EXPLANATORY STATEMENT
Subject - Extradition Act 1988
Extradition (Swiss Confederation) Regulations 1990 No. 135
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. Paragraph 11(1)(a) of the Act provides that regulations may apply the Act to a specified extradition country to give effect to a bilateral extradition treaty.
On 29 July 1988, the then Attorney-General signed a Treaty between Australia and Switzerland on Extradition (the Treaty). A copy of the English text of the Treaty is set out in the Schedule to the Extradition (Swiss Confederation) Regulations (the Regulations).
Article 19, paragraph 2, of the Treaty provides that on its entry into force former bilateral treaties with regard to extradition relations between Australia and the Swiss Confederation shall, except in relation to current proceedings, cease to have effect.
Article 19, paragraph 1, of the Treaty provides for each Contracting Party to notify the other in writing of the accomplishment of the procedure required for the entry into force of the Treaty and for the Treaty to enter into force one hundred and eighty days after the date of receipt of such notification. The Swiss Confederation has recently advised Australia that the processes necessary under its law to ratify the Treaty have been completed. Australia’s requirement for entry into force of the Treaty is the making of Regulations applying the Act to the Swiss confederation subject to the Treaty.
Details of the Regulations are as follows:
Clause 1 is a citation provision.
Clause 2 provides for the Regulations to commence on 1 January 1991 (on the basis that the Swiss Confederation will be notified of the making of the Regulations one hundred and eighty days beforehand in accordance with Article 19, paragraph 1 of the Treaty).
Clause 3 is an interpretation provision.
Clause 4 declares the Swiss Confederation to be an extradition country for the purposes of the Act.
Clause 5 applies the Act to the Swiss Confederation subject to the Treaty which is reproduced as a Schedule to the Regulations.
Overview
The Extradition (Swiss Confederation) Regulations 1990, made under the Extradition Act 1988, address the need to facilitate the extradition of individuals between Australia and Switzerland by formalising the legal framework that governs the process. Enacted in response to the Extradition Treaty signed between Australia and Switzerland on 29 July 1988, these regulations were designed to implement the provisions of the treaty, which was aimed at replacing existing extradition arrangements with a new, comprehensive bilateral agreement. The Regulations were enacted by the relevant authority, presumably the Governor-General, in accordance with the authority granted by Section 55 of the Extradition Act 1988. These regulations aim to ensure that the Extradition Act applies to the Swiss Confederation in a manner consistent with the terms of the Treaty, thereby enabling the effective execution of the extradition process between the two countries.
The Extradition (Swiss Confederation) Regulations 1990 clarify the legal status of Switzerland as an extradition country under Australian law and apply the Extradition Act to Switzerland, subject to the terms of the Treaty. These regulations are set to commence on 1 January 1991, aligning with the Treaty's requirement for the entry into force after the requisite period following mutual notification of the completion of domestic ratification processes. The regulations provide for the necessary interpretation and application of the Act to the Swiss Confederation, ensuring that the extradition process is conducted smoothly and in accordance with the agreed-upon terms.
Scope and Application
The Extradition (Swiss Confederation) Regulations 1990 No. 135 applies the Extradition Act 1988 to the Swiss Confederation in accordance with the Treaty between Australia and Switzerland on Extradition, signed on 29 July 1988. The Regulations came into force on 1 January 1991 and serve to formalise the extradition relationship between the two countries by applying the Act to the Swiss Confederation, subject to the Treaty. The Regulations are intended to facilitate the extradition process between Australia and Switzerland, ensuring that the Act's provisions are implemented in line with the Treaty's stipulations. The Regulations have a clear jurisdictional reach, applying to the extradition of individuals between the two countries as per the terms of the Treaty. Any exclusions, exemptions, or thresholds are contained within the Treaty itself, which is referenced in the Regulations, and these will apply accordingly to the extradition process. The Regulations may be extended or restricted through subordinate instruments made under the authority of Section 55 of the Extradition Act 1988, provided they are not inconsistent with the Act.
Key Provisions
The Extradition (Swiss Confederation) Regulations 1990, made under section 55 of the Extradition Act 1988, set out the legal framework for extradition between Australia and Switzerland. Clause 4 of the Regulations designates the Swiss Confederation as an extradition country, thereby formalising the relationship between the two nations under the Act. Clause 5 applies the provisions of the Act to the Swiss Confederation, subject to the terms of the Extradition Treaty between Australia and Switzerland, which is detailed in the Schedule to the Regulations.
These Regulations impose several obligations on the parties involved. For example, they require Australia to notify Switzerland of the making of the Regulations in accordance with the Treaty's provisions, ensuring the Treaty's entry into force. Once in effect, the Regulations require both countries to adhere to the procedures and standards outlined in the Treaty, including the handling of extradition requests and the transfer of individuals. Both nations must ensure that the processes for extradition comply with the Act and the Treaty, including the legal requirements for surrender and the rights of the individuals involved.
Failure to comply with the obligations and requirements set out in the Extradition (Swiss Confederation) Regulations 1990 may result in legal consequences. Under the Extradition Act 1988, any person who fails to comply with an order or direction made under the Act may be guilty of an offence. The Act provides for penalties including fines and imprisonment, although specific penalties are not detailed in the Regulations themselves but rather in the Act. Additionally, any breach of the Treaty or failure to adhere to the agreed procedures may lead to diplomatic repercussions between Australia and Switzerland, further complicating the legal and administrative processes involved in extradition.