EXPLANATORY STATEMENT
STATUTORY RULES 1988 NO. 52.
SUBJECT: EXTRADITION (FOREIGN STATES) ACT 1966
EXTRADITION (SPAIN) 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 Spain made in 1878.
A modern extradition treaty between Australia and Spain was signed on 22 April 1987. This treaty terminates the treaty of 1878 (see Article 16). It represents a significant departure from that treaty 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 or by a more severe penalty;
(b) replaces the ‘sufficient evidence’ requirement with a statement of acts or omissions alleged against the fugitive.
Article 16 of the 1987 treaty provides for the treaty to enter into force thirty days after Australia and Spain have exchanged notifications that the legal requirements for its entry into force have been complied with. Australia’s requirements for entry into force are the making of the Extradition (Spain) Regulations.
Australia and Spain exchanged diplomatic notes on 5 April 1988 in accordance with Article 16 of the treaty. In accordance with that Article of the treaty Regulation 2 of the Regulations provides that the Regulations come into operation on 5 May 1988 being thirty days after the exchange of diplomatic notes on 5 April 1988.
Overview
The Extradition (Spain) Regulations 1988 were enacted under the Extradition (Foreign States) Act 1966, and were introduced to facilitate the implementation of the modern extradition treaty between Australia and Spain signed on 22 April 1987. This treaty, which supersedes the older 1878 treaty between the United Kingdom and Spain, represents a significant shift in the definition of extradition offences and the procedures for handling them. The regulations were necessary to formalise the application of the Extradition Act in relation to Spain under the new treaty, ensuring that the legal requirements for its entry into force were met. The Extradition (Spain) Regulations 1988 were made under the authority of the Governor-General, pursuant to section 31 of the Extradition Act, and the objective was to provide the necessary framework for the extradition process between the two countries, as outlined in the 1987 treaty. The regulations came into operation on 5 May 1988, thirty days after the exchange of diplomatic notes between Australia and Spain, as required by Article 16 of the treaty.
Scope and Application
The Extradition (Spain) Regulations 1988 apply to individuals who are subject to extradition proceedings between Australia and Spain, as outlined in the Extradition (Foreign States) Act 1966. These Regulations provide the legal framework for the extradition of individuals who have committed an offence under the laws of both Australia and Spain and are punishable by imprisonment or a more severe penalty. The Regulations are specifically designed to give effect to the 1987 extradition treaty between Australia and Spain, which replaced the older 1878 treaty and introduces a more contemporary definition of an extradition offence and the requisite evidence. The Regulations apply to any person who is wanted for extradition from Australia to Spain or from Spain to Australia, and they specify the procedures and requirements for the extradition process to be conducted in accordance with the treaty. These Regulations extend to the Commonwealth of Australia and the Kingdom of Spain, and they are applicable to any relevant conduct or transactions that occur within the territories of these countries. The Regulations are made under the authority of Section 31 of the Extradition (Foreign States) Act 1966 and come into force as per Regulation 2, which stipulates that they will take effect on 5 May 1988, thirty days after the exchange of diplomatic notes between Australia and Spain.
Key Provisions
The Extradition (Spain) Regulations, made under Section 31 of the Extradition (Foreign States) Act 1966, set out the specific provisions for the extradition process between Australia and Spain. These regulations are designed to facilitate the application of the Act in relation to Spain, taking into account the terms of the 1987 extradition treaty between the two countries. Regulation 2 specifies that the Regulations will come into operation on 5 May 1988, thirty days after the exchange of diplomatic notes between Australia and Spain on 5 April 1988, as required by Article 16 of the 1987 treaty.
These regulations impose certain obligations on the parties involved in the extradition process. For instance, they define an extradition offence as one that is punishable by imprisonment or other deprivation of liberty for a period of at least one year or by a more severe penalty under the laws of both Australia and Spain. This definition replaces the previous 'sufficient evidence' requirement with a detailed statement of the acts or omissions alleged against the fugitive, providing clarity and specificity in the extradition process. The regulations also ensure that the extradition treaty of 1987 supersedes the earlier treaty of 1878, thereby updating the legal framework to reflect modern standards and practices.
Failure to comply with the provisions of these regulations may result in civil or criminal consequences. While the specific penalties for breaches are not detailed in the explanatory statement, the Extradition (Foreign States) Act 1966 provides a framework under which breaches could be prosecuted. The Act allows for the imposition of penalties, which could include fines or imprisonment, depending on the nature and severity of the breach. It is important for parties involved in the extradition process to adhere strictly to the regulations to avoid any potential legal repercussions.