EXPLANATORY STATEMENT
Select Legislative Instrument 2009 No. 98
Issued by the authority of the Minister for Home Affairs
Extradition Act 1988
Extradition (Suppression of the Financing of Terrorism) 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 the Financing of Terrorism 1999 (the Convention). The Extradition (Suppression of the Financing of Terrorism) Regulations 2006 (Suppression of the Financing of Terrorism Regulations) declare countries listed in Schedule 2 of the Suppression of the Financing of Terrorism 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 the Financing of Terrorism Regulations were made. The Schedule does not include a number of countries that have become a party to the Convention since the Suppression of the Financing of Terrorism Regulations were made.
The Extradition (Suppression of the Financing of Terrorism) Amendment Regulations 2009 (No. 1) (the Regulations) repeal the list of countries in Schedule 2 of the Suppression of the Financing of Terrorism 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 the Financing of Terrorism) Amendment Regulations 2009 (No. 1) were enacted to address the need for Australia to meet its international obligations under the International Convention for the Suppression of the Financing of Terrorism 1999. This amendment to the Extradition Act 1988 was introduced by the Minister for Home Affairs and issued under the authority of the Minister. The policy objective of these regulations is to ensure that Australia can extradite individuals for terrorism-related offences to any country that is a party to the Convention, without requiring constant amendments to the legislation as new countries join the Convention. The regulations achieve this by referring to countries that are party to the Convention rather than listing them individually, thereby simplifying administrative processes and ensuring compliance with international obligations. Extradition under these regulations follows the modern 'no evidence' procedure, subject to various safeguards including protection against extradition for political or military offences, the death penalty, and torture.
Scope and Application
The Extradition (Suppression of the Financing of Terrorism) Amendment Regulations 2009 (No. 1) amend the Extradition (Suppression of the Financing of Terrorism) Regulations 2006 by updating the list of countries that can be designated as extradition countries under the Extradition Act 1988. This amendment ensures the Act aligns with Australia's obligations under the International Convention for the Suppression of the Financing of Terrorism 1999. The Regulations streamline the process by allowing any country party to the Convention to be considered an extradition country without necessitating amendments to the regulations each time a new country joins the Convention. This approach is in line with the broader legal framework provided by the Legislative Instruments Act 2003, which allows for declarations by reference to a class of things. Extradition under these regulations follows the modern 'no evidence' procedure and is subject to various safeguards, including restrictions on extradition for political or military offences, prohibitions against the death penalty or torture, and a broad discretion for the Attorney-General to refuse extradition requests. These Regulations do not substantially alter existing arrangements and therefore did not require consultation.
Key Provisions
The Extradition (Suppression of the Financing of Terrorism) Amendment Regulations 2009 (No. 1) primarily address the definition and scope of 'extradition countries' under the Extradition Act 1988 (the Act). Section 5 of the Act specifies that an 'extradition country' is any country, other than New Zealand, declared as such by regulations. The Regulations (Section 3) amend the previous regulations by removing the specific list of countries in Schedule 2 and instead declaring that any country for which the International Convention for the Suppression of the Financing of Terrorism 1999 (the Convention) is in force is an 'extradition country'. This change ensures that Australia's extradition practices under the Act align with its international obligations under the Convention.
The Regulations impose several obligations on parties and entities governed by the Act. Firstly, they require that any country that becomes a party to the Convention be recognised as an 'extradition country' under the Act. This is achieved by referring to the Convention directly rather than maintaining a list of countries, thereby simplifying administrative processes. Secondly, the Regulations mandate that extradition procedures under the Act must adhere to the modern 'no evidence' procedure, where countries are not required to present evidence to establish a prima facie case against the person sought. Furthermore, the Regulations reiterate the various safeguards outlined in the Act, 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.
Breach of the provisions within these Regulations can lead to significant civil or criminal consequences. For example, if an extradition request is made contrary to the safeguards provided in the Act, such as attempting to extradite an individual for reasons prohibited by the Act (e.g., political offences, death penalty, or torture), this could result in refusal of the extradition request. Additionally, any misuse of the extradition process to circumvent these safeguards could lead to legal actions against the involved parties. While the Regulations themselves do not specify maximum penalties, breaches of the Act, which the Regulations support, can result in penalties as prescribed by other relevant laws, including potential fines or imprisonment.
In conclusion, the Extradition (Suppression of the Financing of Terrorism) Amendment Regulations 2009 (No. 1) are designed to streamline the process of recognising 'extradition countries' under the Act, ensuring they align with Australia's international obligations under the Convention. The Regulations impose clear obligations on the entities involved in the extradition process to adhere to the procedures and safeguards outlined in the Act. Any failure to comply with these obligations can lead to serious legal repercussions, underscoring the importance of adhering to the stipulated provisions.