Commonwealth Numbered Regulations - Explanatory Statements

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Issued by the Authority of the Attorney-General and Minister for Justice

Extradition Act 1988

Extradition (Hong Kong) Regulations

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. 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. In section 5 of the Act "extradition country" is defined as including, inter alia, a territory of a country or a territory for the international relations of which a country is responsible if that territory is declared by the regulations to be an extradition country.

The Regulations give effect in Australian domestic law to the Agreement for the Surrender of Accused and Convicted Persons between the Government of Australia and the Government of Hong Kong, signed at Hong Kong on 15 November 1993 ("the Agreement"). The text of this Agreement was tabled in the House of Representatives on 29 June 1994 and in the Senate on 23 August 1994. In accordance with the Government's policy of greater parliamentary involvement in Australia's treaty-making processes, a National Interest Analysis ("NIA") for the Agreement, prepared by the AttorneyGeneral's Department, was tabled in Parliament on 18 June 1996. (The NIA notes the reasons why Australia should become a party to the Agreement.)

On 7 May 1997 the Government of Hong Kong notified Australia, in accordance with Article 21 of the Agreement, that its domestic requirements for the Agreement's entry into force had been complied with. Australia's requirement for the Agreement's entry into force is the making of the proposed Regulations. The Agreement enters into force 30 days after the date on which the Parties have notified each other that they have complied with their respective requirements for the entry into force of the Agreement. The Government of Hong Kong will be notified on 30 May 1997 that Australia's requirements for the Agreement's entry into force have been complied with. Thirty days after that date, that is on 29 June 1997, the Agreement will enter into force. Accordingly, 29 June 1997 is also the commencement date of the Regulations.

Extradition between Australia and Hong Kong was previously conducted under the Commonwealth Scheme for the Rendition of Fugitive Offenders ("die London Scheme"), an arrangement of less than treaty status in relation to extradition among Commonwealth countries and their dependent territories. The London Scheme is given effect in Australia by the Extradition (Commonwealth Countries) Regulations, made under the Extradition Act 1988.

On its reversion to Chinese sovereignty on 1 July 1997 Hong Kong will cease to be part of the Commonwealth and hence will no longer come within the scope of the London Scheme. The Agreement has been negotiated in order to establish a continuing extradition relationship with Hong Kong after 1 July 1997. (Australia has no bilateral extradition relationship with the People's Republic of China.) The Chinese Government has consented to the negotiation and conclusion of the Agreement by Hong Kong.

From the commencement of the Regulations, the Extradition Act will apply to Hong Kong subject to the Agreement. The Extradition (Commonwealth Countries) Regulations (Amendment) will simultaneously omit Hong Kong from the Schedule to the Extradition (Commonwealth Countries) Regulations, so that the Extradition Act will no longer apply to Hong Kong subject to the limitations, conditions, exceptions or qualifications set out in those Regulations.

As with all of Australia's extradition treaties, the Agreement contains all the internationally accepted human rights safeguards which are now a part of modem extradition. Under the Agreement, extradition will not be permitted where the fugitive is sought for or in connection with his or her race, religion, nationality or political opinions or would be tried, sentenced or detained for a political offence. In addition, extradition may be refused where the fugitive could be liable to the death penalty, unless satisfactory assurances are given by the requesting party that the death penalty will not be imposed or, if imposed, will not be carried out.

Unlike most other Australian extradition treaties, the Agreement requires presentation of a prima facie case by the requesting party (which is also a requirement of the London Scheme) and permits extradition only in respect of a list of offences. The list has been drawn up to include all offences for which extradition is currently considered appropriate.

Details of the Regulations are as follows:

Regulation 1 is a citation provision.

Regulation 2 provides for the Regulations to commence on 29 June 1997, which is the date on which it is planned the Agreement will come into force.

Regulation 3 is a definition provision.

Regulation 4 declares Hong Kong to be an extradition country.

Regulation 5 provides that the Act applies in relation to Hong Kong subject to the Agreement for the Surrender of Accused and Convicted Persons between the Government of Australia and the Government of Hong Kong.

The Schedule to the proposed Regulations contains the text of the Agreement for the Surrender of Accused and Convicted Persons between the Government of Australia and the Government of Hong Kong, done at Hong Kong on 15 November 1993.

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