Commonwealth Numbered Regulations - Explanatory Statements

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Statutory Rules 1997 No. 60

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

Extradition Act 1988

Extradition (Republic of Hungary) 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.

The Extradition (Republic of Hungary) Regulations ("the Regulations") give effect in Australian domestic law to the Treaty on Extradition between Australia and the Republic of Hungary, signed at Budapest on 25 October 1995 ("the Treaty"). In accordance with the Government's policy of greater parliamentary involvement in Australia's treaty-making processes, the Treaty was tabled in Parliament, together with a National Interest Analysis (NIA), on 21 May 1996.

On 2 December 1996 the Republic of Hungary notified Australia, in accordance with Article 16 of the Treaty, that its domestic constitutional requirements for the Treaty's entry into force had been complied with. Australia's requirement for the Treaty's entry into force is the making of the Regulations. Tile Treaty enters into force 30 days after the date on which the Contracting States have notified each other that they have complied with their respective requirements for the entry into force of the Treaty. The Republic of Hungary will be notified oil 26 March 1997 that Australia's requirements for the Treaty's entry into force have been complied with. Thirty days after that date, that is on 25 April 1997, the Treaty will enter into force. Accordingly, 25 April 1997 is also the commencement date of the Regulations.

Extradition between Australia and Hungary was previously governed by the Treaty for the Mutual Surrender of Fugitive Criminals concluded between the United Kingdom and Hungary on 3 December 1873 and subsequently amended on 26 June 1901 and 18 September 1936 ("the inherited Treaty"). The inherited Treaty was initially given effect in Australia by British Orders in Council applying the Extradition Acts, 1870 to 1935 (Imp) in the case of Hungary (Orders in Council of 17 March 1874, 1902 No. 737 and 1938 No. 138). Subsequently the operation of the inherited Treaty in Australian law was continued by virtue of section 9 of the former Extradition (Foreign States) Act 1966 and subsection 11 (3) of the Extradition Act 1988. On the commencement of the Regulations applying the Extradition Act to Hungary by virtue of subsection 11 (1) the Act will cease to apply to Hungary by virtue of subsection 11 (3). (For the purposes of international law the Treaty provides, in Article 16 paragraph 2, that on its entry into force the inherited Treaty shall cease to be in force between Australia and Hungary.)

As with all of Australia's extradition treaties the extradition treaty with the Republic of Hungary contains all the internationally accepted human rights safeguards which are now a part of modern extradition. Under the Treaty, 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 or military law offence. In addition, extradition may be refused where the fugitive could be liable to the death penalty, unless an undertaking is given by the requesting state that the death penalty will not be imposed or, if imposed, will not be carried out.

Details of the Regulations are as follows:

Regulation 1 is a citation provision.

Regulation 2 provides for the Regulations to commence on 25 April 1997, which is the date on which it is planned the Treaty will come into force.

Regulation 3 declares the Republic of Hungary to be an extradition country.

Regulation 4 applies the Act to the Republic of Hungary subject to the Treaty, the English language text of which is reproduced as a Schedule to the Regulations.

The Schedule to the proposed Regulations contains the text of the Treaty on Extradition between Australia and the Republic of Hungary, done at Budapest on 25 October 1995.

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