EXPLANATORY STATEMENT
Select Legislative Instrument 2010 No. 163
Issued by the authority of the Minister for Home Affairs
Extradition Act 1988
Extradition (Uruguay) Regulations 2010
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.
Section 5 of the Act defines an ‘extradition country’ to include a country that is declared by regulations to be an extradition country. Paragraph 11(1)(a) 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 bilateral extradition treaty between Australia and that country, being a treaty a copy of which is set out in the regulations.
The Regulations give effect in Australian domestic law to the Treaty on Extradition between Australia and the Oriental Republic of Uruguay, signed at Montevideo on 7 October 1989 (the Treaty). A copy of the Treaty is set out in Schedule 1 of the Regulations. The Regulations apply the Act to requests received from Uruguay subject to the Treaty.
The Treaty modernises the extradition relationship between Australia and Uruguay from current arrangements, which are based on an inherited treaty and protocol from 1884 and 1891 respectively. The Treaty adopts the ‘no evidence’ standard for documentation provided in support of any extradition requests. This means that any country requesting extradition would not need to include actual evidence in support of the offence.
As with all of Australia’s extradition treaties, the Treaty contains a range of internationally accepted human rights safeguards. Under the Treaty, extradition can be refused for offences where the death penalty may apply and where the offence carries a punishment of the kind referred to in Article 7 of the International Covenant on Civil and Political Rights (including torture). Extradition may also be refused if the request relates to a political offence, a purely military offence, or the request has been made for the purpose of prosecuting or punishing a person on account of his or her race, religion, nationality or political opinions.
The Regulations commence on the day on which the Treaty enters into force. Article 19(1) of the Treaty provides that the Treaty will enter into force thirty days after the date on which the Contracting States have notified each other in writing that their respective requirements for the entry into force of the Treaty have been complied with.
Consultation outside the Australian Government was not undertaken for this legislative instrument as it relates to criminal justice and law enforcement matters and does not have direct, or substantial indirect, effects on business and does not restrict competition. The Treaty was the subject of a public hearing by the Joint Standing Committee on Treaties, which recommended binding treaty action be taken in Report 10 tabled on 20 October 1997.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulations are detailed in the Attachment.
ATTACHMENT
Details of the Extradition (Uruguay) Regulations 2010)
Regulation 1 – Name of Regulations
This regulation provides that the title of the Regulations is the Extradition (Uruguay) Regulations 2010.
Regulation 2 – Commencement
This regulation provides that the Regulations commence on the date the Treaty enters into force.
Regulation 3 – Definition
This regulation defines terms used in the Regulations.
Regulation 4 – Declaration that Uruguay is an extradition country
This regulation declares Uruguay to be an extradition country.
Regulation 5 – Application of Act
This regulation provides that the Extradition Act 1988 applies to Uruguay subject to the Treaty.
Schedule 1 – Treaty on Extradition between Australia and the Oriental Republic of Uruguay
This schedule contains the text of the Treaty.
Overview
The Extradition (Uruguay) Regulations 2010 were introduced to facilitate the implementation of the Treaty on Extradition between Australia and the Oriental Republic of Uruguay, which was signed on 7 October 1989. These regulations, issued under the authority of the Minister for Home Affairs, serve to apply the Extradition Act 1988 to extradition requests received from Uruguay, subject to the terms and conditions of the Treaty. By enacting these regulations, Australia modernises its extradition relationship with Uruguay, replacing older arrangements based on an 1884 treaty and an 1891 protocol. The policy objective is to ensure that extradition processes between the two countries adhere to internationally accepted standards, including the adoption of the 'no evidence' standard for documentation and the inclusion of human rights safeguards, such as the refusal to extradite for offences that may result in the death penalty or where the offence is considered a violation of fundamental human rights. The regulations are designed to streamline the extradition process while upholding the integrity of both countries' legal systems and human rights commitments.
Scope and Application
The Extradition (Uruguay) Regulations 2010 apply the Extradition Act 1988 to the Oriental Republic of Uruguay, designating Uruguay as an extradition country under Australian law. These Regulations were made under section 55 of the Extradition Act 1988, which empowers the Governor-General to make regulations necessary to implement the Act. They give effect to the Treaty on Extradition between Australia and Uruguay, signed in 1989, which modernises the extradition relationship between the two countries. The Regulations commence on the day the Treaty enters into force, which is thirty days after both countries notify each other that their domestic requirements for the Treaty's implementation have been met. The Regulations apply the Extradition Act 1988 to extradition requests from Uruguay, subject to the terms and conditions outlined in the Treaty, which includes human rights safeguards and specific exclusions such as offences that may result in the death penalty or are considered political or purely military offences.
Key Provisions
The Extradition (Uruguay) Regulations 2010 primarily serve to implement the Treaty on Extradition between Australia and Uruguay, signed in 1989, within Australian domestic law (Regulation 4). Under Regulation 5, the Extradition Act 1988 (the Act) is applied to Uruguay, subject to the provisions of the Treaty (Schedule 1). This means that any extradition requests from Uruguay will be governed by the Act as modified by the Treaty. Regulation 2 ensures that the Regulations commence on the date the Treaty enters into force, which is defined in Article 19(1) of the Treaty as thirty days after the Contracting States notify each other in writing that their respective requirements for the entry into force have been met.
The Act imposes several obligations and requirements on the parties involved. For instance, the Act requires that any extradition request from Uruguay must comply with the "no evidence" standard, meaning that actual evidence supporting the offence need not be included (Schedule 1). Additionally, extradition can be refused if the offence in question may result in the death penalty or if it constitutes a political, purely military offence, or if the request is made for the purpose of prosecuting or punishing a person on account of their race, religion, nationality, or political opinions (Schedule 1). These safeguards ensure that extradition requests are processed in accordance with internationally accepted human rights standards.
In terms of consequences for breach, the Act does not explicitly outline specific offences, penalties, or consequences within the Regulations themselves. However, breaches of the Extradition Act 1988 or the Treaty could potentially lead to legal actions under Australian law. For example, if a person is unlawfully extradited or if the conditions for extradition are not properly followed, this could result in legal challenges or actions under domestic or international law. While the Regulations do not specify maximum penalties, any breaches of the Act could lead to civil or criminal penalties as provided under the general provisions of Australian law, which may include fines and imprisonment depending on the nature and severity of the breach.