EXPLANATORY STATEMENT
STATUTORY RULES 1989 No 108
Subject- Extradition Act 1988
Extradition (Sweden) Regulations (Amendment)
Section 55 of 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. Paragraph 11(1)(a) provides that regulations may apply the Act to a specified extradition country subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to a bilateral extradition treaty in relation to the country.
A 1985 Protocol to the 1973 Extradition Treaty with Sweden adopted the ‘no evidence’ approach. This further Protocol removes an internal inconsistency which could have led to the purpose of the 1985 Protocol not being achieved.
Details of the proposed Regulations are as follows:
Clause 1 provides for the Regulations to commence on 10 June 1989.
Clause 2 provides that the “Principal Regulations” are the Extradition (Sweden) Regulations.
Clause 3 provides that Regulation 4 of the Principal Regulations is amended such that the application of the Act to Sweden is subject to the terms and condition of the 1973 Extradition Treaty as amended by the 1985 and 1989 Protocols.
Clause 4 provides that the 1989 Protocol will become Schedule 3 to the Principal Regulations.
Overview
The Extradition (Sweden) Regulations (Amendment) Statutory Rules 1989 No 108 were enacted to address an internal inconsistency in the application of the Extradition Act 1988 in relation to extradition treaties with Sweden. This legislative amendment was introduced to ensure that the Act aligns with the terms and conditions of the 1973 Extradition Treaty with Sweden as amended by the 1985 and 1989 Protocols, particularly adopting the ‘no evidence’ approach. The Australian Parliament enacted these regulations to facilitate the smooth operation of the extradition process with Sweden, ensuring that it is consistent with the bilateral agreements and adheres to the legal standards set forth in the amended treaties. The policy objective of these amendments is to maintain the integrity and effectiveness of the extradition process between Australia and Sweden by removing any discrepancies that could potentially hinder cooperation in the exchange of individuals for the purpose of prosecution or punishment.
Scope and Application
The Extradition (Sweden) Regulations (Amendment) Statutory Rules 1989 No 108 amends the Extradition (Sweden) Regulations under the Extradition Act 1988 to align with the 1985 Protocol to the 1973 Extradition Treaty with Sweden, which adopts the ‘no evidence’ approach. This amendment ensures that the application of the Extradition Act 1988 to Sweden is governed by the terms and conditions of the 1973 Extradition Treaty, as modified by the 1985 and 1989 Protocols. The Regulations apply to any person or entity involved in extradition proceedings between Australia and Sweden, ensuring that the extradition process adheres to the agreed-upon legal standards and protocols. These Regulations extend to any conduct or transactions that fall within the scope of the Extradition Act 1988 and the relevant treaties, with specific amendments affecting only those parties and situations governed by the amended extradition arrangements with Sweden. The changes are designed to remove any internal inconsistencies and ensure that the objectives of the treaties are fully realised within the Australian legal framework.
Key Provisions
The Extradition (Sweden) Regulations (Amendment) Statutory Rules 1989 No 108 primarily amend existing regulations under the Extradition Act 1988 to align with the 1989 Protocol to the 1973 Extradition Treaty with Sweden. These amendments ensure the application of the Act to Sweden is consistent with the terms and conditions of the updated treaty, including the adoption of the 'no evidence' approach as per the 1985 Protocol (clause 3). The Regulations also formalise the 1989 Protocol as Schedule 3 to the Principal Regulations (clause 4). By doing so, the amendments aim to remove any internal inconsistencies that could have impeded the enforcement of the 1985 Protocol.
Under these amended regulations, the Act’s application to Sweden is governed by the 1973 Extradition Treaty as modified by the 1985 and 1989 Protocols. This means that any extradition requests or proceedings between Australia and Sweden must comply with the updated terms and conditions as set out in these Protocols. The regulations impose obligations on relevant authorities, including law enforcement and judicial bodies, to adhere to the terms of these treaties when processing extradition requests. This includes ensuring that the 'no evidence' approach is properly implemented, which requires that an individual cannot be extradited if there is insufficient evidence to support a charge.
Breaches of the Extradition Act 1988 or the amended regulations can result in various legal consequences. The Act provides for both civil and criminal penalties for non-compliance. For example, failure to comply with extradition requests or procedural requirements could lead to criminal charges, with potential penalties including fines and imprisonment. The specific penalties are not detailed in the explanatory statement, but generally, the Act allows for fines up to a substantial amount and imprisonment for terms that can vary depending on the severity of the breach. Additionally, civil actions could be pursued for damages resulting from improper extradition procedures.
In summary, these amendments to the Extradition (Sweden) Regulations are designed to ensure that the Extradition Act 1988 operates effectively in line with the bilateral treaty obligations with Sweden. The regulations impose clear obligations on relevant authorities to adhere to the updated terms of the extradition treaties, including the adoption of the 'no evidence' approach. Non-compliance with these obligations can result in significant civil and criminal penalties, reinforcing the importance of adhering to the regulations and the underlying treaties.