Extradition (Torture) Amendment Regulations 2010 (No. 1)

Overview

The Extradition (Torture) Amendment Regulations 2010 (No. 1) were enacted to address the need for updating the definition of the term ‘Convention’ in the Extradition (Torture) Regulations 2009. These regulations were introduced by the Minister for Home Affairs and are a legislative instrument under the Legislative Instruments Act 2003. They were designed to ensure that Australia complies with its international obligations under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984, particularly by providing an updated definition of the term ‘Convention’ in light of the repeal of the Crimes (Torture) Act 1988. The regulations also provide a reference to the text of the Convention, now accessible through the Australian Treaties Library on the AustLII website. The amendment did not require consultation as it did not substantially alter existing arrangements and had no direct or indirect effect on business.

Scope and Application

The Extradition (Torture) Amendment Regulations 2010 (No. 1) pertains to the Extradition Act 1988 and its application concerning extradition countries under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984. This regulation specifically amends the Extradition (Torture) Regulations 2009 by updating the definition of the term ‘Convention’ and clarifying where the text of the Convention can be accessed, now indicated as the Australian Treaties Library on the AustLII website. The Extradition Act applies to any person who is wanted for extradition from Australia or from an Australian territory, as well as to any country that is party to the Convention and has been declared an extradition country through regulations. The geographic reach of the Act is national, as Australia is a party to the Convention and the Act applies across all states and territories in accordance with the multilateral treaty. There are no stated exclusions or exemptions within these Regulations, and any limitations, conditions, exceptions, or qualifications are addressed within the multilateral extradition treaty itself. The application of the Act can be extended or restricted through subordinate instruments, as specified in the Act and the Regulations.

Key Provisions

The Extradition (Torture) Amendment Regulations 2010 (No. 1) (the Regulations) are amendments to the Extradition (Torture) Regulations 2009, which ensure Australia can meet its obligations under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (the Convention) (Regulation 3). Regulation 1 provides that the title of the Regulations is the Extradition (Torture) Amendment Regulations 2010 (No. 1). Regulation 2 states that the Regulations commenced on the day after they were registered on the Federal Register of Legislative Instruments. The Regulations amend the definition of ‘Convention’ in the Principal Regulations to ensure the term ‘Convention’ means the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the United Nations General Assembly on 10 December 1984. Regulation 4 amends the note to regulation 5, which indicates where to access the text of the Convention, to state that the text of the Convention is accessible through the Australian Treaties Library on the AustLII website. The Regulations also correct a minor drafting error in the Principal Regulations by ensuring the definition of ‘Convention’ is consistent with the text of the Convention. The Regulations impose obligations on parties or entities governed by them to ensure compliance with the Convention. The main obligation is to ensure that Australia can meet its obligations under the Convention, which include not extraditing a person to another country where there are substantial grounds for believing that the person would be in danger of being subjected to torture (s. 3A of the Act). The Regulations also require the definition of ‘Convention’ to be updated to reflect the current text of the Convention, ensuring consistency and accuracy in the application of the Extradition Act 1988 (the Act) to extradition matters involving torture. The Regulations do not introduce new offences or penalties; however, failure to comply with the Act and the Convention may result in civil or criminal consequences. Under the Act, any person who is extradited in contravention of the Act may bring an action in any court for damages for any loss or damage suffered as a consequence of the extradition (s. 66 of the Act). Additionally, any person who is unlawfully arrested or detained in contravention of the Act may also bring an action for damages (s. 66 of the Act). The maximum penalty for breaching the Act is imprisonment for 10 years or a fine of 5,000 penalty units, or both (s. 67 of the Act). Under the Convention, a State Party that has reason to believe that an act of torture has been committed in any territory under its jurisdiction is obliged to submit a report to the Committee Against Torture (Article 20 of the Convention). Failure to do so may result in sanctions or other measures by the Committee. In summary, the Extradition (Torture) Amendment Regulations 2010 (No. 1) update the definition of ‘Convention’ in the Extradition (Torture) Regulations 2009 to reflect the current text of the Convention. The Regulations ensure that Australia can meet its obligations under the Convention by declaring 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 the Act. The Regulations impose obligations on parties or entities governed by them to ensure compliance with the Convention and the Act, with failure to comply potentially resulting in civil or criminal consequences.