Commonwealth Numbered Regulations - Explanatory Statements

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EXTRADITION (BRIBERY OF FOREIGN PUBLIC OFFICIALS) REGULATIONS 1999 1999 NO. 284

STATUTORY RULES 1999 No. 284

Issued by the Authority of the Minister for Justice and Customs

Extradition Act 1988

Extradition (Bribery of Foreign Public Officials) Regulations 1999

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. An "extradition country" is defined in section 5 of the Act as including a country, colony, territory or protectorate that is declared by the regulations to be an extradition country. Paragraph 11 (1A) 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 multilateral extradition treaty in relation to the country.

The Regulations give effect in Australian domestic law to the extradition provisions of the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, opened for signature at Paris on 17 December 1997 ("the Convention"). The Convention requires each party to make it an offence to offer, promise or give any undue pecuniary or other advantage to a foreign public official in order that the official act or refrain from acting in relation to the performance of official duties, in order to obtain or retain business or other improper advantage in the conduct of international business. Each party is required to establish its jurisdiction over such conduct when the offence is committed wholly or partly on its territory and also, if the party has the requisite jurisdiction, when the offence is committed by a national of the party outside its territory. Article 10 of the Treaty provides for extradition between parties of persons accused of bribery of a foreign public official.

In accordance with the Government's policy of greater parliamentary involvement in Australia's treatymaking processes, the Convention was tabled in Parliament, together with a National Interest Analysis (NIA), on 3 March 1998. The period of fifteen sitting days following tabling elapsed on 2 April 1998 and, after extensive public hearings the Joint Standing Committee on Treaties recommended in its Sixteenth Report (June 1998) that Australia sign and ratify the Convention. Australia signed the Convention on 7 December 1998. Our instrument of ratification was deposited on 18 October 1999. The Convention will enter into force for Australia on 18 December 1999. Accordingly, 18 December 1999 is also the commencement date of the Regulations.

The effect of the Regulations is that bribery of a foreign public official will be deemed to be an extradition offence under the Act in relation to the other parties to the Convention. Extradition for this offence will be subject to the conditions set out in the Act and, where relevant, in bilateral extradition treaties between Australia and those parties. These conditions include all the internationally accepted human rights safeguards which are now a part of modem extradition. 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 would be tried, sentenced or detained for a political or military law offence. In addition, extradition will 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 carried out.

Details of the Regulations are as follows:

Regulation 1 names the Regulations.

Regulation 2 provides that the Regulations commence simultaneously with the Criminal Code Amendment (Bribery of Foreign Public Officials) Act 1999, which is expected to commence on 18 December 1999, the date on which the Convention will enter into force for Australia.

Regulation 3 defines terms used in the Regulations.

Regulation 4 declares that a country or other territory listed in Schedule 2 is an extradition country.

Regulation 5 provides that the Extradition Act 1988 applies to these extradition countries subject to the Convention.

Schedule 1 sets out the text of the Convention.

Schedule 2 lists the parties to the Convention other than Australia.