Extradition (Traffic in Narcotic Drugs and Psychotropic Substances) Regulations (Amendment) 1998 No. 27
EXPLANATORY STATEMENT
STATUTORY RULES 1998 No. 27
Issued by the Authority of the Minister for Justice
Extradition Act 1988
Extradition (Traffic in Narcotic Drugs and Psychotropic Substances) Regulations (Amendment)
Section 55 of the Extradition Act 1988 ("the Act") provides that the Governor-General may make regulations 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 Subsection 11 (1A) of the Act 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 multilateral treaty relating wholly or partly to extradition to which both Australia and that country are parties. Subsection 11 (1B) provides that regulations may be made under both subsection 11 (1) (which provides for the making of regulations implementing bilateral extradition treaties and arrangements) and subsection 11 (1A) in relation to the same country.
The Extradition (Traffic in Narcotic Drugs and Psychotropic Substances) Regulations ("the Convention Regulations") ensure that Australia can fulfil its extradition obligations under the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic: Substances ("the Convention"), the text of which is set out in the Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990. Australia's obligations under the Convention include obligations to extradite in certain circumstances, persons accused of offences listed in the Convention. The Convention Regulations apply the Act to all countries listed in the Schedule, being those countries (other than Australia) which were Parties to the Convention when the Convention Regulations were made, so as to permit extradition for Convention offences.
The purpose of the Extradition (Traffic in Narcotic Drugs and Psychotropic Substances) Regulations (Amendment) ("the Regulations") is to ensure that Australia can fulfil its extradition obligations under the Convention in relation to countries which have become Parties since the Convention Regulations were made. To this end the amending Regulations replace the Schedule in the current Regulations with a new Schedule containing an updated list of Parties.
By way of background, the internationally accepted human rights safeguards which are incorporated in the Act and in all Australia's bilateral extradition treaties apply equally to extradition under the Convention. Further, as required by the Act, Australia may refuse extradition under the Convention where the fugitive could be liable to the death penalty, unless an undertaking is given by the requesting Party that the death penalty will not be imposed or, if imposed, will not be carried out. This is ensured by Article 6, paragraph 5, of the Convention, which provides that "Extradition shall be subject to the conditions provided for by the law of the requested Party or by applicable extradition treaties, including the grounds upon which the requested Party may refuse extradition".
Details of the Regulations are as follows:
Regulation 1 provides that the Regulations commence upon gazettal.
Regulation 2 provides that the Convention Regulations are amended as follows.
Regulation 3 provides that a note following subregulation 5 (3) of the Convention Regulations is amended to correct a terminological error.
Regulation 4 provides that the Schedule to the Convention Regulations is omitted and sets out a new Schedule which is substituted for it. The substitute Schedule lists all known current Parties to the Convention other than Australia.
Overview
The Extradition (Traffic in Narcotic Drugs and Psychotropic Substances) Regulations (Amendment) 1998 No. 27 was enacted to address the need for Australia to fulfil its obligations under the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. This legislative amendment was necessary to update the list of countries that are Parties to the Convention, thereby ensuring that Australia can extradite individuals accused of offences listed in the Convention to these countries. The Extradition Act 1988, enacted by the Commonwealth Parliament, provides the framework within which these regulations operate. The policy objective is to maintain Australia's compliance with international obligations and to facilitate the extradition of individuals involved in the illicit traffic of narcotic drugs and psychotropic substances across recognised jurisdictions.
Scope and Application
The Extradition (Traffic in Narcotic Drugs and Psychotropic Substances) Regulations (Amendment) 1998 No. 27 amends the Extradition (Traffic in Narcotic Drugs and Psychotropic Substances) Regulations to ensure that Australia can fulfil its extradition obligations under the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances in relation to countries that have become Parties to the Convention since the original Regulations were made. The Regulations apply to the extradition of individuals accused of offences listed in the Convention and pertain to all countries, other than Australia, that are Parties to the Convention. These Regulations amend the Schedule of the Convention Regulations to include an updated list of countries that are Parties to the Convention. The purpose of this amendment is to allow Australia to meet its obligations under the Convention, ensuring that it can extradite individuals accused of certain offences to and from these countries. The Regulations also ensure that Australia may refuse extradition where the fugitive could be liable to the death penalty, unless a specific undertaking is provided by the requesting Party.
Key Provisions
The Extradition (Traffic in Narcotic Drugs and Psychotropic Substances) Regulations (Amendment) 1998 No. 27 primarily amends the existing Convention Regulations by updating the list of countries to which the regulations apply, thereby ensuring Australia’s compliance with its obligations under the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. Regulation 1 specifies that the Regulations commence upon gazettal, making them effective immediately upon being published in the Commonwealth Gazette. Regulation 2 provides for the amendment of the Convention Regulations, updating the list of countries, while Regulation 3 corrects a terminological error in a note following subregulation 5(3) of the Convention Regulations. Regulation 4 omits the original Schedule of the Convention Regulations and replaces it with a new Schedule that lists all known current Parties to the Convention, excluding Australia.
The primary obligations imposed by these Regulations are for Australia to ensure that it can meet its international obligations under the Convention, particularly in relation to the extradition of individuals accused of offences listed in the Convention. The Regulations apply the Extradition Act 1988 to all countries listed in the updated Schedule, facilitating extradition for Convention offences under the Act. By incorporating this updated list, the Regulations reflect the evolving nature of international treaties and the need for Australia to adapt its extradition practices accordingly.
Failure to comply with the requirements set out in the Extradition Act 1988 and the Convention Regulations can lead to both civil and criminal consequences. While specific offences and penalties are not detailed within these Regulations, breaches of the Extradition Act can result in significant penalties, including fines and imprisonment. Additionally, under the Convention itself, countries are obligated to take appropriate measures to ensure the implementation of its provisions, including the extradition of individuals accused of serious offences related to the illicit trafficking of drugs and psychotropic substances.
In terms of human rights safeguards, the Regulations ensure that Australia adheres to internationally accepted standards when considering extradition requests. Importantly, Australia may refuse extradition under the Convention if the individual could face the death penalty, unless the requesting country provides an undertaking that the death penalty will not be imposed or carried out. This reflects the balance between international obligations and domestic legal principles, ensuring that Australia’s extradition practices comply with both its international commitments and its domestic legal framework.