Commonwealth Numbered Regulations - Explanatory Statements

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Select Legislative Instrument 2006 No. 308


Issued by the authority of the Minister for Justice and Customs


Extradition Act 1988


Extradition (Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography) Regulations 2006


Section 55 of the Extradition Act 1988 (the Act) provides, in part, that the Governor‑General may make regulations, not inconsistent with the Act, 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 Act makes provision for the extradition of persons from Australia to extradition countries, and facilitates the making of requests for extradition by Australia to other countries. The Act also enables Australia to carry out its obligations under extradition treaties. Extradition from Australia can only take place with an extradition country, or with New Zealand, under the procedures set down in the Act. Section 5 of the Act provides that an ‘extradition country’ is any country (other than New Zealand) that is declared by the regulations to be an extradition country.


Subsection 11(1A) of the Act provides that the regulations may provide that the Act applies in relation to a specified extradition country subject to the limitations, conditions, exceptions or qualifications as are necessary to give effect to a multilateral extradition treaty in relation to the country. Subsection 11(1C) provides that this may be achieved by applying the Act to the country subject to the treaty.


The Regulations apply the Act to the State Parties to the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (the Optional Protocol) which are listed in Schedule 2 of the Regulations, by declaring each listed country to be an extradition country. The effect of the Regulations is to allow Australia to make and receive extradition requests to and from a State Party declared by the Regulations to be an extradition country, for an offence specified in the Optional Protocol.


Australia signed the Optional Protocol on 18 December 2001. The purpose of the Optional Protocol is to further advance the purposes of the United Nations Convention on the Rights of the Child, by extending the measures that State Parties should undertake in order to guarantee that children are protected against sale, child pornography and child prostitution. It does so by obliging State Parties to criminalise and take other measures to prevent the sale of children for the purposes of sexual exploitation, transfer of the child’s organs for profit, forced child labour, and improperly inducing consent for adoption, child prostitution or child pornography. Attempts to commit such offences are also criminalised under the Optional Protocol.


Article 5 of the Optional Protocol contains obligations imposed on State Parties to extradite persons accused of Optional Protocol offences. These obligations apply only to other State Parties to the Optional Protocol.


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 will not 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 would 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 commenced on the day on the day that the Optional Protocol entered into force for Australia.


The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.


Details of the Regulations are as follows:

Regulation 1 names the Regulations.

Regulation 2 provides that the Regulations commence on the day after registration.

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 Optional Protocol.

Schedule 1 contains the text of the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography.

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



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