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1988 No. 287 EXTRADITION (REPUBLIC OF AUSTRIA) REGULATIONS - SCHEDULE 2

SCHEDULE 2
Regulation 4
PROTOCOL between Australia and the Republic of Austria amending the Treaty
concerning Extradition done at Canberra on 29 March 1973 Australia and the
Republic of Austria DESIRING to amend the Treaty between the Commonwealth of
Australia and the Republic of Austria concerning Extradition, done at Canberra
on 29 March 1973, HAVE AGREED as follows:
ARTICLE 1
The text of Article 1 of the Treaty shall be replaced by the following:

"ARTICLE 1
Each Contracting Party agrees to extradite to the other, in accordance with
the provisions of this Treaty, any persons who are wanted for prosecution or
the imposition or enforcement of a sentence in the requesting State for one
or more of the offences referred to in Article 3."
ARTICLE 2
The text of Article 3 of the Treaty shall be replaced by the following:

"ARTICLE 3

(1) For the purposes of this Treaty, offences for which extradition may be
granted are offences however described which are punishable under the laws of
both Contracting Parties by imprisonment or other deprivation of liberty for
a maximum period of at least one year or by a more severe penalty. Where the
request for extradition relates to a person convicted of such an offence who
is wanted for the enforcement of a sentence of imprisonment or other
deprivation of liberty, extradition shall be granted only if the period of
deprivation of liberty which remains to be served is at least four months,
or, in the case of more than one such period, the aggregate of such periods
is at least four months.

(2) If extradition is granted for an offence described in paragraph 1 of
this Article, extradition may, insofar as the law of the requested State
allows, also be granted for other offences which, by reason of the penalty
prescribed or the period of deprivation of liberty imposed and remaining to
be served, would not otherwise be extraditable pursuant to this Treaty.

(3) For the purpose of this Article-

   (a)  it shall not matter whether the laws of the Contracting Parties place
the acts or omissions constituting the offence within the same category of
offence or denominate the offence by the same or similar terminology;

   (b)  in determining whether an offence is an offence for which extradition
may be granted, the totality of the acts or omissions alleged against the
person whose surrender is sought, shall be taken into account and it shall
not matter whether, under the laws of both Contracting Parties, the offence
comprises the same elements.

(4) Where the offence has been committed outside the territory of the
requesting State extradition shall be granted where the law of the requested
State provides for the exercise of jurisdiction over an offence committed
outside its territory in similar circumstances. Where the law of the
requested State does not so provide the requested State may, in its
discretion, grant extradition.

(5) Extradition may be granted pursuant to the provisions of this Treaty
irrespective of when the offence in relation to which extradition is sought
was committed, provided that-

   (a)  it was an offence in the requesting State at the time of the acts or
omissions constituting the offence; and

   (b)  the acts or omissions alleged would, if they had taken place in the
territory of the requested State at the time of the making of the request for
extradition, have constituted an offence against the law in force in that
State."
ARTICLE 3
The text of Article 4, paragraph (1), sub-paragraph (b), shall be replaced
by the following:

"(b) he has acquired exemption from prosecution or punishment by lapse of
time or other lawful cause in respect of the act or omission constituting the
offence for which extradition is requested; for the purposes of this
sub-paragraph the statutory provisions of the requesting State alone shall be
relevant;".
ARTICLE 4
The text of Article 11 of the Treaty shall be replaced by the following:

"ARTICLE 11

(1) A request for extradition shall be made in writing. All documents
furnished in support of a request for extradition shall be duly
authenticated.

(2) The request for extradition shall be accompanied-

   (a)  if the person is accused or has been convicted in his absence of an
offence-by a warrant for the arrest or a copy of the warrant for arrest of
the person, a statement of each offence for which extradition is sought and a
statement of the acts or omissions which are alleged against the fugitive in
respect of each offence;

   (b)  if the person has been convicted of an offence-by such documents as
provide evidence of the conviction and the sentence imposed, the fact that
the sentence is immediately enforceable, and the extent to which the sentence
has not been carried out;

   (c)  if the person has been convicted of an offence but no sentence has
been imposed-by such documents as provide evidence of the conviction and a
statement affirming that it is intended to impose a sentence;

   (d)  in all cases by documents setting out the relevant provision of the
statute, if any, creating the offence or a statement of the relevant law as
to the offence including any law relating to the limitation of proceedings,
as the case may be, and in either case a statement of the punishment that can
be imposed for the offence; and

   (e)  in all cases by as accurate a description as possible of the person
sought together with any other information which will help to establish the
person's identity and nationality.

(3) Extradition may be granted of a person sought pursuant to the
provisions of this Treaty, notwithstanding that the requirements of
Paragraphs 1 and 2 of this Article have not been complied with provided that
the person sought consents to an order for his extradition being made."
ARTICLE 5
The text of Article 17 of the Treaty shall be replaced by the following:

"ARTICLE 17
Expenses incurred in the territory of the requested State by reason of
extradition shall be borne by that State. The requested State shall make all
arrangements which may be necessary with respect to the representation of the
requesting State in any proceedings arising out of the request if the law of
the requested State provides for such representation. However, the requesting
State shall bear any expenses occasioned by conveying the person from the
place of embarkation referred to in Article 16 of the Treaty."
ARTICLE 6

(1) This Protocol shall enter into force on the first day of the third month
following the month in which the Contracting Parties have notified each other
in writing through the diplomatic channel that their respective requirements
for entry into force have been fulfilled.

(2) This Protocol shall remain in force for so long as the Treaty between the
Commonwealth of Australia and the Republic of Austria concerning Extradition,
done at Canberra on 29 March 1973, remains in force. IN WITNESS WHEREOF the
undersigned, being duly authorised thereto by their respective Governments,
have signed this Protocol. Done in duplicate at Vienna on the Thirtieth day of
August, One Thousand Nine Hundred and Eighty-Five in the English and German
languages, each text being equally authentic.
LIONEL BOWEN                                                HAROLD OFNER

For Australia                                For the Republic of Austria


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