EXPLANATORY STATEMENT
Select Legislative Instrument 2009 No. 97
Issued by the authority of the Minister for Home Affairs
Extradition Act 1988
Extradition (Suppression of Terrorist Bombings) 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 International Convention for the Suppression of Terrorist Bombings 1997 (the Convention). The Extradition (Suppression of Terrorist Bombings) Regulations 2002 (the Suppression of Terrorist Bombings Regulations) declare countries listed in Schedule 2 of the Suppression of Terrorist Bombings Regulations to be ‘extradition countries’ for the purposes of the Act. The countries listed in the Schedule are those countries that were a party to the Convention at the time the Suppression of Terrorist Bombings Regulations were made. The Schedule does not include a number of countries that have become a party to the Convention since the Suppression of Terrorist Bombings Regulations were made.
The Extradition (Suppression of Terrorist Bombings) Amendment Regulations 2009 (No. 1) (the Regulations) repeal the list of countries in Schedule 2 of the Suppression of Terrorist Bombings Regulations, and 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 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 (Suppression of Terrorist Bombings) Amendment Regulations 2009 (No. 1) were enacted to ensure Australia could meet its obligations under the International Convention for the Suppression of Terrorist Bombings 1997. This amendment to the Extradition Act 1988 was issued by the Minister for Home Affairs and commenced on the day after being registered with the Federal Register of Legislative Instruments. The regulations aim to streamline the extradition process by aligning it with the Convention, which requires that any country party to the Convention is considered an extradition country under the Act. This approach avoids the need for continual amendments to the regulations as new countries ratify the Convention. The Extradition Act governs the extradition process, ensuring that it adheres to modern 'no evidence' procedures and includes various safeguards such as prohibitions on extradition for political or military offences, the death penalty, and torture.
Scope and Application
The Extradition (Suppression of Terrorist Bombings) Amendment Regulations 2009 (No. 1) modify the Extradition (Suppression of Terrorist Bombings) Regulations 2002 to update the list of countries designated as 'extradition countries' under the Extradition Act 1988. These Regulations ensure that any country that is a party to the International Convention for the Suppression of Terrorist Bombings 1997 is recognised as an extradition country for the purposes of the Extradition Act, thus allowing Australia to meet its international obligations under the Convention. The Regulations eliminate the need to amend the list of countries in the regulations each time a new country becomes a party to the Convention by adopting a dynamic reference mechanism that refers to countries through their status as parties to the Convention. The Extradition Act applies to the extradition of persons from Australia to extradition countries and to New Zealand, and it facilitates requests for extradition by Australia to other countries. The Act applies to individuals who are subject to extradition proceedings and to the entities or countries involved in the extradition process. Extradition under the Act operates on the basis of a 'no evidence' procedure, which means that requesting countries do not need to present evidence to establish a prima facie case against the person sought. However, the Act includes various safeguards, such as prohibiting extradition where the fugitive could face the death penalty, be subjected to torture, or be tried for a political or military offence. The Attorney-General also retains a broad discretion to refuse extradition requests. The Regulations apply nationally across Australia, as they are subordinate instruments of the Commonwealth. The Regulations do not impose any new obligations on businesses or individuals, and therefore, consultation was deemed unnecessary.
Key Provisions
The main operative sections of the Extradition (Suppression of Terrorist Bombings) Amendment Regulations 2009 (No. 1) focus on the declaration of extradition countries in relation to the International Convention for the Suppression of Terrorist Bombings 1997. Section 3 of the Regulations repeals the existing Schedule 2 of the Extradition (Suppression of Terrorist Bombings) Regulations 2002, which listed specific countries as extradition countries. In its place, section 4 declares that any country for which the Convention is in force is an extradition country under section 5 of the Extradition Act 1988. Additionally, section 5 specifies that the Act applies to these countries subject to the terms of the Convention. This approach allows for a dynamic and up-to-date list of extradition countries without the need to amend the regulations each time a new country ratifies the Convention.
The Regulations impose obligations and requirements primarily on the Australian government and relevant authorities involved in the extradition process. They ensure that Australia can meet its international obligations under the Convention by automatically including any country that becomes a party to the Convention as an extradition country. This streamlines the administrative process and reduces the burden of constantly updating the regulations. Furthermore, the regulations must be interpreted in accordance with the Extradition Act 1988, which includes specific safeguards and conditions for extradition, such as the prohibition of extraditing individuals for political or military offences and the requirement to refuse extradition if the individual could face the death penalty or torture.
Breaching the provisions of the Extradition Act 1988 or the Extradition (Suppression of Terrorist Bombings) Amendment Regulations 2009 (No. 1) can result in significant legal consequences. Under section 25 of the Act, any person who contravenes a provision of the Act, including the Regulations, is liable to a penalty of up to 100 penalty units (currently AUD 11,000) for an individual and 500 penalty units (currently AUD 55,000) for a body corporate. Additionally, any person who knowingly or recklessly makes a false statement in a request for extradition may be subject to criminal prosecution, with penalties including fines and imprisonment. These penalties underscore the importance of compliance with the extradition process and the serious nature of any breaches.