Extradition (United States of America) Regulations (Amendment) 1992 No. 394
EXPLANATORY STATEMENT
Statutory Rules 1992 No. 394
Issued by the authority of the Attorney-General
Extradition Act 1988
Extradition (United States of America) Regulations (Amendment)
Section 55 of the Extradition Act 1988 (the Act) provides that the Governor-General may make regulations 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. Section 11 of the Act provides that regulations may apply the Act to a specified extradition country to give effect to a bilateral extradition treaty between Australia and that country.
An extradition treaty between Australia and the United States of America was signed on 14 May 1974 (the Treaty). The Treaty is given effect by the Extradition (United States of America) Regulations made on 24 November 1988 (the principal regulations). Although the Treaty has worked well, both countries recognised the need to modernise it in the light of international developments in extradition. To this end, a Protocol to the Treaty was signed on 4 September 1990 at Seoul (the Protocol).
The Protocol amends the Treaty and is designed to assist the smooth working of the extradition relationship between Australia and the United States of America. The Protocol has two principal effects on the Treaty. First, it modifies the evidentiary standard so as to simplify the documentation required to accompany an extradition request. Secondly, it removes the specific list of extraditable offences and provides instead for the surrender of persons for offences punishable under the laws of both countries by imprisonment for at least, one year.
The Protocol also contains new provisions on the seizure and surrender of property to assist both countries obtain evidence required for the prosecution of extradited persons.
Article 17 of the Protocol provides that it comes into force on the date on which the Contracting Parties exchange written notification that they have complied with their respective requirements for the entry into force of the Protocol. The United States of America recently advised Australia that it has complied with the requirements under its law to bring the Protocol into effect. Australia's requirement for the entry into force of the Protocol is to make Regulations which amend the principal regulations by applying the Act to the United States of America subject to the Treaty as amended by the Protocol.
The Regulations will amend the principal regulations by applying the Act to the United States of America subject to the Treaty as amended by the Protocol.
Details of the Regulations are as follows:
Regulation 1 provides for the Regulations to commence on 21 December 1992 which is the date the Protocol comes into effect between Australia and the United States of America on the basis that the exchange of the necessary written notification between Australia and the United States of America takes place on the same day in accordance with Article 17 of the Protocol.
Regulation 2 amends the principal regulations as set out in the Regulations.
Regulation 3 omits that part of the principal regulations which refers to the Treaty as being set out in the Schedule to the principal regulations and substitutes instead a provision which amends the Treaty now set out in Schedule 1 by the Protocol set out in Schedule 2 of the Regulations. The effect of this Regulation is to apply the Act to the United States of America subject to the Treaty as amended by the Protocol.
Regulation 4 omits the term "Schedule" in the principal regulations which embodied the Treaty and substitutes that term with "Schedule 1".
Regulation 5 provides for a new Schedule 2, which embodies the Protocol.
Overview
The Extradition (United States of America) Regulations (Amendment) 1992 No. 394, issued under the authority of the Attorney-General, amends the Extradition Act 1988 to modernise the extradition treaty between Australia and the United States of America. This amendment addresses the need to update the existing treaty in light of international developments in extradition. The primary purpose of the amendment is to implement a Protocol to the Treaty, signed on 4 September 1990, which simplifies the evidentiary standards for extradition requests and expands the range of extraditable offences to include those punishable by imprisonment for at least one year under the laws of both countries. Additionally, the Protocol introduces new provisions concerning the seizure and surrender of property to aid in the prosecution of extradited individuals. These regulations ensure that Australia complies with its requirements for the entry into force of the Protocol, thereby facilitating the smooth operation of the extradition relationship with the United States of America.
Scope and Application
The Extradition (United States of America) Regulations (Amendment) 1992 No. 394 applies to the procedures and requirements for the extradition of individuals between Australia and the United States of America as specified under the Extradition Act 1988 and the Extradition (United States of America) Regulations 1988. These Regulations amend the existing extradition framework to reflect the changes and updates introduced by the Protocol to the Extradition Treaty signed on 4 September 1990 at Seoul. The Regulations are made under the authority of the Attorney-General and are intended to modernise the extradition process in light of international developments and to facilitate the effective implementation of the Treaty as amended by the Protocol. The Regulations will come into effect on 21 December 1992, the date on which the Protocol is set to take effect between the two countries. These Regulations apply to all persons who are subject to extradition requests under the Treaty as amended by the Protocol, including those who are sought for prosecution or punishment of offences under the laws of either country. The Regulations also apply to the relevant authorities and officials in both Australia and the United States of America involved in the extradition process. The scope of the Regulations is limited to the specific amendments outlined in the Regulations, which include updating the evidentiary standards and removing the specific list of extraditable offences in favour of a broader category of offences punishable by imprisonment for at least one year.
Key Provisions
The Extradition (United States of America) Regulations (Amendment) 1992 No. 394 are designed to update the existing extradition framework between Australia and the United States of America in accordance with a Protocol signed on 4 September 1990. Regulation 1 specifies the commencement date of these regulations, which is set for 21 December 1992, the same day the Protocol comes into effect, contingent on the exchange of written notifications between Australia and the United States. Regulation 2 details the amendments to the principal regulations, thereby updating the existing extradition framework to align with the updated Treaty. Regulation 3 replaces the section of the principal regulations that referred to the Treaty with a new provision that applies the Act to the United States subject to the Treaty as amended by the Protocol. This regulation effectively incorporates the Protocol into the existing legal framework. Regulation 4 modifies the term "Schedule" in the principal regulations to "Schedule 1", thereby creating space for the inclusion of the new Protocol. Regulation 5 introduces a new Schedule 2, which contains the text of the Protocol, thus formalising its inclusion in the regulations.
The Act imposes several obligations and requirements on the parties involved in extradition proceedings between Australia and the United States. Under the amended regulations, both countries must adhere to the updated evidentiary standards and procedures outlined in the Protocol. This includes simplifying the documentation required for extradition requests and ensuring that requests pertain to offences punishable by imprisonment for at least one year under the laws of both countries. The Act also mandates that any property seized in connection with the prosecution of extradited persons is surrendered in a manner consistent with the Protocol’s provisions. Both countries are required to notify each other of their compliance with domestic legal requirements for the Protocol's entry into force and to exchange this notification in writing. Furthermore, the Act requires the Australian Government to make the necessary regulatory amendments to bring the Protocol into effect.
Breaches of the provisions set out in the Extradition (United States of America) Regulations (Amendment) 1992 No. 394 may result in both criminal and civil consequences. While the specific penalties for breaches are not detailed within the explanatory statement, under the Extradition Act 1988, individuals or entities that fail to comply with the Act's provisions may face criminal charges. These could include penalties for providing false information in extradition requests, misusing the extradition process, or failing to adhere to the evidentiary standards. In civil terms, individuals who are wrongfully extradited or whose rights are otherwise infringed upon may seek redress through the courts. The exact penalties for criminal offences would be determined based on the specific nature and severity of the breach, as outlined in the broader Extradition Act 1988 and other relevant legislation.