Commonwealth Numbered Regulations - Explanatory Statements

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Select Legislative Instrument 2006 No. 290


Issued by the authority of the Minister for Justice and Customs


Extradition Act 1988


Extradition (Malaysia) 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. 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 Regulations give effect in Australian domestic law to the Treaty on Extradition between the Government of Australia and the Government of Malaysia, signed at Putrajaya on
15 November 2005 and the Exchange of Notes between Australia and Malaysia on the Treaty on Extradition, signed at Kuala Lumpur on 7 December 2005 (the Treaty).


The Joint Standing Committee on Treaties recommended binding treaty action be taken in relation to the Treaty in Report 79, tabled on 19 October 2006.


As with all of Australia’s extradition treaties, the extradition treaty with Malaysia contains a range of internationally accepted human rights safeguards. Under the Treaty, extradition will not be granted where the request is for a political offence or a purely military offence or the request has been made for the purpose of prosecuting or punishing a person on account of that person’s race, religion, nationality or political opinions.


The Exchange of Notes sets out the agreement between the parties that Article 3(2) of the Treaty requires that Malaysia consult with Australia before making an extradition request for a person wanted for an offence that carries the death penalty. This reflects Malaysia’s understanding that paragraph 22(3)(c) of the Act prohibits Australia from extraditing a person for an offence that carries the death penalty in the absence of an undertaking from the country requesting extradition that the death penalty will not be imposed or will not be carried out.


The Regulations commence the day the Treaty comes into force for Australia. The Treaty will come into force for Australia thirty days after the date on which the Parties have notified each other in writing that their respective requirements for the entry into force of the Treaty have been complied with.


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

Regulation 1 names the Regulations.

Regulation 2 provides that the Regulations commence on the day the Treaty will enter into force.

Regulation 3 defines Act to mean the Extradition Act 1988.

Regulation 4 declares Malaysia to be an extradition country.

Regulation 5 provides that the Extradition Act 1988 applies to Malaysia subject to the Treaty and Exchange of Notes.

Schedule 1 contains the text of the Treaty.

Schedule 2 contains the text of the Exchange of Notes.


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