Commonwealth Numbered Regulations - Explanatory Statements

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Issued by the Authority of the Minister for Justice and Customs

Extradition Act 1988

Extradition (Commonwealth Countries) Amendment Regulations 2000 (No. 1)

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. The Extradition (Commonwealth Countries) Regulations (the Regulations) contained, prior to the coming into force of the amending Regulations, a number of anomalies. The amending Regulations have rectified those anomalies.

Subsection 19(2) of the Act provides that a person is only eligible for extradition from Australia if, amongst other things, the country requesting extradition has produced certain documents to the magistrate conducting the extradition hearing. Some of those documents are set out in the Act and others are set out in the Regulations. Those set out in the Act differ according to whether the person sought is an accused person or a convicted person - in other words, a person wanted for prosecution or a person who has already been convicted and is wanted for sentencing. The Regulations did not, prior to the amending Regulations coming into force, differentiate in this way. The same documents were required irrespective of whether the person sought was an accused or convicted person.

The amending Regulations differentiate in the same way as the Act so that certain documents are now not required to be produced to a magistrate where the person sought is a convicted person. Those particular documents are the ones described in subregulations 6(1) and 6(4). Subregulation 6(1) requires the production of documents which allow the 'sufficient evidence' test to be satisfied (in other words, evidence establishing a prima facie case against the person sought). Subregulation 6(4) (which applies in relation to different countries from those to which subregulation 6(1) applies) requires the production of documents describing the available evidence against the person sought.

The amending Regulations have, therefore, amended subregulation 6(1) (proposed regulation 3) and subregulation 6(4) (proposed regulation 4) so that the requirement to produce the documents described in each subregulation is only applicable where the person sought is an accused person.

As stated above, subregulation 6(1) requires the production of documents which allow the 'sufficient evidence test' to be satisfied. Prior to the amending regulations coming into force, subregulation 6(2) provided that the reference to the 'sufficient evidence test' was to be read as a reference to the test referred to in paragraph 11 (5)(a) of the Act. However, subsection 11 (4) of the Act provides that the expression 'sufficient evidence test' is to be read as the 'prima facie evidence test' which is defined in paragraph 11(5)(b) of the Act. To clarify and simplify matters, the proposed Regulations have amended subregulations 6(1) and 6(2) by replacing the expression 'sufficient evidence test' with the term 'prima facie evidence test'. The reference in subregulation 6(2) to paragraph 11(5)(a) of the Act has accordingly been changed to paragraph 11(5)(b) (proposed regulation 3).

Subregulation 6(1) applies to the countries listed in Part 1 of the Schedule to the Regulations. Subregulation 6(4) applies to the countries listed in Part 2 of the Schedule. Subregulation 6(4) requires a country requesting a person's extradition to provide a description of the person and details of his or her identity, nationality and whereabouts. Prior to the coming into force of the amending Regulations, there was no such requirement in subregulation 6(1). The proposed regulations have therefore amended subregulation 6(1) to insert such a requirement (proposed regulation 3).

The Regulations commenced on gazettal.

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