Commonwealth Numbered Regulations - Explanatory Statements

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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.

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