Commonwealth Numbered Regulations - Explanatory Statements

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Statutory Rules 2002 No. 201

Issued by the authority of the Minister for Justice and Customs

Extradition Act 1988

Extradition (Suppression of Terrorist Bombings) Regulations 2002

Section 55 of the Extradition Act 1998 (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 5(a) of the Act provides that a country may be declared by the regulations to be an extradition country. Paragraph 11(1A) provides that the regulations may make provision for application of the Act subject to limitations, conditions, exceptions or qualifications that are necessary to give effect to a multilateral treaty in relation to the country. An 'extradition treaty' means a treaty relating in whole or in part to the surrender of persons accused or convicted of offences.

The Regulations give effect in Australian domestic law to the extradition provisions of the International Convention on the Suppression of Terrorist Bombings (the Convention) done at New York on 15 December 1997.

The Convention requires each party to make it an offence to unlawfully and intentionally deliver, place, discharge or detonate (or attempt to unlawfully and intentionally deliver, place, discharge or detonate) an explosive or other lethal device in, into or against a place of public use, a State or government facility, a public transportation system or an infrastructure facility with the intent to cause death or serious bodily injury, or with the intent to cause extensive destruction of such a place, facility or system, where such destruction results in or is likely to result in major economic loss.

Article 9 of the Convention provides for extradition between parties of persons accused of Convention offences. Australia acceded to the Convention on 9 August 2002. The Convention enters into force for Australia on 8 September 2002.

The effect of the Regulations is that Convention offences are deemed to be extradition offences under the Act in relation to the other parties to the Convention.

Extradition under the Regulations operates in accordance with the Act.

The Act applies the modern 'no evidence' extradition procedure. Under this procedure countries are not required to present evidence establishing a prima facie case against the person sought.

Extradition under the Regulations is subject to the various safeguards set out in the Act. For example, extradition is not to be permitted where the fugitive is sought for or in connection with his or her race, religion, nationality or political opinions or is to be tried, sentenced or detained for a political or military offence. Extradition must be refused where the fugitive could be liable to the death penalty, unless an undertaking is given that the death penalty will not be imposed or, if imposed, will not be carried out. In addition, the Attorney-General retains a broad discretion to refuse an extradition request by a country.

The Regulations commence on the commencement of Schedule 1 to the Criminal Code Amendment (Suppression of Terrorist Bombings) Act 2002. A separate minute to the Federal Executive Council is recommending that Schedule 1 commence on 8 September 2002 to coincide with the date that the Convention enters into force in Australia. This Act received Royal Assent on 3 July 2002.

Details of the Regulations are as follows:

Regulation 1 names the Regulations.

Regulation 2 provides that the Regulations commence on the date of commencement of Schedule 1 to the Criminal Code Amendment (Suppression of Terrorist Bombings) Act 2002.

Regulation 3 defines terms used in the Regulations.

Regulation 4 declares that the countries specified in Schedule 2 are extradition countries.

Regulation 5 provides for the application of the Act to the countries specified in Schedule 2, subject to the Convention.

Schedule 1 contains the text of the International Convention for the Suppression of Terrorist Bombings.

Schedule 2 lists extradition countries to which the Act applies subject to the Convention.

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