EXPLANATORY STATEMENT
Statutory Rules 1990 No 269
Subject - Extradition Act 1988
Extradition (Torture) Regulations
Section 55 of the Extradition Act 1988 (the Act) provides for the Governor-General to make regulations for the purposes of the Act. Paragraph 11(1)(b) provides that the regulations may make provision to the effect that the Act applies partially or conditionally in relation to a specified extradition country.
The purpose of the Extradition (Torture) Regulations (the proposed Regulations) is to ensure that Australia can fulfill the obligations assumed upon becoming a party to the International Convention Against Torture and Other Cruel and Inhuman or Degrading Treatment or Punishment (the Convention) which includes obligations, in certain circumstances, to extradite persons accused of offences listed in the Convention.
The proposed Regulations contain a Schedule listing countries which are parties to the Convention, being those countries to which the Act will apply so as to permit extradition for Convention offences. The Schedule does not, however, list every country party to the Convention. Rather it lists those countries with which Australia has no general extradition relationship and to which Australia will extradite only for the Convention offences.
Where Australia has a general extradition relationship with a country it is already possible to extradite for the Convention offences. There are four categories of country with whom Australia has such general extradition relationships:
1) Where Australia’s extradition relations with a country are based on a treaty “inherited” from the United Kingdom of Great Britain, a multilateral treaty, such as the Convention, operates as a protocol having the effect of including the Convention offences in the list of offences in the inherited treaty for which extradition can be granted.
2) Where Australia’s extradition relationship is governed by a treaty negotiated since 1970 that treaty will already permit extradition for the Convention offences.
3) Where the relationship is based on reciprocity pursuant to the Commonwealth Scheme for the Rendition of Fugitive Offenders Australia can grant extradition for any offence defined as extraditable under our law. All the Convention offences fit within this category.
4) Where the relationship is based on reciprocity pursuant to an individually agreed relationship Australia can grant extradition for any offence defined as extraditable under our law. All the Convention offences fit within this category.
The proposed Regulations will commence upon gazettal.
Details of the proposed Regulations are as follows:
Regulations 1 is a citation provision.
Regulation 2 is an interpretation provision.
Regulation 3 will declare each of the countries listed in the Schedule to the proposed Regulations to be an extradition country.
Regulation 4 will apply the Act to the countries listed in the Schedule to the proposed Regulations subject to the Convention.
Overview
The Extradition (Torture) Regulations were proposed to address the need for Australia to comply with its obligations under the International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Enacted in 1990, these regulations, governed under the Extradition Act 1988, were introduced to facilitate the extradition of individuals accused of torture or related offences to countries that are signatories of the Convention. This was achieved by ensuring that the Extradition Act applies conditionally to specified countries that are party to the Convention but do not have a general extradition relationship with Australia. The objective of these regulations is to enable Australia to meet its international commitments by allowing the extradition of persons accused of torture-related offences to those countries that require it, while ensuring that existing extradition arrangements are not disrupted.
Scope and Application
The Extradition (Torture) Regulations, made under Section 55 of the Extradition Act 1988, aim to ensure that Australia can meet its obligations under the International Convention Against Torture and Other Cruel and Inhuman or Degrading Treatment or Punishment. These Regulations apply to countries listed in the Schedule, which are those with which Australia has no general extradition relationship and to which Australia will extradite only for the Convention offences. The Regulations do not apply to all countries party to the Convention, but rather specifically to those listed in the Schedule. The Regulations extend the Act's application to these listed countries conditionally, permitting extradition only for the Convention offences. The scope of the Regulations is further defined by the categories of countries with which Australia has general extradition relationships, where the Convention offences are already extraditable under existing treaties or arrangements. The Regulations will commence upon gazettal and include provisions for their citation, interpretation, and the declaration of listed countries as extradition countries.
Key Provisions
The Extradition (Torture) Regulations, under section 55 of the Extradition Act 1988, outline specific provisions that apply to the extradition of individuals accused of offences listed under the International Convention Against Torture and Other Cruel and Inhuman or Degrading Treatment or Punishment (the Convention). Regulation 3 identifies particular countries listed in the Schedule as extradition countries for the purposes of these Convention offences. These countries are those with which Australia does not have a general extradition relationship, but to which Australia will extradite only for the specific Convention offences.
The Regulations impose certain obligations on the parties and entities they govern. For instance, Regulation 4 ensures that the Extradition Act 1988 applies to the countries listed in the Schedule, subject to the Convention. This means that the provisions of the Act will govern the extradition process to these countries for Convention offences. Additionally, the Act already covers countries with which Australia has general extradition relationships, meaning that extradition for Convention offences is possible under existing treaties or arrangements.
In terms of breaches and consequences, the Extradition Act 1988 itself includes various offences and penalties. While the proposed Regulations focus primarily on the scope of application, any failure to comply with the Act in the context of extradition would be subject to the existing provisions of the Act. The maximum penalties for offences under the Act can vary, but they generally include substantial fines and imprisonment. For instance, under section 109 of the Act, an offence of non-compliance with the Act could result in a penalty of up to five years imprisonment or a fine of up to 2,100 penalty units, or both. These penalties underscore the seriousness with which the Act treats non-compliance in the extradition process.
In summary, the Extradition (Torture) Regulations, as provided under section 55 of the Extradition Act 1988, specifically target countries without a general extradition relationship with Australia, ensuring that extradition for Convention offences is possible. These Regulations impose obligations on relevant parties to adhere to the Act and the Convention in the extradition process. Any breaches of the Act would result in penalties as outlined in the Act, including fines and imprisonment, reflecting the gravity of non-compliance.