Commonwealth Numbered Regulations - Explanatory Statements
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EXTRADITION (PIRACY AGAINST SHIPS IN ASIA) REGULATION 2013 (SLI NO 15 OF 2013)
EXPLANATORY STATEMENT
Select Legislative Instrument 2013 No. 15
Issued by the authority of the Minister for Justice
Extradition Act 1988
Extradition (Piracy against Ships in Asia) Regulation 2013
Section 55 of the Extradition Act 1988 ('Extradition Act') provides, in part, that the Governor-General may make regulations, not inconsistent with the Extradition Act, prescribing all matters required or permitted by the Extradition Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Extradition Act.
The Extradition Act makes provision for the extradition of persons from Australia to extradition countries and to New Zealand, and facilitates the making of requests for extradition by Australia to other countries. Extradition from Australia can only take place to an extradition country, or to New Zealand, under the special procedures set down in the Extradition Act. Section 5 of the Extradition Act provides that an 'extradition country' is any country (other than New Zealand) that is declared by the regulations to be an extradition country; or any colony, territory or protectorate of a country, or a territory for the international relations of which a country is responsible, that is declared by regulations to be an extradition country.
Section 11 of the Extradition Act governs the application of the Extradition Act to extradition countries. It sets out certain specific ways in which regulations may modify the application of the Extradition Act. This Section enables regulations to apply the Extradition Act to countries which, together with Australia, are parties to multilateral treaties dealing with extradition, or containing extradition obligations.
The Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (Tokyo, 11 November 2004) ('the Agreement') establishes a framework for cooperation amongst States, through information sharing, capacity building and cooperative arrangements in combating the threat of piracy and armed robbery against ships in Asia.
Article 12 of the Agreement specifies that a Contracting Party to the Agreement shall, subject to its national laws and regulations, endeavour to extradite pirates or persons who have committed armed robbery against ships, and are located in its territory to another country who is a Contracting Party to the Agreement, if the requesting country has jurisdiction over the offence or offences.
The Extradition (Piracy against Ships in Asia) Regulation 2013 ('the Regulation') applies the Extradition Act to Contracting Parties to the Agreement by declaring each Contracting Party to the Agreement to be an extradition country for the purposes of the Extradition Act. The effect of the Regulation is that Australia can receive extradition requests from a Contracting Party to the Agreement, in respect of offences described in Article 12 of the Agreement (piracy and armed robbery against ships) in accordance with the Extradition Act.
The Regulation will commence on the day the Agreement enters into force for Australia. In accordance with Article 18(5) of the Agreement, the Australian Government must notify the Agreement's depository (the Government of Singapore) of its intention to accede to the Agreement. When this occurs the depository will advise all Contracting Parties of this notification and, if no written objection is raised within 90 days, Australia may deposit an instrument of accession with the depository. After a further 60 days Australia will become a Contracting Party to the Agreement.
Consultation outside the Australian Government was not undertaken for this legislative instrument as it relates to criminal justice and law enforcement matters. The legislative instrument does not have a direct, or substantial indirect, effect on business and does not restrict competition. Australia's accession to the Agreement has been the subject of a public hearing by the Joint Standing Committee on Treaties, which recommended binding treaty action be taken in Report 131, tabled on 28 November 2012.
The Extradition Act specifies no conditions that need to be satisfied before the power to make the Regulation may be exercised.
The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
ATTACHMENT
Details of the Extradition (Piracy against Ships in Asia) Regulation 2013
Section 1 - Name of Regulation
This section specifies that the title of the Regulation is the Extradition (Piracy against Ships in Asia) Regulation 2013.
Section 2 - Commencement
This section specifies that the Regulation commences on the day the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia ('the Agreement') enters into force for Australia.
The Note to section 2 outlines that Article 18 of the Agreement sets out when the Agreement enters into force for a country.
Section 3 - Authority
This section specifies that the Regulation is made under the Extradition Act 1988.
This section provides that the term 'Agreement' is defined to mean the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia, done at Tokyo on 11 November 2004.
The Note to section 4 outlines that the text of the Agreement is accessible through the Australian Treaties Library on the Austlii website (www.austlii.edu.au).
Section 5 - Extradition countries
Australia can only extradite a person to an extradition country, or to New Zealand, under the special procedures set down in the Extradition Act. Section 5 of the Extradition Act provides that an 'extradition country' is any country (other than New Zealand) that is declared by the regulations to be an extradition country; or any colony, territory or protectorate of a country, or a territory for the international relations of which a country is responsible, that is declared by regulations to be an extradition country.
This section provides that a country for which the Agreement is in force is an extradition country for the purposes of section 5 of the Extradition Act. Note 1 to section 5 outlines that Article 18 of the Agreement sets out when the Agreement enters into force for a country. Note 2 to section 5 states that the countries for which the Agreement is currently in force are listed on the website for the Agreement at http://recaap.org.
Section 6 - Application of Act in relation to extradition countries
The Extradition Act provides the legal framework for extradition to and from Australia. This section provides that the Extradition Act applies to the extradition countries set out in the Regulation, subject to the Agreement.
This means that the Extradition Act applies to any request received from an 'extradition country', as outlined in section 5 of the Regulation (being a country for which the Agreement is in force), for offences established under the Agreement (piracy and armed robbery against ships).
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Extradition (Piracy against Ships in Asia) Regulation 2013
This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
2. Extradition is a key international crime cooperation tool. It is the process by which one country sends a person to another country to face criminal charges or serve a sentence. The Extradition Act 1988 ('Extradition Act') provides the legislative basis for extradition in Australia. Under the Extradition Act, Australia can only accept extradition requests from countries that have been declared by regulation to be 'extradition countries' for the purpose of the Extradition Act.
3. The Extradition (Piracy against Ships in Asia) Regulation 2013 ('the Regulation') will give effect in Australian domestic law to Australia's extradition obligations under the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia ('the Agreement'). The Regulation will apply the Extradition Act to Contracting Parties to the Agreement by declaring that each Contracting Party to the Agreement, listed in Schedule 1 to the Regulation, is an 'extradition country' for the purposes of the Extradition Act.
4. The effect of the Regulation is to allow Australia to receive extradition requests from a Contracting Party to the Agreement, for offences described in Article 12 of the Agreement, in accordance with the Extradition Act. The offences described in the Agreement, piracy and armed robbery on ships, are of a serious nature and are of international concern. As a Contracting Party to the Agreement, Australia will have an obligation to facilitate international crime cooperation, including the extradition of persons who are wanted to face prosecution or serve a sentence in the jurisdiction of another Contracting Party to the Agreement.
Human rights implications
5. The Regulation applies the existing extradition regime to Contracting Parties to the Agreement to the offences described in the Agreement.
6. Extradition can engage a range of human rights, including the right to a fair hearing, the right to liberty, the right to life and the prohibition on torture and cruel, inhuman or degrading treatment or punishment and rights to equality and non-discrimination.
7. Australia's extradition regime contains a number of human rights safeguards that appropriately balance Australia's need to comply with our international criminal justice obligations whilst ensuring that the human rights of individuals are protected. These safeguards and protections are contained in relevant extradition treaties and Australia's Extradition Act and will apply to extradition requests made under the Agreement.
8. The Extradition Act provides that a person will not be extradited where there is an 'extradition objection'. An extradition objection includes the following:
* where the extradition offence is a political offence (subsection 7(a) of the Extradition Act)
* where the person is actually sought for the purpose of prosecuting or punishing the person on account of his or her race, sex, sexual orientation, religion, nationality or political opinions (subsection 7(b) of the Extradition Act)
* where the person may be prejudiced at his or her trial, or punished, detained or restricted in his or her personal liberty, by reason of his or her race, sex, sexual orientation, religion, nationality or political opinions (subsection 7(c) of the Extradition Act)
* where the offence for which the person is sought is a military offence , but not a criminal offence (subsection 7(d) of the Extradition Act), and
* where the person will be subject to double jeopardy (subsection 7(e) of the Extradition Act).
9. When making a surrender determination, the Minister must not surrender a person where:
* there are substantial grounds for believing that he or she would be in danger of being subjected to torture (section 22(3)(b) of the Extradition Act)
* there are substantial grounds for believing that he or she would be in danger of being subjected to the death penalty (subsection 22(3)(c) of the Extradition Act), or
* where the requesting country has not given an assurance that the person sought will only be tried for the offences contained in the extradition request (section 22(3)(d).
10. The Minister also has a broad discretion under section 22 of the Extradition Act to refuse surrender. This discretion provides an additional mechanism to refuse extradition in circumstances where there are legitimate human rights concerns. The Extradition Act also provides that the person subject to the extradition has the opportunity to make representations regarding any human rights concerns. In considering whether a person should be surrendered, the Minister will consider those matters raised by the person the subject of the extradition request.
11. In circumstances where a person has human rights concerns that they believe should have formed the basis of a Magistrates determination of eligibility to surrender or the Minister's decision to surrender, the person may seek judicial review. Judicial review is available under section 39B of the Judiciary Act 1903 and section 75(v) of the Constitution of Australia.
12. The Extradition Act makes bail available, where there are special circumstances, to persons who have consented to extradition, have been determined eligible for surrender by a magistrate or are seeking review of the decision to surrender the person. This ensures that where circumstances justifying bail exist, the person will not be kept in prison during the extradition process.
13. The Regulation does not alter any of the human rights safeguards that are already contained in Australia's extradition regime.
Conclusion
This Legislative Instrument is compatible with the applicable rights and freedoms.
The Hon Jason Clare MP
Minister for Justice
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