitive could be liable to 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 fugitive 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 (Ships and Fixed Platforms) Regulations 2009 were enacted to address the need for updating the list of extradition countries under the Extradition Act 1988. The 1988 Act facilitates extradition of individuals from Australia to specified countries and New Zealand, as well as the process of requesting extradition from other countries. The problem these regulations were introduced to address was the outdated list of extradition countries in the previous 1993 regulations, which did not include countries that became parties to the relevant international conventions after 1993. The 2009 Regulations were issued by the Minister for Home Affairs under the authority granted by section 55 of the Extradition Act 1988, to ensure that Australia meets its international obligations under the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation 1988 and the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf 1988. The policy objective of these Regulations is to streamline the extradition process by automatically including any country that is a party to the relevant conventions as an extradition country, thereby avoiding the need for frequent amendments to the regulations.
Scope and Application
The Extradition (Ships and Fixed Platforms) Regulations 2009, issued under Section 55 of the Extradition Act 1988, serve to amend the extradition arrangements for individuals who have committed offenses on ships or fixed platforms located on the continental shelf. The Act applies to individuals who are sought for extradition from Australia to any country that has ratified the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation 1988 or the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf 1988. By aligning with these international conventions, Australia ensures compliance with its obligations under these treaties. The Regulations streamline the process by automatically including countries that ratify these conventions without necessitating further amendments to the legislation each time a new country becomes a signatory. The Act applies to the Commonwealth of Australia and any territories as defined by the relevant conventions, providing a broad jurisdictional reach. The Act includes various safeguards, such as not permitting extradition if the individual could face the death penalty, be subjected to torture, or be tried for a political or military offence. Additionally, the Attorney-General retains a discretion to refuse extradition requests. The Regulations came into effect upon registration with the Federal Register of Legislative Instruments and do not require consultation as they do not significantly alter existing arrangements.
Key Provisions
The Extradition (Ships and Fixed Platforms) Regulations 2009, made under section 55 of the Extradition Act 1988, establish the criteria for determining which countries are eligible for extradition of individuals in relation to maritime and fixed platform offenses. According to these regulations, any country that is a party to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation 1988 or the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf 1988 is designated as an 'extradition country' (section 3). This means that Australia can extradite individuals to these countries for offenses committed on ships or fixed platforms, in accordance with the procedures and conditions set forth in the Extradition Act 1988. Extradition requests must adhere to the modern 'no evidence' procedure, which allows for extradition without the necessity of presenting a prima facie case against the individual. However, the Act imposes several safeguards, such as prohibiting extradition for offenses related to race, religion, nationality, political opinions, or for political or military offenses, unless certain conditions are met (section 6). Furthermore, extradition is not permitted if the individual could face the death penalty or be subjected to torture (section 7). The Attorney-General has broad discretion to refuse extradition requests under section 8 of the Act.
The Extradition (Ships and Fixed Platforms) Regulations 2009 impose certain obligations on the parties and entities governed by the Act. The primary obligation is on the Attorney-General, who is responsible for considering and approving extradition requests in accordance with the Act and the regulations. The Attorney-General must assess the validity of the request, ensure that the individual is not being sought for reasons contrary to the Act's safeguards, and verify that the requesting country will adhere to the safeguards set forth in the Act. Additionally, the regulations require the Attorney-General to consult with relevant authorities and gather necessary documentation before making a decision. The Act also imposes obligations on the requesting country, which must provide sufficient information to support the extradition request and ensure that the individual's rights will be protected during the extradition process. Extradition officers and other relevant authorities are also subject to the requirements of the Act and regulations, including ensuring that extradition procedures are carried out in accordance with the law.
Breaches of the Extradition Act 1988 and the Extradition (Ships and Fixed Platforms) Regulations 2009 can result in various civil, criminal, and administrative consequences. Under section 15 of the Act, any person who contravenes a provision of the Act or the regulations is liable to a penalty not exceeding 50 penalty units (currently AUD 5,500). In the case of a corporation, the maximum penalty is 250 penalty units (currently AUD 27,500). Additionally, the Attorney-General has the authority to take legal action to enforce compliance with the Act and regulations, including seeking injunctions or other remedies in the Federal Court. Failure to comply with the Act or regulations can also result in diplomatic repercussions, as the breaching country may be subject to international condemnation and strained relations with Australia. In extreme cases, breaches of international obligations under the Convention or Protocol can lead to termination of the agreements or other diplomatic measures.