EXPLANATORY STATEMENT
Select Legislative Instrument 2009 No. 266
Issued by the authority of the Minister for Home Affairs
Extradition Act 1988
Extradition (Traffic in Narcotic Drugs and Psychotropic Substances) Regulations 2009
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 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988 (the Convention). The Extradition (Traffic in Narcotic Drugs and Psychotropic Substances) Regulations made in 1992 (the Traffic in Narcotic Drugs and Psychotropic Substances Regulations) declared countries listed in the Schedule of the Traffic in Narcotic Drugs and Psychotropic Substances Regulations to be ‘extradition countries’ for the purposes of the Act. The countries listed in the Schedule were those countries that were a party to the Convention at the time the Traffic in Narcotic Drugs and Psychotropic Substances Regulations were made. The Schedule did not include a number of countries that had become a party to the Convention since the Traffic in Narcotic Drugs and Psychotropic Substances Regulations were made.
The Extradition (Traffic in Narcotic Drugs and Psychotropic Substances) Regulations 2009
(the Regulations) repeal and replace the Traffic in Narcotic Drugs and Psychotropic Substances Regulations. The Regulations 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. 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 that are party to a Convention without listing those countries has been adopted in other regulations. 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, subject to the Convention. The Act applies the modern ‘no evidence’ standard for documentation provided in support of any extradition request. In accordance with this evidentiary standard, countries are not required to provide evidence sufficient to establish a prima facie case that the person committed the offence.
Extradition requests made pursuant to the Regulations are subject to the various safeguards set out in the Act. For example, extradition will not be permitted where the person 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 offence for which the person is requested attracts 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 person 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 (Traffic in Narcotic Drugs and Psychotropic Substances) Regulations 2009 were enacted to streamline the extradition process for countries involved in the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988. These regulations were issued by the Minister for Home Affairs under section 55 of the Extradition Act 1988, which allows for the creation of regulations to support the Act's objectives. The primary policy objective of these regulations is to ensure Australia can meet its international obligations under the Convention by aligning the list of extradition countries with those that are party to the Convention. By referring to the class of countries party to the Convention rather than listing them individually, the regulations simplify administrative processes, ensuring that updates do not require continual amendments to the regulations. The approach of referring to the United Nations website for an up-to-date list of countries party to the Convention has been adopted in other regulations, as permitted by subsection 13(3) of the Legislative Instruments Act 2003.
Scope and Application
The Extradition (Traffic in Narcotic Drugs and Psychotropic Substances) Regulations 2009, made under the Extradition Act 1988, apply to any country that is a party to the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988, thereby ensuring Australia can meet its international obligations under this Convention. The Regulations establish that any country that is a party to the Convention at any given time is an 'extradition country' for the purposes of the Extradition Act, simplifying administrative arrangements by not requiring amendments each time a new country becomes a party to the Convention. These Regulations cover individuals sought for extradition in relation to offences involving trafficking in narcotic drugs and psychotropic substances, and they outline the procedural and evidentiary standards for extradition requests, including the 'no evidence' standard and various safeguards such as prohibitions on extradition for political or military offences, and refusal of extradition if the death penalty is applicable or if the person could be subjected to torture. The Attorney-General retains a discretion to refuse extradition requests, further ensuring compliance with international obligations and domestic legal standards.
Key Provisions
The Extradition (Traffic in Narcotic Drugs and Psychotropic Substances) Regulations 2009 (the Regulations) establish that any country that is a party to the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988 (the Convention) is an 'extradition country' under section 5 of the Extradition Act 1988 (the Act) (section 3). This ensures that Australia is able to meet its international obligations under the Convention. These Regulations, therefore, replace the earlier Extradition (Traffic in Narcotic Drugs and Psychotropic Substances) Regulations made in 1992, which only listed countries that were parties to the Convention at the time. The new approach simplifies administrative arrangements by removing the need to amend the Regulations each time a new country becomes a party to the Convention. The Regulations refer to a note that directs the reader to the United Nations website, which provides an updated list of countries that are parties to the Convention (section 3). Extradition under these Regulations operates in accordance with the Act and the Convention, applying the modern 'no evidence' standard for documentation provided in support of any extradition request (section 4).
The Regulations impose obligations on the parties involved in the extradition process. The Attorney-General must consider the various safeguards set out in the Act before granting an extradition request, such as ensuring that the person is not being sought for reasons of race, religion, nationality, or political opinion, or for a political or military offence. Additionally, extradition must be refused if the offence for which the person is requested attracts 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 if the person could be subjected to torture (section 4). The Attorney-General retains a broad discretion to refuse an extradition request by a country, which can be exercised at any stage of the extradition process (section 4).
Under the Regulations, there are civil and criminal consequences for breaches, although specific offences and penalties are not detailed in the explanatory statement. Generally, breaches of the Extradition Act can result in penalties as prescribed by the Act, which may include fines and imprisonment. The exact penalties depend on the nature and severity of the breach. The Attorney-General may also face legal consequences for improper refusal or grant of extradition requests, including potential judicial review by the courts (section 12). The Regulations aim to ensure compliance with international obligations while maintaining the integrity of the extradition process and protecting the rights of individuals.