Commonwealth Numbered Regulations - Explanatory Statements
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EXTRADITION (IRELAND) AMENDMENT REGULATIONS 2021 (F2021L00529)
EXTRADITION (iRELAND) aMENDMENT REGULATIONS 2021
EXPLANATORY STATEMENT
Issued by authority of the Attorney-General
under section 55 of the Extradition Act 1988
Purpose and operation of the Instrument
The purpose of the proposed Extradition (Ireland) Amendment Regulations 2021 (the Amendment Regulations) is to give effect in Australian domestic law to a proposed amendment to the Treaty on Extradition between Australia and Ireland (the Treaty).
The Extradition Act 1988 (the Act) provides Australia's legislative basis for Australia to receive extradition requests from a country that is declared to be an 'extradition country' under the Act, and facilitates the making of requests for extradition by Australia to other countries.
Section 55 of the Act allows the Governor-General to make regulations prescribing 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. Section 5 of the Act states that an 'extradition country' may be defined as any country (other than New Zealand) that is declared by regulations to be an extradition country.
The Extradition (Ireland) Regulations 1989 declare the Republic of Ireland (Ireland) an extradition country for the purposes of the Act. This enables Australia to receive extradition requests from Ireland and facilitates the making of requests for extradition by Australia to Ireland.
The Amendment Regulations gives effect in Australian domestic law to an amendment to the Treaty to enable extradition from Ireland to Australia for revenue offences.
The Treaty entered into force in 1989. At that time, Ireland's domestic law did not permit extradition for revenue offences and subsequently Article 3(2)(a) of the Treaty contains the discretionary ground of refusal to extradite for revenue offences. However, in 2001, Ireland changed its laws to allow extradition for revenue offences where an extradition treaty expressly provides that a revenue offence is an extradition offence. The Amendment Regulations will give effect to a change made to the Treaty to enable Ireland to extradite a person to Australia for revenue offences.
The Amendment Regulations will provide that, for the purposes of paragraph 11(1)(a) of the Act, the Act applies to Ireland subject to the Treaty and an exchange of letters amending the Treaty between the Irish Tánaiste and Minister for Foreign Affairs and Trade and the Australian Ambassador to Ireland on 2 April 2019. The exchange of letters specify that:
* for the purposes of the Treaty a revenue offence is an extraditable offence
* a revenue offence means an offence in connection with taxes, duties, customs or exchange control, and
* extradition shall not be refused on the ground that the rules or laws relating to taxes, duties, customs or exchange control that apply in the requesting State differ in nature from the rules or laws that apply to taxes, duties, customs or exchange control in the requested State.
The Amendment Regulations will not impact any of Australia's existing obligations under the Treaty. The Amendment Regulations are consistent with Australia's policy to combat serious and organised crime, and will ensure that Australia and Ireland can cooperate with respect to the fullest range of offences. The Amendment Regulations will bring the Treaty into line with the vast majority of Australia's 39 bilateral extradition treaties currently in force, which allow for the extradition of persons for revenue offences.
The Amendment Regulations will likely have a negligible practical, legal and financial effect within Australia. This is because Australia does not require the Amendment Regulations to enable extradition to Ireland for revenue offences under Australia's domestic legal framework. Rather, the Amendment Regulations are required to enable Ireland to extradite persons to Australia for revenue offences under Irish domestic law.
Details of the Amendment Regulations are set out in Attachment A.
The Amendment Regulations are a legislative instrument for the purposes of the Legislation Act 2003.
The Amendment Regulations commence on the day the Treaty amendment enters into force. The Treaty amendment will enter into force upon the exchange of notes through diplomatic channels confirming each side has completed its necessary domestic requirements. The Minister will announce the entry into force of the amended Treaty by notifiable instrument.
Consultation
No consultation outside of the Australian Government was undertaken for the Amendment Regulations as they relate to international cooperation on criminal justice and law enforcement matters between Australia and a foreign country. The Joint Standing Committee on Treaties reviewed the Treaty amendment given effect by the Amendment Regulations and determined that it constitutes a minor treaty action for which no formal inquiry or report was necessary (Report 187 of October 2019).
Regulation Impact Statement
The amendments are minor in nature and are not expected to have any meaningful impact on business, individual or community organisations. The Office of Best Practice Regulation (OBPR) has advised that a Regulation Impact Statement is not required for the Amendment Regulations (OBPR Reference number 19498).
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
The Amendment Regulations are 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. A Statement of Compatibility with Human Rights is set out at Attachment B.
Attachment A
NOTES ON SECTIONS
Section 1 - Name
This section provides that the title of the Amendment Regulations is the Extradition (Ireland) Amendment Regulations 2021.
Section 2 - Commencement
This section provides that the Amendment Regulations commence on the later of (a) the day after the Amendment Regulations are registered, and (b) the day the amendments of the Treaty on Extradition between Australia and Ireland, agreed to by Australia and Ireland, done by an exchange of letters on 2 April 2019, come into force. However, the Amendment Regulations do not commence at all if the event in (b) does not occur.
Pursuant to the exchange of letters, the Treaty amendment will enter into force upon the exchange of notes through diplomatic channels confirming each side has completed its necessary domestic requirements. The Minister must, by notifiable instrument, announce the day on which the Treaty amendment enters into force for Australia.
Section 3 - Authority
This section provides that the Amendment Regulations are made under the Extradition Act 1988.
Section 4 - Schedules
This section provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.
SCHEDULE 1 - Amendments
Item [1] - Regulation 5
New regulation 5 allows for the incorporation of the amendment to the Treaty. The existing regulation 5 of the Extradition (Ireland) Regulations 1989 provides that the Extradition Act applies in relation to Ireland subject to the Treaty on Extradition between Australia and Ireland done at Dublin on 2 September 1985. This item repeals the existing regulation 5 and substitutes that for the purposes of paragraph 11(1)(a) of the Act, the Act applies to Ireland subject to (a) the Treaty on Extradition between Australia and Ireland done at Dublin on 2 September 1985; and (b) an exchange of letters, amending the treaty, between the Irish Tánaiste and Minister for Foreign Affairs and Trade and the Australian Ambassador to Ireland on 2 April 2019.
Item [2] - Schedule (heading)
This item repeals the existing Schedule heading and substitutes it with 'Schedule 1--Treaty on Extradition between Australia and Ireland done at Dublin on 2 September 1985'. The new heading is consequential to the insertion of Schedule 2 set out below.
Item [3] - At the end of the instrument
This item adds, as Schedule 2, the text of the exchange of letters between the Irish Tánaiste and Minister for Foreign Affairs and Trade and the Australian Ambassador to Ireland on 2 April 2019.
Attachment B
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Extradition (Ireland) Amendment Regulations 2021
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
The Extradition (Ireland) Amendment Regulations 2021 (the Legislative Instrument) will give effect in Australian domestic law to an amendment to the Treaty on Extradition between Australia and Ireland (the Treaty) to enable Ireland to extradite persons to Australia for revenue offences.
This Legislative Instrument provides that, for the purposes of paragraph 11(1)(a) of the Extradition Act 1988, the Act applies to Ireland subject to the Treaty, and, the exchange of letters amending the Treaty between the Irish Tánaiste and Minister for Foreign Affairs and Trade and the Australian Ambassador to Ireland on 2 April 2019. The text of the exchange of letters, which details the agreed amendments to the Treaty to provide for the extradition of persons for revenue offences, is set out in Schedule 2 of the Legislative Instrument.
This Legislative Instrument does not impact any of Australia's existing obligations under the Treaty and is consistent with Australia's policy to combat serious and organised crime, by ensuring that Australia and Ireland can cooperate with respect to the fullest range of offences.
Human rights implications
This Legislative Instrument does not engage any of the applicable rights or freedoms.
Conclusion
This Legislative Instrument is compatible with human rights, as it does not raise any human rights issues.