EXPLANATORY STATEMENT
STATUTORY RULES 1988 NO. 296
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 The EFS Act will be repealed by the Extradition (Repeal and Consequential Provisions) Act 1988 (‘ERC Act’).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 provide a framework for the extradition of individuals between Australia and specified countries, ensuring that extradition processes are conducted in accordance with international treaties and domestic laws. The Act was introduced to address the need for a streamlined and legally sound process for the extradition of fugitives across borders. The Extradition Act 1988 was enacted by the Parliament of Australia and aims to facilitate the extradition process in alignment with bilateral extradition treaties. The "Bilateral Treaty" Regulations, made under the authority of the Act, were designed to give effect to these treaties by applying the Act to specific countries, thereby replacing the previous framework established under the Extradition (Foreign States) Act 1966. These regulations ensure that Australia’s obligations under multilateral conventions are fulfilled through the bilateral treaties with the listed countries.
Scope and Application
The Extradition Act 1988 applies to the extradition of individuals from Australia to specified countries, as well as to the extradition of individuals from those countries to Australia, subject to the terms and conditions of the bilateral extradition treaties between Australia and each of those countries. The Act applies to any person who is wanted in another country for the purpose of that person being tried or sentenced for an offence against the criminal law of that country, or who is being tried or sentenced in Australia for an offence against the criminal law of another country. The Act applies to the conduct of extradition proceedings and the transfer of individuals between countries. The Act applies to all persons, whether citizens or non-citizens, who are subject to the jurisdiction of the Australian courts. The Act applies to all criminal offences, including both serious and minor offences, and does not impose any thresholds or exclusions based on the nature or severity of the offence. The Act applies to all countries that have a bilateral extradition treaty with Australia, including Austria, Belgium, Finland, Israel, Italy, Luxembourg, the Netherlands, Norway, Portugal, Spain, Sweden, and the United States. The Act may be extended or restricted by subordinate regulations made under section 55 of the Act, and references to multilateral conventions dealing with extradition are not included in the regulations because each of the treaties given domestic legal effect by the regulations will, of its own force, permit extradition for multilateral convention offences.
Key Provisions
The "Bilateral Treaty" Regulations under the Extradition Act 1988 (section 55) specify the countries to which the Act applies, subject to the relevant bilateral extradition treaties. These regulations are designed to implement the Act in alignment with treaties between Australia and specific countries. They declare certain nations as extradition countries and apply the Act to them in accordance with the terms of their bilateral treaties (clause 4). This approach ensures that extradition processes comply with the specific agreements between Australia and the designated countries, rather than being subject to multilateral conventions unless otherwise stipulated in the bilateral treaties.
The obligations imposed by these regulations on the parties involved primarily revolve around ensuring that extradition requests and processes adhere to the terms of the bilateral treaties. Specifically, the Act must be applied in a manner that respects the conditions set out in each treaty, which are detailed in the schedules to the regulations. This includes the requirement for both Australian authorities and the authorities of the relevant countries to follow the specific procedures and criteria outlined in their respective extradition treaties when dealing with extradition requests.
Violations of the provisions in these regulations can lead to significant consequences. While the specific offences and penalties are not detailed in the explanatory statement, the overarching Extradition Act 1988 provides for various penalties for breaches. These could include fines or imprisonment, depending on the severity of the breach and the jurisdiction's laws. For instance, under section 111 of the Extradition Act, any person who obstructs an extradition process can be subject to a penalty of up to five years imprisonment. Furthermore, the regulations' compliance with the bilateral treaties means that non-compliance could also lead to diplomatic repercussions or the termination of the treaty itself, depending on the nature and extent of the breach.
The regulations ensure that the Extradition Act 1988 is implemented in a way that aligns with the specific commitments Australia has made under its bilateral treaties. This includes obligations for the authorities to process extradition requests in a manner that is consistent with the terms of the treaties, which may include specific procedural requirements or limitations on the types of offences for which extradition is permitted. Failure to comply with these obligations can result in legal penalties under the Act, as well as potential diplomatic or treaty-related consequences.