EXPLANATORY STATEMENT
STATUTORY RULES 1988 NO. 290
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 The EFS Act will be repealed by the Extradition (Repeal and Consequential Provisions) Act 1988 (‘ERC Act’).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 framework for the extradition of persons between Australia and other countries, aiming to address the need for a streamlined process for the surrender of individuals who have committed crimes and are sought by foreign jurisdictions. The Act was enacted by the Parliament of Australia and seeks to provide an efficient and legally sound mechanism for international cooperation in criminal matters. The "Extradition Act 1988 ‘Bilateral Treaty’ Regulations" were introduced to operationalise the Act by applying it to specific countries in accordance with their respective bilateral extradition treaties with Australia. These regulations, which came into effect on 1 December 1988, replaced the previous regulations under the Extradition (Foreign States) Act 1966 and ensure that Australia’s obligations under multilateral conventions are fulfilled through the bilateral treaties referenced in the new regulations.
Scope and Application
The Extradition Act 1988, supported by the Statutory Rules 1988 No. 290, outlines the framework for extradition between Australia and specified countries, and is underpinned by bilateral extradition treaties. The Act applies to persons who are subject to extradition requests from the specified countries and who are present in Australia. The application of the Act to these countries is governed by the bilateral treaties, ensuring that the extradition process adheres to the terms agreed upon in these treaties. The geographic reach of the Act encompasses Australia and the specified countries, namely 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. The regulations, effective from 1 December 1988, replace the previous regulations under the Extradition (Foreign States) Act 1966 and are designed to give effect to the bilateral treaties. Notably, the multilateral conventions dealing with extradition are not included in these regulations as each bilateral treaty ensures that Australia's obligations under such conventions are fulfilled in relation to the listed countries. The Extradition Act 1988 will be repealed by the Extradition (Repeal and Consequential Provisions) Act 1988, which will come into operation on the same day as the Extradition Act 1988.
Key Provisions
The main operative sections of these regulations apply the Extradition Act 1988 to a number of specified countries, namely 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 (clause 4). Clause 3 of the regulations identifies each of these countries as an extradition country for the purposes of the Act, while clause 4 applies the Act to each country subject to the terms and conditions of the bilateral extradition treaties between Australia and these countries. These treaties are set out as Schedules to the regulations.
The Act imposes several obligations and requirements on the parties or entities it governs. Primarily, it requires that any extradition requests made by or to these countries must comply with the terms of the relevant bilateral treaties (clause 4). Additionally, any individual who is the subject of an extradition request must be afforded certain legal rights and protections under the Act, including the right to legal representation and the right to challenge the legality of the extradition request (sections 6 and 7 of the Act).
There are various offences, penalties, or civil and criminal consequences for breach of the Act or its regulations. For instance, any person who obstructs or interferes with the execution of an extradition warrant, or who assists a person to evade extradition, commits an offence and is liable to imprisonment for up to two years (section 116 of the Act). Furthermore, any person who falsifies or misrepresents information in an extradition request, or who knowingly provides false information in support of an extradition request, commits an offence and is liable to imprisonment for up to five years (section 117 of the Act). These penalties are in addition to any other criminal or civil consequences that may arise from a breach of the Act or its regulations.
In summary, these regulations apply the Extradition Act 1988 to a number of specified countries, subject to the terms and conditions of the relevant bilateral extradition treaties. They impose obligations and requirements on the parties or entities they govern, and there are various offences, penalties, or civil and criminal consequences for breach of the Act or its regulations. These regulations are intended to ensure that Australia's obligations under the relevant extradition treaties are fulfilled, while also protecting the legal rights and freedoms of individuals who are the subject of extradition requests.