Commonwealth Numbered Regulations - Explanatory Statements
[Index] [Search] [Download] [Related Items] [Help]
EXTRADITION (CYBERCRIME) REGULATION 2013 (SLI NO 3 OF 2013)
EXPLANATORY STATEMENT
Select Legislative Instrument 2013 No. 3
Issued by the authority of the Attorney-General
Extradition Act 1988
Extradition (Cybercrime) Regulation 2013
Section 55 of the Extradition Act 1988 (the 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.
Subsection 11(1A) of the Extradition Act provides that the regulations may provide that the Extradition Act applies in relation to a specified extradition country subject to the limitations, conditions, exceptions or qualifications as are necessary to give effect to a multilateral extradition treaty in relation to the country. Subsection 11(1C) provides that this may be achieved by applying the Extradition Act to the country subject to the treaty.
On 20 September 2010, Australia was invited to accede to the Council of Europe Convention on Cybercrime which opened for signature in Budapest on 23 November 2001. On 30 November 2012 Australia's instrument of accession was accepted by the Council of Europe and will come into force for Australia on 1 March 2013. The Convention provides a framework for international cooperation in the prevention and investigation of crimes committed via the Internet and other computer networks.
This Regulation applies the Extradition Act to States Parties to the Convention by declaring each State Party for which the Convention is in force to be an extradition country for the purposes of the Extradition Act. The effect of the Regulation is to allow Australia to make and receive extradition requests to and from a State Party to the Convention, for offences specified in the Convention in accordance with the Extradition Act. The Regulation declares all States Parties for which the Convention is in force to be extradition countries for the purpose of extradition for offences specified in the Convention; it does not list them individually. Accordingly, the Regulation does not need to be updated if a new State Party ratifies or accedes to the Convention.
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 Convention was the subject of a public hearing by the Joint Standing Committee on Treaties, which recommended binding treaty action be taken in Report 116 tabled on 11 May 2011.
Details of the Regulation are set out in the Attachment.
The Regulation commences on 1 March 2013, being the day on which the Convention enters into force for Australia.
The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
ATTACHMENT
Details of the Extradition (Cybercrime) Regulation 2013
Section 1 - Name of Regulation
This section specifies that the title of the Regulation is the Extradition (Cybercrime) Regulation 2013.
Section 2 - Commencement
This section specifies that the Regulation commences on 1 March 2013, being the day on which the Convention enters into force for Australia.
Section 3 - Authority
This section provides that the Regulation is made under the Extradition Act 1988.
Section 4 - Definitions
This section provides that the term 'Act' is defined to mean the Extradition Act 1988 (the Extradition Act) and the term 'Convention' is defined to mean the Council of Europe Convention on Cybercrime done at Budapest on 23 November 2001 (the Convention).
This section also provides that the text of the Convention could, in 2013, be found online 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 Act. Section 5 of the 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 Convention is in force is an extradition country for the purposes of section 5 of the Extradition Act. Note 1 to section 4 outlines that Articles 36 and 37 of the Convention states when the Convention enters into force for a country. Note 2 to section 4 states that the countries for which the Convention is currently in force are listed on the Council of Europe website at http://hub.coe.int/.
Section 6 - Application of the Act
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 Convention. This means that any request received from an 'extradition country', as outlined in section 4 of the Regulation, for offences established under the Convention will be determined in accordance with the Extradition Act, subject to any modifications necessary to meet the requirements of the Convention.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Extradition (Cybercrime) 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
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 purposes of the Extradition Act.
2. The Extradition (Cybercrime) Regulation 2013 (the Regulation) will give effect in Australian domestic law to Australia's extradition obligations under the Council of Europe Convention on Cybercrime which opened for signature in Budapest on 23 November 2001 (the Convention). The Regulation will apply the Extradition Act to States Parties to the Convention by declaring that each country for which the Convention is in force is an 'extradition country' for the purposes of the Extradition Act.
3. The effect of the Regulation is to allow Australia to make and receive extradition requests to and from a State Party to the Convention, for offences specified in the Convention.
Human rights implications
4. This Legislative Instrument does not engage any of the applicable rights or freedoms.
5. Extradition is the process by which one country sends a person to another country to face criminal charges or serve a sentence. Australia's extradition regime contains a number of human rights safeguards that appropriately balance Australia's need to comply with our international obligations while ensuring that the rights of individuals are protected.
6. The Regulation ensures that Australia is able to make and receive extradition requests for offences contained in the Convention. The offences contained in the Convention are of a serious nature and are of international concern. As a State Party to the Convention, Australia has an obligation to facilitate international crime cooperation, including the extradition of persons who are wanted to face prosecution or serve a sentence in another State that is a party to the Convention.
7. The Regulation does not alter any of the human rights safeguards that are already contained in Australia's extradition regime.
Conclusion
While Australia's Extradition regime engages with some human rights, it does so in a reasonable and proportionate way and does not operate to limit or restrict those rights. As such, the Regulation is compatible with human rights.
Mark Dreyfus
Attorney-General
AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback