House of Representatives

Revised Explanatory Memorandum

(Circulated by authority of the Minister for Justice the Honourable Brendan O'Connor MP)

SCHEDULE 2 - AMENDMENTS RELATING TO EXTRADITION

GENERAL OUTLINE

2.1 Schedule 2 contains amendments to the Extradition Act. Part 1 of Schedule 2 will remove the jurisdiction of State and Territory Supreme Courts to hear appeals under the Extradition Act and limit this jurisdiction to federal courts. Proceedings in the extradition context, such as applications for judicial review of decisions made by the Attorney-General, are generally brought in the Federal Court of Australia. This amendment seeks to overcome the jurisdictional complexities that can arise where proceedings in the same matter are brought in both State and federal courts. This amendment will also build on the federal courts' existing expertise in extradition matters.

2.2 Part 2 of Schedule 2 will allow a person to waive the extradition process, subject to certain safeguards. Currently, a person may only consent to extradition once he or she is before a magistrate following the issue of the Minister's notice accepting the extradition request. This can take some time, particularly if the person was arrested under a provisional arrest warrant. The amendments in Part 2 of Schedule 2 will allow a person, once arrested following an extradition request or a provisional arrest request, to immediately elect to remove him or herself from the extradition process and be surrendered to the foreign country. Persons who elect to use the waiver of extradition process could reduce the time they spend in Australian custody pending surrender as not all stages of the extradition process would be required to be completed.

2.3 Part 3 of Schedule 2 contains other amendments to the Extradition Act. Division 1 of Part 3 of Schedule 2 will streamline the 'political offence' definition by ensuring that exceptions to the definition are generally contained in regulations, rather than in the Act. This will ensure the extradition regime can be kept up-to-date with Australia's international obligations without requiring frequent amendments to the Extradition Act. It is intended that the regulations would clarify that this ground of refusal does not extend to specified crimes such as terrorism.

2.4 Division 2 of Part 3 of Schedule 2 will require Australia to refuse to extradite a person if he or she may be punished, or discriminated against upon surrender, on the basis of his or her sex or sexual orientation. Division 3 of Part 3 of Schedule 2 will streamline the early stages of the extradition process by removing the current duplication in the factors required to be considered. Dual criminality and extradition objections would continue to be considered by a magistrate when conducting extradition proceedings. However, the Attorney-General will not be required to consider these factors before issuing a notice under section 16 of the Extradition Act conferring jurisdiction on a magistrate to conduct extradition proceedings.

2.5 Division 4 of Part 3 of Schedule 2 will allow a person to consent to being surrendered for a wider range of offences. Currently, a person can consent to being surrendered for 'extradition offences' (i.e. offences that are punishable by imprisonment for over 12 months), which are listed in the Attorney-General's notice under section 16 of the Extradition Act conferring jurisdiction on a magistrate to conduct extradition proceedings. A person can also consent to being surrendered for offences which are not 'extradition offences' and therefore not offences which are listed in the Attorney-General's notice under section 16. Division 4 will allow a person to consent to being surrendered for offences which are 'extradition offences' but are not listed in the Attorney-General's notice under section 16.

2.6 Division 5 of Part 3 of Schedule 2 will enable the Attorney-General to give a legally enforceable undertaking to a country as to the maximum sentence that could be imposed on a person, before the person is extradited to Australia. This will facilitate the return to Australia, for prosecution, of persons from countries which are prohibited under their own laws from surrendering a person to Australia unless an undertaking is provided about the maximum sentence that may be imposed on the person.

2.7 Division 6 of Part 3 of Schedule 2 will extend the circumstances in which persons may be prosecuted in Australia as an alternative to extradition. Currently, a person can only be prosecuted in Australia in lieu of extradition where the extradition has been refused on the basis that the person is an Australian citizen. The amendments in this division will enable a person to be prosecuted in any circumstances where Australia has refused extradition.

2.8 Division 7 of Part 3 of Schedule 2 will make various minor and technical amendments to the provisions in the Extradition Act which provide for the Attorney-General to give notices. For example, it will allow the Attorney-General to amend notices that he or she has issued under section 16 of the Extradition Act.

2.9 Division 8 of Part 3 of Schedule 2 will extend the availability of bail in extradition proceedings. Currently, a person may be remanded on bail during the early stages of the extradition process if special circumstances exist. However, once a person is determined by a magistrate to be eligible for surrender, he or she must be committed to prison. Division 8 of Part 3 of Schedule 2 will extend the availability of bail to persons who have consented to extradition or been determined eligible for surrender by a magistrate. Division 9 of Part 3 of Schedule 2 will make a series of minor and technical amendments to the Extradition Act. A number of these amendments will simplify the language of the Extradition Act and rectify technical drafting issues.

PART 1 - STATUTORY APPEAL OF EXTRADITION DECISIONS

DIVISION 1 - AMENDMENTS

OVERVIEW

2.10 Part 1 of Schedule 2 of the Bill will limit the jurisdiction to review extradition decisions to the Federal Court of Australia. This will assist in removing judicial complexities where proceedings are brought in both State and Federal courts. This will also build on the federal courts' existing expertise in extradition matters.

EXTRADITION ACT 1988

ITEM 1 - SUBSECTION 21(1)

2.11 This item will remove the phrase ', or to the Supreme Court of the State or Territory' from subsection 21(1) of the Extradition Act. Currently, a magistrate of a State or Territory conducts proceedings under section 19 of the Act to determine whether a person is eligible for surrender to an extradition country. Under section 21 of the Act, the person whose extradition is sought or the extradition country can seek a review of the magistrate's order that a person is eligible for surrender either in the Federal Court or in the Supreme Court of the State or Territory. This amendment will limit jurisdiction for reviews carried out under section 21 to the Federal Court. Further, item 3 of Schedule 1 will remove 'of a State or Territory' after the word 'magistrate' from subsection 21(1). This will recognise that it will not matter which State or Territory the magistrate made the original order in as the only avenue for appeal will be to the Federal Court.

ITEM 2 - SUBSECTION 21(2)

2.12 This item is consequential to the changes that will be made by item 1 of this Schedule, and will insert 'Federal' before 'Court' in subsection 21(2) of the Extradition Act. This item will provide that the Federal Court will be the only court which may make orders under subsection 21(2), on review of a magistrate's determination of a person's eligibility for surrender.

ITEM 3 - SUBSECTIONS 21(3) AND (4)

2.13 This item will remove the phrase 'or the Supreme Court' from subsections 21(3) and 21(4) of the Extradition Act as a consequence of the removal of the jurisdiction of the Supreme Courts to carry out reviews under section 21 (which will be made by item 1 of this Schedule). Existing subsection 21(3) allows for appeals from the Federal Court or a State or Territory Supreme Court to the Full Court of the Federal Court. Existing subsection 21(4) provides for this appeal to be filed or lodged within 15 days of the order being made by the Federal Court or the State or Territory Supreme Court.

ITEM 4 - AT THE END OF PARAGRAPH 21(6)(A)

2.14 This item will add 'or' to the end of paragraph 21(6)(a) to correct a previous stylistic oversight.

ITEM 5 - PARAGRAPH 26(5)(C)

2.15 This item will omit 'or the Supreme Court of the State or Territory in which the person is in custody' from paragraph 26(5)(c) of the Extradition Act. Existing subsection 26(5) provides that where a surrender warrant or temporary surrender warrant has been issued in relation to a person and the person is in custody under the warrant for more than two months, the person may apply to the Federal Court or the Supreme Court of the State or Territory in which the person is in custody for release from custody.

2.16 This item will limit this jurisdiction to the Federal Court. This will mean that a person can only apply to the Federal Court for release from custody, and not the Supreme Court of the State or Territory in which he or she is in custody.

ITEM 6 - SUBSECTIONS 26(5) AND (6)

2.17 This item will omit 'the Court' and substitute 'the Federal Court' in subsections 26(5) and 26(6) of the Extradition Act. This is consequential to the changes that will be made by item 5, which limit the jurisdiction for applications made under subsection 26(5) of the Extradition Act to the Federal Court.

ITEM 7 - SUBSECTION 35(1)

2.18 This item will omit ', or to the Supreme Court of the State or Territory' from subsection 35(1) of the Extradition Act. Currently, a magistrate of a State or Territory conducts proceedings under section 34 of the Act to determine whether the person is eligible for surrender to New Zealand. Where a person is found eligible for surrender, the magistrate makes an order under section 34 of the Extradition Act. Section 35 provides for judicial review of the magistrate's order in either the Federal Court or the Supreme Court of the State or Territory. This item will limit the jurisdiction for reviews carried out under section 35 of the Extradition Act to the Federal Court. Further, item 4 of Schedule 1 will remove 'of a State or Territory' after the word 'magistrate' from subsection 35(1). This will recognise that it will not matter which State or Territory the magistrate made the original order in as the only avenue for appeal will be to the Federal Court.

ITEM 8 - SUBSECTION 35(2)

2.19 This item will insert 'Federal' before 'Court' in subsection 35(2) of the Extradition Act. This amendment is consequential to the changes that will be made by item 7 and will make it clear that the Federal Court will be the only court which may make orders under subsection 35(2).

ITEM 9 - SUBSECTIONS 35(3) AND (4)

2.20 This item will omit 'or the Supreme Court' from subsections 35(3) and 35(4) of the Extradition Act. This item is consequential to the changes that will be made by item 7. Existing subsection 35(3) provides for an appeal to the Full Federal Court from an order of the Federal Court or an order of a Supreme Court of a State or Territory. Subsection 35(4) provides for this appeal to be lodged within 15 days of the order being made.

ITEM 10 - PARAGRAPH 38(7)(C)

2.21 This item will omit 'or the Supreme Court of the State or Territory in which the person is in custody' from paragraph 38(7)(c) of the Extradition Act. Currently, where a surrender warrant or temporary surrender warrant has been issued in relation to a person and the person is in custody under the warrant for more than one month, the person may apply to the Federal Court, or to the Supreme Court of the State or Territory in which the person is in custody for release from custody.

2.22 This item will limit the jurisdiction for applications made under subsection 38(7) to the Federal Court. This will mean that a person can only apply to the Federal Court for release from custody, and not the Supreme Court of the State or Territory in which he or she is in custody.

ITEM 11 - SUBSECTION 38(7) AND (8)

2.23 Currently, where a surrender warrant or temporary surrender warrant has been issued in relation to a person and the person is in custody under the warrant for more than one month, the person may apply to the Federal Court, or to the Supreme Court of the State or Territory in which the person is in custody, for release from custody. Item 10 will limit the jurisdiction for applications made under subsection 38(7) of the Extradition Act to the Federal Court. This will mean that a person can only apply to the Federal Court for release from custody, and not the Supreme Court of the State or Territory in which he or she is in custody.

2.24 This item will remove the references to 'the Court' wherever occurring in subsections 38(7) and 38(8) and substitute them with 'the Federal Court' as a consequence of the changes that will be made by item 10.

ITEM 12 - SUBSECTION 51(1)

2.25 This item will repeal subsection 51(1) and replace the heading to section 51 with 'Application of section 38 of the Judiciary Act 1903'. Existing subsection 51(1) provides that the jurisdiction of the Supreme Court of a State or Territory in matters arising under section 21 or 35 of the Extradition Act may be exercised by a single Judge of the Court. As a consequence of the amendments that will be made by Part 1 of this Schedule, jurisdiction in matters arising under sections 21 or 35 may only be exercised by the Federal Court and will no longer be exercised by the Supreme Court of a State or Territory. Consequently, this subsection is no longer required.

ITEM 13 - SUBSECTION 51(2)

2.26 This item will remove the numbering of subsection 51(2), and is consequential to the changes that will be made by item 12, which will repeal subsection 51(1). As subsection 51(1) will be repealed, '(2)' will no longer be required as section 51 will no longer be subdivided.

DIVISION 2 - APPLICATION AND TRANSITIONAL PROVISIONS

ITEM 14 - APPLICATION OF AMENDMENTS MADE BY ITEMS 1, 3 AND 12

2.27 This item will stipulate the application of the amendments which will be made by items 1, 3 and 12. The amendments will apply such that any order made under subsections 19(9) or (10) of the Extradition Act after the date of commencement of this item cannot be considered by a State or Territory Supreme Court pursuant to section 21 of the Extradition Act. Any order made under subsections 19(9) or (10) before the date of commencement of this item may still be considered by a State or Territory Supreme Court. This item will commence on Proclamation.

ITEM 15 - APPLICATION OF AMENDMENT MADE BY ITEM 5

2.28 This item will stipulate the application of amendments which will be made by item 5. The amendments will apply such that applications for release from custody made under paragraph 26(5)(c) of the Extradition Act in respect of surrender warrants or temporary surrender warrants issued after the commencement of this item may only be made to the Federal Court. Applications which relate to surrender warrants or temporary surrender warrants issued prior to the commencement of this item may still be considered by a State or Territory Supreme Court. This item will commence on Proclamation.

ITEM 16 - APPLICATION OF AMENDMENTS MADE BY ITEMS 7, 9 AND 12

2.29 This item will stipulate the application of amendments which will be made by items 7, 9 and 12. The amendments will apply such that any order made under section 34 of the Extradition Act after the date of commencement of this item cannot be considered by a State or Territory Supreme Court pursuant to section 35 of the Act. Any order made under section 34 before the date of commencement of this item may still be considered by a State or Territory Supreme Court. This item will commence on Proclamation.

ITEM 17 - APPLICATION OF AMENDMENT MADE BY ITEM 10

2.30 This item will stipulate the application of the amendment which will be made by item 10. The amendment will apply such that applications for release from custody made under section 38 of the Extradition Act which relate to surrender warrants or temporary surrender warrants issued after the commencement of this item may only be made to the Federal Court. Applications which relate to surrender warrants or temporary surrender warrants issued prior to the commencement of this item may still be considered by a State or Territory Supreme Court. This item will commence on Proclamation.

PART 2 - WAIVER OF EXTRADITION

EXTRADITION ACT 1988

ITEMS 18 AND 19 - SECTION 5 (DEFINITION OF SURRENDER OFFENCE AND PARAGRAPH (B) OF THE DEFINITION OF SURRENDER OFFENCE)

2.31 These items will amend the definition of 'surrender offence' in section 5 of the Extradition Act. Currently, 'surrender offence' is defined as an extradition offence in relation to which the Attorney-General has determined that a person should be surrendered in accordance with subsection 22(2) of the Extradition Act, or any offences in respect of which a person has consented to being surrendered in accordance with subsection 20(2) of the Extradition Act.

2.32 These items will amend the definition of 'surrender offence' to include extradition offences in relation to which the Attorney-General has determined that a person should be surrendered in accordance with new subsection 15B(2) of the Extradition Act. These amendments are consequential to item 24, which will insert new section 15B. New section 15B will enable the Attorney-General to make a separate determination in relation to surrender where a person elects to waive extradition.

ITEM 20 - SECTION 5 (AT THE END OF SUBPARAGRAPH (B)(I) OF THE DEFINITION OF SURRENDER WARRANT)

2.33 This item will insert 'or' at the end of subparagraph (b)(i) of the definition of 'surrender warrant'. Each subparagraph in the definition of 'surrender warrant' has an 'or' at the end of the subparagraph. The omission at the end of subparagraph (b)(i) is a previous stylistic oversight.

ITEMS 21, 22 AND 23 - SUBSECTIONS 15(2), 15(4) AND 15(5)

2.34 These items will insert references to new section 15A in section 15 of the Extradition Act. This is consequential to item 24, which will insert new section 15A.

2.35 Section 15 enables a person who is arrested under an extradition arrest warrant to be held on remand. New section 15A will enable a person who is on remand to waive extradition prior to the Attorney-General issuing a notice under section 16 of the Act. Subsections 15(2) and 15(4) will be amended to insert references to section 15A, to reflect that persons held on remand under section 15 will be able to elect to waive extradition.

2.36 Subsection 15(5) will be amended to insert a reference to section 15A, to reflect that a person on remand who is transferred, either in custody or on bail, to a specified State or Territory will be able to elect to waive extradition.

ITEM 24 - AFTER SECTION 15

2.37 This item will insert new sections 15A and 15B after section 15 of the Extradition Act. Currently, a person who consents to being extradited by Australia to a foreign country can spend up to six months in custody in Australia. This delay is largely due to the multiple stages in the current consent process. Sections 15A and 15B will enable a person to waive extradition. This will provide persons with the option to either waive extradition or use the existing consent process. A person who elects to use the waiver of extradition process should reduce the overall time they spend in custody in Australia.

NEW SECTION 15A

2.38 New section 15A will set out the process for a person to elect to waive extradition. New subsections 15A(1) and (2) will establish the categories of persons who may elect to waive extradition. New subsection 15A(1) will apply to a person who is on remand but the Attorney-General has not made a decision whether or not to give a notice in relation to him or her under subsection 16(1). This will cover the situation where a person has been provisionally arrested before the extradition country has made a full formal extradition request to Australia.

2.39 New subsection 15A(2) will apply to a person who is on remand under section 15 if the Attorney-General has given a notice under section 16 but the magistrate has not yet advised the Attorney-General that the person has consented to being surrendered under subparagraph 18(2)(b)(ii), or determined that the person is eligible for surrender under subsection 19(1). This will cover the situation where the extradition country has made an extradition request and the Attorney-General has issued a notice stating that the request has been received.

2.40 New subsection 15A(3) will provide that a person may inform a magistrate that he or she wishes to waive extradition in relation to:

•

the extradition offence or all of the offences specified in the extradition arrest warrant (if an extradition request has not been made) or

•

the extradition offence or all of the offences for which surrender is sought (if an extradition request has been made).

2.41 It will not be possible to waive extradition with regard to only some of the extradition offences listed on the extradition warrant.

2.42 New subsection 15A(4) will require a magistrate, if satisfied of the matters listed in new paragraphs 15A(5)(a), (c) and (d), and if the person has been informed as mentioned in new paragraph 15A(5)(b), to order that the person be committed to prison pending a determination by the Attorney-General about surrender under new subsection 15B(2), and to advise the Attorney-General in writing that the person wishes to waive extradition for the relevant offences.

2.43 New paragraph 15A(5)(a) will require the magistrate to be satisfied, before ordering a person to be committed to prison pursuant to subsection 15A(4), that the person's election to waive extradition was voluntary. New paragraph 15A(5)(b) will also require the magistrate to inform the person that:

•

once the order that they be committed to prison is made, they cannot apply to have the order revoked

•

the country to which they will be extradited may not have given, and will not be required to give, a speciality assurance to the effect that that they will not be tried or punished for an offence committed before their surrender other than an offence for which extradition was sought

•

certain requirements in the Extradition Act that would otherwise apply to him or her (such as requirements relating to extradition objections) will not apply, and

•

if the Attorney-General determines that he or she should be surrendered in accordance with new section 15B, they will be so surrendered.

2.44 While this new provision will have result in the foreign country not being required to give a speciality assurance, this will not impact on a person's rights. This is because although in most circumstances a speciality assurance would not have been given, new subsection 15B(2) (which requires the Attorney-General to have regard to all the circumstances when deciding whether to surrender a person who has waived extradition), in conjunction with the requirements of new subsection 15B(3) (refuse to surrender where there are torture or death penalty concerns) would still require the Attorney-General to consider the risk of the person being tried for offences other than those included in the extradition request and the possibility of a person being subject to the death penalty or torture as a result. Further, the rule of speciality is a standard provision incorporated into the majority of Australia's bilateral extradition treaties.

2.45 Therefore, if the Attorney-General has substantial concerns that the person would be in danger of being subjected to torture, or if the Attorney-General is satisfied that there is a real risk that the death penalty will be carried out, the Attorney-General will not be able to surrender the person.

2.46 Having informed the person as mentioned in paragraph 15A(5)(b), the magistrate will be required to be satisfied that the person has confirmed that he or she wishes to waive extradition, and that the person is legally represented or was given adequate opportunity to be legally represented. This will ensure that the person is fully informed of all the consequences of waiving extradition.

2.47 New subsection 15A(6) will provide that if a person informs a magistrate that he or she wishes to waive extradition, no further steps in the extradition process are to be taken during the time at which the magistrate is determining whether to make an order under subsection 15A(4). This means that if a person, who has been provisionally arrested, elects to waive extradition, the Attorney-General may not give a notice under subsection 16(1). It also means that if a person, in relation to whom a notice under subsection 16(1) has already been given, elects to waive extradition, sections 18 and 19 (which relate to consent to surrender and determination of eligibility for surrender) do not apply, and any related proceedings are stayed.

2.48 New subsection 15A(7) will provide that if the magistrate is not satisfied of the matters listed in paragraphs 15A(5)(a), (c) and (d), the magistrate must advise the Attorney-General in writing that he or she has decided not to make an order under paragraph 15A(4)(a) committing the person to prison pending a surrender determination by the Attorney-General. This will mean the person is then subject to the ordinary extradition process.

NEW SECTION 15B

2.49 New section 15B will set out the process for the Attorney-General to determine if a person should be surrendered, having been notified by a magistrate that the person has elected to waive extradition.

2.50 New subsection 15B(2) will provide that the Attorney-General must, as soon as reasonably practicable, having regard to all the circumstances, determine whether or not the person should be surrendered. New subsection 15B(3) will provide that the Attorney-General may only determine the person be surrendered if he or she:

•

does not have substantial grounds for believing that, if the person were surrendered, the person would be in danger of being subjected to torture, and

•

is satisfied that on surrender, there is no risk the death penalty will be carried out upon the person in relation to any offence.

2.51 This provides safeguards to ensure a person who waives his or her extradition is not at risk of being subject to the death penalty or torture on return to the requesting country.

2.52 New subsection 15B(4) will provide that if the Attorney-General determines that the person is not to be surrendered, the Attorney-General must, by notice in writing in the statutory form, direct a magistrate to order the release of the person from custody.

ITEM 25 - AT THE END OF SECTION 17

2.53 This item will add new subsections 17(4) and (5) at the end of section 17 of the Extradition Act. Section 17 sets out the circumstances in which a person may be released from remand. Subsection 17(2) enables a magistrate to order a person's release from custody where he or she has been held on remand for over 45 days (or another length of time stipulated in the relevant Regulations) and a section 16 notice has not been given.

2.54 New subsections 17(4) and 17(5) will provide that subsection 17(2) will not apply to a person who has elected to waive extradition, unless and until the magistrate decides not to accept the person's election to waive. This is appropriate as new paragraph 15A(6)(a) will prevent the Attorney-General from issuing a section 16 notice while the issue of waiver is under consideration. The 45 day time period would resume on the day after the Attorney-General receives the magistrate's advice that the person's election to waive extradition has not been accepted.

ITEM 26 - SECTION 23

2.55 This item will insert the words '15B(2) or' after 'subsection' in section 23 of the Extradition Act. This amendment is consequential to new section 15B which will be inserted by item 24.

2.56 Existing section 23 provides that where the Attorney-General has determined under subsection 22(2) that a person is to be surrendered to an extradition country, the Attorney-General must issue a warrant for the surrender of the person, unless the Attorney-General issues a temporary surrender warrant. This item will amend this provision to ensure it applies to circumstances in which the Attorney-General has made a determination that a person is to be surrendered under the new subsection 15B(2) (i.e. surrender following waiver of extradition).

ITEM 27 - PARAGRAPH 24(1)(A)

2.57 This item will insert the words '15B(2) or' after 'subsection' in paragraph 24(1)(a) of the Extradition Act. This amendment is consequential to the inclusion of new section 15B by item 24.

2.58 Section 24 currently provides that where the Attorney-General has determined under subsection 22(2) that a person is to be surrendered to an extradition country, the Attorney-General may issue a temporary surrender warrant. This item will amend this provision to ensure it applies to circumstances in which the Attorney-General has made a determination that a person is to be surrendered under new subsection 15B(2) (i.e. surrender following waiver of extradition).

ITEM 28 - SUBSECTION 25(2)

2.59 This item will amend subsection 25(2) of the Extradition Act so that the conditions for the issue of a section 25 surrender warrant under that subsection only apply to surrender warrants issued after a temporary surrender warrant was previously issued following a subsection 22(2) determination. A subsection 22(2) determination is one which results from the usual extradition process being carried out (as distinct from surrender which results from a person electing to waive the extradition process).

2.60 This amendment has the effect that the conditions for issuing a section 25 surrender warrant under subsection 25(2) do not apply to surrender warrants issued after a temporary surrender warrant was previously issued following a subsection 15B(2) determination (waiver of extradition). In this situation, the more limited conditions provided by new subsection 25(3) apply (which will be inserted by Item 30).

ITEM 29 - AFTER PARAGRAPH 25(2)(A)

2.61 This item will insert a new paragraph 25(2)(ba) after existing paragraph 25(2)(a). New paragraph 25(2)(ba) will set out an additional condition for the issue of a section 25 surrender warrant after a temporary surrender warrant was previously issued following a subsection 22(2) determination of surrender. This additional condition is that the Attorney-General does not have substantial grounds for believing that, if the person were surrendered, the person would be in danger of being subjected to torture. This will ensure that the issue of potential torture of a person following surrender is considered in every determination of surrender, including in the determination of section 25 surrenders.

ITEM 30 - AT THE END OF SECTION 25

2.62 This item will insert a new subsection 25(3) at the end of existing section 25. New subsection 25(3) will set out the relevant grounds of refusal for surrender if the Attorney-General determines that a person is to be surrendered under section 25, after a temporary surrender warrant has previously been issued following a determination that a person is to be surrendered under new subsection 15B(2).

2.63 The Attorney-General may only issue a surrender warrant under subsection 25(1) if the Attorney-General:

•

does not have substantial grounds for believing that, if the person were surrendered, the person would be in danger of being subjected to torture, and

•

is satisfied that on surrender, there is no risk the death penalty will be carried out upon the person in relation to any offence.

2.64 These grounds of refusal are consistent with the grounds of refusal that would have applied when the person waived the extradition process (see new section 15B which will be inserted by item 24).

ITEM 31 - PARAGRAPH 45(4)(B)

2.65 This item will amend paragraph 45(4)(b) of the Extradition Act to insert the words '15B or' after 'section'. This amendment is consequential to new section 15B which will be inserted by item 24. This amendment has the effect that the Attorney-General may give consent for the prosecution, instead of extradition, of certain Australian citizens, but only if a determination not to surrender under sections 22 or 15B has been made.

ITEM 32 - APPLICATION OF AMENDMENTS MADE BY THIS PART

2.66 This item will provide that the amendments in Part 2 of Schedule 2 which relate to waiver of extradition apply to a person who, on or after the commencement of this item, is on remand under section 15 of the Extradition Act.

PART 3 - OTHER AMENDMENTS

DIVISION 1 - AMENDMENTS RELATING TO POLITICAL OFFENCES

EXTRADITION ACT 1988

ITEM 33 - SECTION 5 (PARAGRAPHS (A) TO (D) OF THE DEFINITION OF POLITICAL OFFENCE)

2.67 By virtue of section 7 of the Extradition Act, a person cannot be extradited from Australia for a political offence. A political offence is defined in section 5 of the Extradition Act as an offence against the law of the foreign country that is of a political character. The definition in section 5 of the Act provides that certain offences are not 'political offences'. The Bill will amend section 5 to expressly exclude the following from the political offence definition:

•

an offence that involves an act of violence against a person's life or liberty

•

an offence prescribed by regulations for the purposes of paragraph 5(b) to be an extraditable offence in relation to the country or all countries, and

•

an offence prescribed by regulations for the purposes of paragraph 5(c) not to be a political offence in relation to the country or all countries.

2.68 These amendments will streamline the 'political offence' definition by ensuring that exceptions to the definition are generally contained in regulations, rather than in the Act. The amendments are consistent with the United Nations Model Extradition Treaty, which states that countries may wish to exclude from the definition of 'political offence' certain conduct, for example, serious offences involving an act of violence against the life, physical integrity or liberty of a person.

2.69 Australia is party to a large number of bilateral and multilateral treaties, many of which require parties to ensure that certain offences are extraditable offences, or are not to be considered political offences for the purposes of extradition. Australia implements its obligations under these treaties by providing that such offences are excluded from the definition of political offence in the Extradition Act. Exemptions are currently set out in both the Extradition Act and the Regulations. Providing for exceptions to the political offence definition to be set out in Regulations, rather than the Extradition Act, will ensure the extradition regime can be kept up-to-date with Australia's international obligations without requiring frequent amendments to the Extradition Act.

2.70 It is intended that the Regulations will also expressly exclude from the definition of political offence other conduct which, if the conduct occurred in Australia, would constitute a terrorism, genocide or war crimes offence or a crime against humanity. The Regulations will also make clear that an offence constituted by the murder, kidnapping or other attack on a head of state or head of government, or his or her family, is not considered a political offence for the purposes of Australia's extradition law.

ITEM 34 - AT THE END OF PARAGRAPHS 7(A), (B) AND (C)

2.71 This item will make a technical correction by adding 'or' to the end of paragraphs 7(a), (b) and (c). This will correct a previous stylistic oversight.

MIGRATION ACT 1958

ITEM 35 - SUBSECTION 91T(3)

2.72 This item will amend subsection 91T(3) of the Migration Act, which refers to the definition of 'political offence' in the Extradition Act. This amendment is consequential to the amendment that will be made by item 33 of this Schedule.

ITEM 36 - APPLICATION

2.73 This item sets out the application of the amendments made by Division 1 of Part 3 of Schedule 2 of the Bill. The amendments in this Division will apply in respect of extradition requests made by a foreign country on or after the commencement of this item. This item will commence on Proclamation.

DIVISION 2 - EXTRADITION OBJECTION ON THE GROUNDS OF SEX AND SEXUAL ORIENTATION

EXTRADITION ACT 1988

ITEM 37 - PARAGRAPHS 7(B) AND (C)

2.74 Currently, a person cannot be extradited where there is an 'extradition objection' as defined in section 7 of the Extradition Act. This includes where surrender is sought for the purpose of punishing the person on account of his or her race, religion, nationality, political opinions or for a political offence (paragraph 7(b)), or where the person may be prejudiced on surrender on the basis of any of these factors (paragraph 7(c)).

2.75 This item will insert the words 'sex, sexual orientation,' after the reference to 'race' in paragraphs 7(b) and (c). This will ensure that extradition must be refused if the surrender of the person is sought for the purpose of prosecuting or punishing the person on account of his or her sex or sexual orientation, or where the person may be discriminated against upon surrender on the basis of his or her sex or sexual orientation.

2.76 Although Australia does not have an obligation under international law to refuse extradition where a person may be subject to discrimination on the basis of their sex or sexual orientation, these amendments will demonstrate Australia's firm position against this type of discrimination. It will also bring Australia's legislation in line with that of comparable jurisdictions, such as New Zealand, the United Kingdom and Canada. A similar amendment to the MA Act will be made by Part 1 of Schedule 3.

ITEM 38 - APPLICATION OF AMENDMENT MADE BY ITEM 37

2.77 This item will set out the application of the amendments made by item 37. The amendments will apply in relation to an extradition request from an extradition country that is made on or after the commencement of item 37. Item 37 will commence on a date to be set by Proclamation.

DIVISION 3 - NOTICE OF RECEIPT OF EXTRADITION REQUEST

OVERVIEW

2.78 Division 3 of Part 3 of Schedule 2 of the Bill will limit the factors the Attorney-General is statutorily required to consider before giving a notice under section 16 of the Extradition Act accepting an extradition request. The issue of a notice accepting an extradition request is a precondition to the conduct of extradition proceedings by a magistrate.

2.79 Limiting the factors the Attorney-General is statutorily required to consider before giving a notice will streamline the early stages of the extradition process and facilitate consideration of eligibility for surrender by a magistrate more quickly. This may reduce the overall time spent in custody.

EXTRADITION ACT 1988

ITEM 39 - SUBSECTION 10(3)

2.80 This item will omit 'subparagraph 16(2)(a)(ii) or paragraph' and substitute 'or' in subsection 10(3). This amendment is consequential to the removal of subparagraph 16(2)(a)(ii) which will be done by item 41.

ITEM 40 - SUBPARAGRAPH 12(3)(C)(I)

2.81 This item will omit 'issue' and substitute 'give' in subparagraph 12(3)(c)(i). This amendment will make the current reference to the Attorney-General's 'issue' of a notice under subparagraph 12(3)(c)(i) consistent with the wording of subsection 16(1), which is that the Attorney-General decides to 'give' a notice.

ITEM 41 - SUBSECTION 16(2)

2.82 Under existing section 16 of the Extradition Act, the Attorney-General must not give a notice accepting an extradition request:

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unless he or she is satisfied that:

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the person is an extraditable person in relation to the extradition country (subparagraph 16(2)(a)(i)), and

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the criminal conduct alleged against the person sought for extradition would be an offence in Australia (subparagraph 16(2)(a)(ii)); or

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if the Attorney-General is of the opinion that there is an extradition objection in relation to the extradition offence (paragraph 16(2)(b)).

2.83 This item will repeal existing subsection 16(2) and insert new subsection 16(2), which will provide that the Attorney-General is only required to consider whether a person is an 'extraditable person' in relation to the extradition country, in determining whether to exercise his or her discretion to give a notice accepting the extradition request. An 'extraditable person' is defined in section 6 of the Extradition Act.

2.84 The factors in current subparagraph 16(2)(a)(ii) and paragraph 16(2)(b) will continue to be assessed by a magistrate in determining whether a person is eligible for surrender to the extradition country (under paragraphs 19(2)(c) and 19(2)(d)) while the factor in paragraph 16(2)(b) will also be assessed by the Attorney-General in making a final surrender determination under section 22 of the Extradition Act.

2.85 This amendment is intended to remove the existing overlap in consideration of the same factors by both the Attorney-General at the section 16 stage and a magistrate, and thereby streamline the extradition process.

ITEM 42 - SUBSECTION 16(3)

2.86 This item will omit 'issued' and substitute 'given' in subsection 16(3) of the Extradition Act. This amendment will make the current reference to the Attorney-General's 'issue' of a notice under subsection 16(3) consistent with the wording of subsection 16(1), which is that the Attorney-General decides to 'give' a notice.

ITEM 43 - APPLICATION OF AMENDMENTS MADE BY THIS DIVISION

2.87 This item will set out the application of the amendments made by Division 3 of Part 3 of Schedule 2 of the Bill. The amendments apply in relation to an extradition request from an extradition country that is made on or after the commencement of this item. This item will commence upon Proclamation.

DIVISION 4 - CONSENT TO ACCESSORY EXTRADITION

OVERVIEW

2.88 The amendments in Division 4 of Part 3 of Schedule 2 of the Bill will provide persons with an opportunity to consent to being extradited for a wider range of offences. Currently, section 18 of the Extradition Act allows a person to consent to surrender for 'extradition offences' in respect of which the Attorney-General has given a notice under subsection 16(1). 'Extradition offence' is defined in section 5 of the Extradition Act, and means an offence punishable by at least 12 months imprisonment. Section 20 of the Extradition Act allows a person who has either consented to his or her surrender (under section 18) or been found eligible for surrender by a magistrate in respect of 'extradition offences' to consent to also being surrendered for offences that are not 'extradition offences' (known as 'consent to accessory extradition'). This enables a person to have all outstanding charges dealt with upon their return to the foreign country.

2.89 A person may wish to consent to surrender for an offence, even though Australia could not extradite the person for that offence under the Extradition Act (for example because the foreign country has not yet issued a warrant in respect of that offence). This may be because a person may wish to have all outstanding charges dealt with in one process on return to the country so as to serve any resulting sentences concurrently.

2.90 The amendments in Division 4 of Part 3 of Schedule 2 of the Bill will clarify that a person can consent to accessory extradition for offences punishable by more than 12 months imprisonment that are listed in the extradition request but which are not listed in the notice accepting the extradition request. This will ensure that persons facing extradition have the option to face all charges in the foreign country simultaneously.

2.91 The amendments will require a magistrate to be satisfied that there is no extradition objection in relation to any of the additional extradition offences before asking the person whether he or she consents to being surrendered in respect of those offences.

EXTRADITION ACT 1988

ITEM 44 - AFTER SECTION 19

2.92 This item will insert new section 19A after section 19 of the Extradition Act. New subsection 19A(1) will set out when section 19A applies. It will provide that section 19A applies if:

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a notice under subsection 16(1) has been given in relation to a person who is the subject of an extradition request from an extradition country, and

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in proceedings under section 18, the person consents to being surrendered to the extradition country in relation to the extradition offence or all the extradition offences to which the notice relates, or

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in proceedings under subsection 19(1), a magistrate determines the person is eligible for surrender to the extradition country in relation to one or more of the extradition offences to which the notice relates, and

•

the extradition country had requested in the extradition request that the person be surrendered for one or more extradition offences (additional extradition offences) that are not specified in the notice.

2.93 New subsection 19A(2) will require the magistrate, in proceedings under section 18 or subsection 19(1), to ask the person whether he or she consents to accessory extradition if the magistrate is satisfied that there is no 'extradition objection' in relation to any of the additional extradition offences. 'Extradition objections' are set out in section 7 of the Extradition Act. Subsection 19A(2) will ensure that human rights safeguards which currently apply where a person consents to extradition, also apply where a person consents to accessory extradition.

2.94 New subsection 19A(3) will contain safeguards designed to ensure the person is fully informed, and protect the person from consenting to accessory extradition without being aware of the implications of that consent. New subsection 19A(3) will require that before asking the person if he or she consents to surrender in respect of the additional extradition offences, the magistrate must first:

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be satisfied that the person is legally represented or give the person an adequate opportunity to be legally represented

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inform the person that if the person consents to surrender for any additional extradition offences he or she may be tried and sentenced in the extradition country for any of those additional extradition offences, and

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inform the person that he or she may be tried and sentenced in the extradition country even though, had the conduct of the person constituting the additional extradition offences, or equivalent conduct, taken place in Australia at the time the extradition request was received, that conduct may not have constituted an extradition offence in relation to Australia.

2.95 New subsection 19A(4) will provide that where a person has given his or her consent to being surrendered in accordance with section 19A, the magistrate must, unless he or she considers the consent was not given voluntarily, advise the Attorney-General in writing of the additional extradition offences in respect of which the person has consented. This will ensure that the Attorney-General is informed of all offences relevant to his or her surrender determination under section 22 of the Extradition Act. Under section 22, if a magistrate has determined a person is 'eligible for surrender', or if a person has consented to extradition (including accessory extradition), the Attorney-General must decide whether or not to surrender the person.

ITEM 45 - SUBSECTION 22(1) (DEFINITION OF QUALIFYING EXTRADITION OFFENCE)

2.96 This item will repeal the definition of qualifying extradition offence in subsection 22(1) of the Extradition Act. This definition enables the Attorney-General to make a surrender determination under section 22 for extradition offences in relation to which the person consented to surrender (under section 18) or a magistrate has determined eligibility for surrender (under section 19), or a court, on appeal, has confirmed the magistrate's determination of eligibility for surrender (under section 21). The Attorney-General cannot make a surrender determination under section 22 for offences that are not 'extradition offences' in relation to which a person consents to surrender (under section 20).

2.97 The amendment will include a new definition of qualifying extradition offence which will include:

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any extradition offence in relation to which the person consented in accordance with section 18

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any extradition offence in relation to which a magistrate, or a court conducting final review proceedings under section 21, determines that the person is eligible for surrender within the meaning of subsection 19(2), or

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in any case, any extradition offence in relation to which the person has consented in accordance with section 19A.

2.98 The new definition will ensure that any additional extradition offences for which the person consents to being surrendered will be included in the definition of qualifying extradition offence , enabling the Attorney-General to make a surrender determination under section 22 for the additional extradition offences.

DIVISION 5 - EXTRADITION TO AUSTRALIA FROM OTHER COUNTRIES

OVERVIEW

2.99 Division 5 of Part 3 of Schedule 2 of the Bill will enable the Attorney-General to give a legally enforceable undertaking to the requested country as to the maximum sentence that could be imposed on a person, before the person is extradited to Australia. This undertaking could either state that life imprisonment will not be imposed on the person or specify the maximum period of imprisonment that may be imposed on the person.

2.100 Some countries are prohibited under their laws from surrendering a person to other countries unless an undertaking is provided about the maximum sentence that may be imposed on the person. For example, a country's Constitution may prohibit extradition if the person may be subject to life imprisonment on surrender. This can cause considerable difficulty in cases where the offender may technically be liable to a life sentence, but there is no likelihood of such a sentence being imposed given the circumstances of the offence. In such cases, unless Australia is able to provide a sufficient undertaking, extradition will be refused and the person could be released.

2.101 This amendment will enable Australia to provide legally enforceable undertakings, in appropriate circumstances, which will allow the person to be surrendered to Australia to face charges. For an offence that is to be prosecuted in a State or Territory, the Commonwealth Attorney-General will be required to consult with the Attorney-General of the State or Territory before giving an undertaking.

ITEM 46 - AT THE END OF PART IV

2.102 This item will insert new section 44A into the Extradition Act. New subsection 44A(1) will set out when the new section will apply and the circumstances in which the Attorney-General may give an undertaking. Subsection 44(1) will enable the Attorney-General, before a person is surrendered to Australia, to give an undertaking:

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that life imprisonment will not be imposed on the person if he or she is found guilty in Australia, or

•

specifying the maximum period of imprisonment that may be imposed on the person if he or she is found guilty in Australia.

2.103 New subsection 44A(2) will ensure that Australian courts give effect to the Attorney-General's undertaking by providing that a person must not, under a law of the Commonwealth, a State or Territory, be sentenced to life imprisonment (where subparagraph 44A(1)(b)(i) applies) or a period of imprisonment that is more than the period specified in the Attorney-General's undertaking (where subparagraph 44A(1)(b)(ii) applies).

2.104 New subsection 44A(3) requires the Attorney-General to consult with the Attorney-General of the State or Territory where the offence is to be prosecuted before giving an undertaking under section 44A. This is because there may be circumstances where the undertaking could not be upheld, for example because the offence is subject to a mandatory sentence in that State or Territory. An undertaking would not be entered into where it would be in breach of domestic laws.

2.105 New subsection 44A(4) will provide that where an undertaking in subsection 44A(1) is given in writing, the undertaking is not a legislative instrument within the meaning of section 5 of the Acts Interpretation Act 1901 .

2.106 New subsection 44A(5) is intended to make clear that the Attorney-General cannot give an undertaking under subsection 44A(1) as to the maximum sentence that may be imposed on a person which is greater than (a) the maximum sentence that applies to the offence, or (b) in the case of multiple offences, the total of each maximum period of imprisonment that applies to each offence.

DIVISION 6 - PROSECUTION IN LIEU OF EXTRADITION

OVERVIEW

2.107 Currently, a person can only be prosecuted in Australia in lieu of extradition under section 45 of the Extradition Act in limited circumstances where the extradition has been refused on the basis that the person is an Australian citizen. Division 6 will amend section 45 of the Extradition Act to enable a person to be prosecuted in any circumstances where Australia has refused extradition.

2.108 This amendment will assist in preventing Australia from becoming an attractive safe haven for fugitives from countries whose criminal justice systems might give rise to grounds for refusal under the Extradition Act.

ITEM 47 - SUBSECTIONS 45(1), (2) AND (3)

2.109 Section 45 currently enables the Attorney-General to consent to Australian citizens being prosecuted for an extradition offence (or extradition offences) in Australia instead of being surrendered to an extradition country. This item will repeal existing subsections 45(1), 45(2) and 45(3) of the Act, and replace them with new subsections 45(1), 45(2), 45(3), 45(3A), 45(3B), 45(3C) and 45(3D). The amendments will enable the Attorney-General to consent to prosecution of persons in lieu of their extradition in all circumstances and regardless of their nationality.

2.110 This item can be explained with the following example: Person X kills person Y in country Z, then flees to Australia. Country Z requests the extradition of person X, but the Attorney-General refuses the request on the basis of concerns that person X will be subjected to torture in country Z. Item 47 will facilitate the prosecution of person X in Australia in lieu of his or her extradition to country Z.

2.111 New subsection 45(1) will create an offence against person X to facilitate his or her prosecution in Australia. In order to establish this offence, first, the prosecution must prove that person X has been remanded in a State or Territory by order of a magistrate under section 15 of the Extradition Act. This will establish a nexus to the extradition process, as remand can only occur pursuant to section 15 if a person is arrested under an extradition arrest warrant issued in response to a request made by a foreign country.

2.112 Second, the prosecution must prove that person X has engaged in conduct outside Australia at an earlier time, which would have constituted an offence had the conduct or equivalent conduct occurred in Australia. This will be referred to as the 'notional Australian offence'.

2.113 The phrase 'at an earlier time' in new paragraph 45(1)(b) will refer to a time prior to person X's remand under section 15 of the Act. This is because, under subsection 45(4), the Attorney-General shall only consent to a prosecution under section 45 in relation to an extradition offence (or extradition offences) for which surrender has been refused under section 22 of the Act. Accordingly, the conduct which will be captured by this offence will be limited to the conduct for which the Attorney-General refused surrender, and could not include, for example, illegal conduct which person X may have engaged in, in his or her past which is not the subject of the particular extradition request or conduct which the person may engage in after their remand under section 15. This means person X will not be vulnerable to prosecution for offences which he or she may have committed, or may commit, over a potentially indefinite period of time.

2.114 The phrase 'equivalent conduct' in new paragraph 45(1)(c) is intended to cover circumstances where an element of the relevant foreign offence is analogous but not identical to a corresponding element of the relevant Australian offence (for example, in Australia, conduct equivalent to defrauding the United States Internal Revenue Service will be defrauding the Australian Taxation Office).

2.115 Subsection 45(2) will outline that absolute liability will attach to new paragraphs 45(1)(a) and 45(1)(b) and to the circumstances in paragraph 45(1)(c). This will mean that the prosecution need not prove person X was reckless as to the elements required to establish the offence under subsection 45(1). This will clarify that new paragraphs 45(1)(a), 45(1)(b) and 45(1)(c) will effectively be factual pre-conditions for the existence of the offence. This will ensure that the prosecution is not required to prove that the person intended to engage in conduct outside Australia at an earlier time or that the person was reckless as to whether that conduct would have constituted an offence in Australia had the conduct or equivalent conduct occurred in Australia. Further, new subsection 45(3) will set out the physical and fault elements that need to be established by the prosecution.

2.116 New subsection 45(3) will explain how the prosecution is to prove the 'notional Australian offence'. New paragraph 45(3)(a) will require the prosecution to prove the physical and fault elements applicable to the 'notional Australian offence'. In the example above, person X's conduct constitutes the Australian offence of murder. Accordingly, the prosecution will be required to prove the physical and fault elements for the offence of murder in the State or Territory in which person X is on remand. Assuming person X was held on remand in Queensland, the prosecution will be required to prove the physical and fault elements for the offence of murder under Queensland law.

2.117 The phrase 'however described' in new paragraph 45(3)(a) will encompass concepts such as mens rea and actus reus (that is, elements of an offence which have not been codified in legislation and are therefore not described as 'physical' and 'fault' elements).

2.118 New paragraph 45(3)(b) will provide that any defences or special liability provisions that apply in relation to the notional Australian offence will have effect. Using the example above, if person X was held on remand in Queensland, then any defences (for example, self-defence) or special liability provisions applicable to the offence of murder in Queensland will apply. 'Special liability provision' is defined in the Dictionary to the Criminal Code (Cth) to mean:

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a provision that provides that absolute liability applies to one or more (but not all) of the physical elements of an offence

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a provision that provides that, in a prosecution of an offence, it is not necessary to prove that the defendant knew a particular thing, or

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a provision that provides that, in a prosecution for an offence, it is not necessary to prove that the defendant knew or believed a particular thing.

2.119 The phrase 'however described' in new paragraph 45(3)(b) will include defences or special liability provisions that are not described as such in State or Territory legislation.

2.120 New paragraph 45(3)(c) will provide that any procedures or limitations that apply in relation to the notional Australian offence will have effect. This will ensure that any applicable limitation period for the notional Australian offence would apply, as would any relevant procedure in relation to the offence, such as offering suitable protections for vulnerable witnesses.

2.121 The phrase 'however described' in new paragraph 45(3)(c) will include procedures or limitations that are not described as such in State or Territory legislation.

2.122 Division 1 of Part X and subsection 79(1) of the Judiciary Act 1903 apply State and Territory procedural laws in relation to persons charged with Commonwealth offences. New subsection 45(3A) will clarify that new subsection 45(3) is not intended to override or replace the Judiciary Act provisions.

2.123 New subsection 45(3B) will apply the maximum penalty applicable to the notional Australian offence at the time the conduct occurred. Using the example above, that will be the maximum penalty for the offence of murder under Queensland law at the time person X killed person Y in country Z. This will ensure person X will not be liable for a harsher maximum penalty than was applicable when the offence was committed. This is consistent with Australia's international obligations under Article 15 of the International Covenant on Civil and Political Rights.

2.124 New subsection 45(3C) will clarify that the offence is an indictable offence. This will ensure that prosecutions for such offences are held before a jury, as section 80 of the Constitution requires jury trials for indictable Commonwealth offences. In practice, the conduct constituting the 'notional Australian offence' in this offence would generally constitute an indictable offence, as all extradition treaties to which Australia is party do not permit extradition for offences punishable by a maximum penalty of less than 12 months imprisonment.

2.125 New subsection 45(3D) will provide that the Attorney-General's written consent is required for offence proceedings to be instituted. This is consistent with the current provision governing prosecution in lieu of extradition. The Attorney-General would have discretion to refer the matter to the relevant law enforcement agency for investigation and the DPP for prosecution. The DPP would need to independently assess whether a prosecution should be undertaken in accordance with its Prosecution Policy. The Prosecution Policy requires the DPP to be satisfied that there is sufficient evidence to prosecute the case, and that it is evident from the facts of the case and all the surrounding circumstances that the prosecution would be in the public interest.

2.126 Existing subsection 45(4) (which will be amended by items 49 to 52) will continue to provide for when the Attorney-General can give his or her consent to a prosecution in lieu of extradition.

ITEM 48 - APPLICATION OF ITEM 47

2.127 This item will clarify that the amendments to the offence provision in section 45 of the Extradition Act will not apply retrospectively.

ITEM 49 - SUBSECTION 45(4)

2.128 This item will remove the reference to 'subsection (3)' in subsection 45(4) and replace it with 'subsection (3D)'. This change is a consequence of item 47, which will repeal existing subsections 45(1), (2) and (3) and replace them with new subsections. As new subsection 45(3D) will require the Attorney-General's consent for proceedings to take place, this item will replace the reference to subsection 45(3) with subsection 45(3D).

ITEM 50 - PARAGRAPH 45(4)(A)

2.129 This item will remove the reference to 'paragraph (1)(a)' and replace it with 'paragraph (1)(b); and'. This change is a consequence of item 47, which will repeal existing subsection 45(1) and replace it with a new subsection. As new paragraph 45(1)(b) will refer to conduct for which an extradition country has sought the surrender of a person, this item will replace the reference to paragraph (1)(a) with a reference to paragraph (1)(b).

ITEM 51 - PARAGRAPH 45(4)(B)

2.130 This item will omit the reference to 'country; and' in paragraph 45(4)(b) and replace it with 'country.' This is a consequence of item 52, which will repeal existing paragraph 45(4)(c).

ITEM 52 - PARAGRAPH 45(4)(C)

2.131 Existing paragraph 45(4)(c) provides that the Attorney-General can only give his or her consent for prosecution in lieu of extradition if:

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the Attorney-General made a determination not to surrender a person because the person was an Australian citizen at the time of committing the offence

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the extradition country would not have surrendered the person to Australia if the situation was reversed, and

•

the Attorney-General intended to give his or her consent for prosecution in lieu of extradition.

2.132 This item will repeal the limitations to prosecution in lieu of extradition in paragraph 45(4)(c). This will enable Australia to prosecute a person regardless of their nationality, and regardless of whether the extradition country would not have surrendered the person to Australia if the situation had been reversed.

2.133 This will assist in preventing Australia from becoming an attractive safe haven for fugitives from countries whose criminal justice systems might give rise to grounds for refusal under the Extradition Act. For example, where there are concerns about torture or the death penalty.

ITEM 53 - APPLICATION OF THE AMENDMENT MADE BY ITEM 52

2.134 This item will provide that the amendment made by item 52 will apply in respect of an extradition request made by an extradition country if the request is made on or after the commencement of this item. This item is to commence on a date to be fixed by Proclamation.

ITEM 54 - SUBSECTION 45(5)

2.135 This item will remove the reference to 'subsection (3)' in subsection 45(5) and replaces it with 'subsection (3D)'. This change is a consequence of item 47, which will repeal existing subsections 45(1), (2) and (3) and replace them with new subsections. As new subsection 45(3D) will require the Attorney-General's consent for proceedings to take place, this item will replace the reference to subsection 45(3) with subsection 45(3D).

DIVISION 7 - TECHNICAL AMENDMENTS RELATING TO NOTICES

OVERVIEW

2.136 Division 7 of Part 3 of Schedule 2 of the Bill will make various minor and technical amendments to the provisions in the Extradition Act which provide for the Attorney-General to give notices. The Extradition Act makes provision for the Attorney-General to give notices at various stages of the extradition process, for example, notices stating that an extradition request has been received (section 16) and notices directing a magistrate to release a person from remand (section 17).

ITEM 55 - AFTER SECTION 16

2.137 Section 16 provides for the Attorney-General to issue a notice to a magistrate stating that a formal extradition request has been received. In some cases it may be desirable for the Attorney-General to amend a section 16 notice after the notice is given, for example, to rectify a minor deficiency or to add additional extradition offences that satisfy the requirements under the Extradition Act. Currently subsection 10(4) of the Extradition Act refers to a section 16 notice as including the notice as amended. This implies that a section 16 notice can be amended, however, there is no express power under the Extradition Act for the Attorney-General to amend the section 16 notice and the Extradition Act does not specify the processes for making such an amendment.

2.138 This item will insert a new section 16A, after existing section 16, to make specific provision for the Attorney-General to amend a notice of receipt of an extradition request given under section 16 of the Extradition Act. Section 16A will enable the Attorney-General to amend the notice at any time up until the magistrate determines the person eligible for surrender, or the person consents to surrender under section 18.

2.139 New subsection 16A(1) will set out when section 16A applies. This will provide that section 16A applies if the Attorney-General has given a notice (the original notice) under subsection 16(1) of the Extradition Act in relation to a person.

2.140 New subsection 16A(2) will provide that the Attorney-General may, in his or her discretion, give an amended notice at any time before:

•

the person consents to surrender under section 18 in relation to the extradition offence or extradition offences specified in the original notice, or

•

a magistrate determines the person eligible for surrender in relation to the extradition offence or extradition offences specified in the original notice.

2.141 New subsection 16A(3) will provide that the amended notice must be in writing in the statutory form expressed to be directed to any magistrate. This will ensure that the magistrate is informed of any amendments to the notice.

2.142 New subsection 16A(4) will provide that if the amended notice lists new extradition offences, the Attorney-General may only give the notice if the requirements of section 16 of the Extradition Act are satisfied with respect to the new offences. This will mean that the Attorney-General may only give the amended notice containing the new offences if he or she could have given a notice in relation to those offences under section 16. This will ensure all new offences in the amended notice comply with the requirements set out in section 16.

2.143 New subsection 16A(5) will provide that a reference to a notice given under subsection 16(1) in the Extradition Act includes a reference to an amended notice given under subsection 16A(2). This will ensure that provisions in the Extradition Act which apply to notices given under subsection 16(1) will also apply to amended notices given under new subsection 16A(2).

2.144 New subsection 16A(6) will provide that an amended notice given under subsection 16A(2) is not a legislative instrument. This will clarify that a notice given under subsection 16A(2) is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 .

2.145 New subsection 16A(7) will provide that as soon as practicable after the person is remanded under section 15, or an amended notice is given under subsection 16A(2), whichever is later, a copy of the amended notice and, if the amended notice specifies one or more extradition offences that were not in the original notice, copies of relevant documents relating to the offence(s), must be given to the person. This will ensure the person is kept informed of the case against him or her, including information relating to the offences for which he or she is being sought for extradition.

2.146 New subsection 16A(8) will provide that section 16A does not limit the power of the Attorney-General to revoke the original notice in accordance with subsection 33(3) of the Acts Interpretation Act 1901 . Subsection 33(3) of the Acts Interpretation Act 1901 provides that where an Act confers a power to make, grant or issue any instrument, the power shall, unless the contrary intention appears, be construed as including a power to repeal, rescind, revoke, amend, or vary any such instrument.

ITEM 56 - PARAGRAPH 17(1)(A)

2.147 This item will replace the reference to 'issue' in paragraph 17(1)(a) with 'give' to make the language of paragraph 17(1)(a) consistent with references to the Attorney-General 'giving' notice under section 16 and other provisions in the Extradition Act.

ITEM 57 - AFTER SUBSECTION 18(1)

2.148 This item will insert a new subsection 18(1A), after existing subsection 18(1), into the Extradition Act. New subsection 18(1A) will provide that where the Attorney-General gives an amended notice under new section 16A (which will be inserted by item 55) containing new offences while consent to surrender proceedings are being conducted under section 18, the magistrate may adjourn proceedings to give the person additional time to inform the magistrate about whether the person consents to be surrendered in relation to any of those new offences. This will ensure a person has an appropriate amount of time to consider whether to consent to the new offences.

ITEM 58 - AFTER SUBSECTION 19(4)

2.149 This item will insert a new subsection 19(4A), after existing subsection 19(4), into the Extradition Act. New subsection 19(4A) will provide that where the Attorney-General gives an amended notice under new section 16A (which will be inserted by item 55) containing new offences while determination of eligibility for surrender proceedings are being conducted under section 19, the magistrate may, if he or she considers it necessary, adjourn proceedings to give the person and the extradition country additional time to prepare for the conduct of proceedings. This will ensure a person and the extradition country have an appropriate amount of time to prepare for the conduct of proceedings involving the new offences.

ITEM 59 - SUBSECTION 43(1)

2.150 Section 43 allows the Attorney-General to authorise the taking of evidence for use in any proceedings for the surrender of that person to Australia where the Attorney-General suspects that the person is an extraditable person in relation to Australia. This item will insert 'expressed to be directed to any magistrate' after the reference to 'statutory form' in subsection 43(1). This amendment is to clarify that where the Attorney-General authorises, by notice in writing in the statutory form, the taking of evidence under section 43, it is to be directed to a magistrate.

ITEM 60 - AFTER SECTION 46

2.151 The Extradition Act makes provision for the Attorney-General to give notices at various stages of the extradition process including, for example, notices stating that an extradition request has been received (section 16) and notices directing a magistrate to release a person from remand (section 17). This item will insert new section 46A, after existing section 46, into the Act. New section 46A will set out the process by which a notice may be 'given' and the time at which such notices are taken to be given. The time at which a notice is taken to be 'given' by the Attorney-General can be particularly relevant in determining if the Attorney-General has given a section 16 notice within the 45 day period specified in section 17 of the Act.

2.152 Subsection 46A(1) will provide that new section 46A will apply to notices (under subsection 16(1)), amended notices (under new subsection 16A(2)), as well as other types of notices given by the Attorney-General to a magistrate (under subsections 43(1), 12(3), 15B(4) or 17(1)).

2.153 Subsection 46A(2) will provide that when a notice, or copy of the notice, is to be given to a magistrate, it may be handed to a magistrate in person or sent to a magistrate by post, fax, email or other electronic means. Subsection 46A(3) will provide that the notice is taken to be given at the time at which the notice, or a copy of the notice, is handed to the magistrate, or delivered in the ordinary course of post, or at the time at which the fax, email or other electronic communication is sent to the magistrate (whichever is relevant). For example, if an email is sent to the magistrate on 1 July 2011, then that is when the notice is taken to be given, regardless of when the magistrate actually views the email.

ITEM 61 - APPLICATION - SECTION 16A OF THE EXTRADITION ACT 1988

2.154 This item will provide that new section 16A, which will be inserted by item 55, will apply in relation to a notice given under subsection 16(1) of the Act, after the commencement of this item. This item will commence on a date to be fixed by Proclamation.

ITEM 62 - APPLICATION - SECTION 46A OF THE EXTRADITION ACT 1988

2.155 This item provides that new section 46A, which will be inserted by item 60, will apply in relation to a notice given under subsections 16(1), 16A(2) or 43(1) of the Extradition Act, if the Attorney-General gives notice on or after the commencement of this item. This item will commence on a date to be fixed by Proclamation.

2.156 This item will also provide that new section 46A, which will be inserted by item 60, will apply to a notice under subsection 12(3) or 17(1) of the Extradition Act if the Attorney General is required to give notice on or after the commencement of this item. This item will commence on a date to be fixed by Proclamation.

DIVISION 8 - AMENDMENTS RELATING TO REMAND AND BAIL

OVERVIEW

2.157 This Division will make amendments to extend the availability of bail in the extradition process. This Division will also make amendments to provide the Attorney-General with an additional five days in which to consider whether to issue a section 16 notice stating that an extradition request has been received.

EXTRADITION ACT 1988

ITEM 63 - PARAGRAPH 17(2)(B)

2.158 The effect of existing paragraph 17(2)(b) is that, where a person is arrested on a provisional arrest warrant in urgent circumstances, the person shall be brought before a magistrate who shall determine if the person is to be released from custody if the Attorney-General has not issued a notice stating that a formal extradition request has been received (a 'section 16 notice') within 45 days. The period of 45 days may be varied through Regulations. This item will repeal existing paragraph 17(2)(b) and replace it with a new paragraph 17(2)(b).

2.159 New paragraph 17(2)(b) will provide that where a person is arrested on a provisional arrest warrant in urgent circumstances, and the Attorney-General has not received an extradition request or has received such a request but has not issued a section 16 notice within five days after the period of days referred to in paragraph 17(2)(a) (i.e. 45 days), then the person is to be brought before a magistrate.

2.160 The effect of new paragraph 17(2)(b) will be that the Attorney-General is given an additional five days following the receipt of an extradition request to consider the request and determine whether to issue a section 16 notice. Many of Australia's treaties with other countries require an extradition request to be made within a certain period of a person being arrested on a provisional arrest warrant. However, the Extradition Act requires the Attorney-General to issue a section 16 notice within that same period.

2.161 In circumstances where a person has been provisionally arrested and the Attorney-General receives the extradition request on the last day of the specified time period, he or she may not have sufficient time to consider the request and determine whether to issue the section 16 notice. This amendment would allow the Attorney-General an additional five days following the receipt of an extradition request for the Attorney-General to consider the request and determine whether to issue a section 16 notice.

2.162 The other requirement in existing paragraph 17(2)(b) for what the magistrate must do once a person has been brought before him or her will be removed by item 64, and provided in new subsection 17(2A), which will be inserted by item 65.

ITEM 64 - SUBSECTION 17(2)

2.163 Subsection 17(2) of the Extradition Act provides that where a person is arrested on a provisional arrest warrant in urgent circumstances, they must be brought before a magistrate if a formal extradition request is not received or the Attorney-General decides not to issue a section 16 notice within a specified period of the person being held on remand. This item will remove all the words after the third occurring reference to 'the person' in subsection 17(2) and replace them with 'must be brought before a magistrate'. This amendment removes the provision for what a magistrate must do once a person has been brought before him or her under existing subsection 17. This is because this requirement will be outlined in amended form in a new subsection 17(2A), which will be inserted by item 65.

ITEM 65 - AFTER SUBSECTION 17(2)

2.164 This item will insert a new subsection 17(2A), after existing subsection 17(2), into the Extradition Act. Subsection 17(2) provides that a person who has been arrested on a provisional arrest warrant and placed on remand must be brought before a magistrate if the Attorney-General has not given a section 16 notice within a specified period of the person being held on remand.

2.165 New subsection 17(2A) will provide that once the person is brought before a magistrate, the magistrate would be required to release the person or discharge the recognisances on which bail was granted to the person except:

•

where the Attorney-General has not received a formal extradition request from the extradition country in relation to the person, if:

•

exceptional circumstances have prevented the extradition country from providing an extradition request (subparagraph 17(2A)(a)(i))

•

the Attorney-General is likely to receive an extradition request within a particular time that is reasonable in the circumstances (subparagraph 17(2A)(a)(ii)), and

•

after receiving the extradition request, the Attorney-General is likely to make a decision to give or not to give a section 16 notice within a particular period that is reasonable in the circumstances (subparagraph 17(2A)(a)(iii)).

•

where the Attorney-General has received a formal extradition request but a section 16 notice has not been given, if:

•

the Attorney-General is likely to make a decision to give, or not to give, a section 16 notice within a particular period that is reasonable in the circumstances (paragraph 17(2A)(b)).

2.166 This amendment will better align the operation of the Extradition Act with Australia's obligations under bilateral extradition treaties and would ensure the Attorney-General has sufficient opportunity to give due consideration to extradition requests before issuing a section 16 notice. This provision will also clearly delineate the circumstances in which a person can continue to be held on remand, and thereby provide greater certainty for persons subject to an extradition request or potentially subject to an extradition request.

ITEM 66 - PARAGRAPHS 17(3)(A) AND (B)

2.167 This item will repeal existing paragraphs 17(3)(a) and (b) and replace them with new paragraphs 17(3)(a) and (b). The new paragraphs will provide that a magistrate must order the release of a person from custody, or discharge any recognisances on which bail was granted, as the case requires, if:

•

the formal extradition request is not received within the particular period (as anticipated under new subparagraph 17(2A)(a)(ii)), or

•

the decision to give or not to give a section 16 notice is not made within the particular period (as anticipated under new subparagraph 17(2A)(a)(iii) or new paragraph 17(2A)(b)).

2.168 This amendment of existing paragraphs 17(3)(a) and (b) is necessary as a consequence of the changes that will be made by item 65.

ITEM 67 - SUBPARAGRAPH 18(2)(A)(I)

2.169 This item will insert ', or subject to subsection (3), released on bail' after the reference to 'prison' in subparagraph 18(2)(a)(i). This amendment is a consequence of the extension of the availability of bail, which will be inserted by item 68.

ITEM 68 - PARAGRAPH 18(2)(B)

2.170 Currently under the Extradition Act, a person may be remanded on bail during the early stages of the extradition process if special circumstances exist. However, once a person is determined by a magistrate to be eligible for surrender, he or she must be committed to prison. Under paragraph 18(2)(b), the person must also be committed to prison, once he or she consents to extradition. This item will repeal existing paragraph 18(2)(b) and replace it with a new paragraph 18(2)(b), which will extend the availability of bail to persons who have consented to extradition.

2.171 New paragraph 18(2)(b) will provide that if the person consents to being surrendered, the magistrate shall order that the person be committed to prison or, subject to new subsection 18(3) (which will be inserted by item 69), released on bail to await:

•

surrender under a surrender warrant or temporary surrender warrant, or

•

release, or the discharge of the recognisances on which bail was granted, under an order under subsection 22(5).

2.172 Extending the availability of bail to situations where a person consents to extradition will ensure the Extradition Act is sufficiently flexible to accommodate extenuating circumstances that may justify granting a person bail. New section 49B, which will be inserted by item 84, will provide that a decision by a court to release a person on bail may be made on such terms and conditions as the court or magistrate thinks fit.

ITEM 69 - AT THE END OF SECTION 18

2.173 This item will insert new subsections 18(3), 18(4) and 18(5) at the end of section 18 of the Extradition Act. New paragraph 18(2)(b), which will be inserted by item 68, will allow a person to be released on bail if the person consents to being surrendered. Subsection 18(3) will provide that a magistrate must not release a person on bail where the person consents to surrender under section 18, unless there are special circumstances justifying such release. This aligns with the circumstances in which bail can be granted under section 15, which provides for a person who is arrested under the Extradition Act to be placed on remand for the purposes of consent to surrender proceedings under section 18 or determination of eligibility for surrender proceedings under section 19.

2.174 This reflects the current presumption against bail under subsection 15(6) for persons who seek to be released on bail upon consent to being surrendered under new paragraph 18(2)(b). Creating a presumption against bail for persons sought for extradition is appropriate given the serious flight risk posed in extradition matters and Australia's international obligations to secure the return of alleged offenders to face justice in the requesting country. The High Court in United Mexican States v Cabal ^[1] has previously observed that to grant bail where a risk of flight exists would jeopardise Australia's relationship with the country seeking extradition and jeopardise our standing in the international community. New section 49B, which will be inserted by item 84, will provide that any decision under the Extradition Act of a court or a magistrate to remand or release a person on bail may be made on such terms and conditions as the court or magistrate thinks fit. The presumption against bail unless there are special circumstances and new section 49B will assist Australia to meet its international obligations to secure the return of alleged offenders to face justice in the requesting country.

2.175 New subsection 18(4) will provide that if a magistrate makes an order committing the person to prison or releasing the person on bail under paragraph 18(2)(b), the magistrate must advise the Attorney-General in writing of the offence or offences in respect of which the person has consented to surrender. This replicates the requirement under existing subparagraph 18(2)(b)(ii), which will be repealed by item 68, and will ensure that the Attorney-General is notified of extradition offences which the person has consented to and which he or she must ultimately decide whether to extradite the person in relation to.

2.176 New subsection 18(5) will provide that an order committing a person to prison under paragraph 18(2)(b) must be made by warrant in the statutory form. This replicates the requirement under existing subparagraph 18(2)(b)(i), which will be repealed by item 68.

ITEM 70 - PARAGRAPH 19(9)(A)

2.177 Existing paragraph 19(9)(a) of the Extradition Act provides that where a magistrate determines that a person is eligible for surrender, the magistrate shall order the person be committed to prison to await surrender. This item will repeal existing paragraph 19(9)(a) and insert a new paragraph 19(9)(a). This item will extend the availability of bail to persons who have been determined eligible for surrender by a magistrate.

2.178 New paragraph 19(9)(a) will provide that if the magistrate determines the person is eligible for surrender, the magistrate shall order that the person be committed to prison or (subject to new subsection 19(9A), which will be inserted by item 72), released on bail, to await surrender under a surrender warrant or temporary surrender warrant. However, if the Attorney-General decides not to surrender the person, new paragraph 19(9)(a) will require the magistrate to order the release of the person, or the discharge of the recognisances on which bail was granted, under an order under subsection 22(5).

2.179 Extending the availability of bail to a person following a magistrate's determination that the person is eligible for surrender will ensure the Extradition Act is sufficiently flexible to accommodate extenuating circumstances that may justify granting a person bail.

ITEM 71 - PARAGRAPH 19(9)(B)

2.180 This item will remove the reference to 'in the warrant is made, seek a review of the order' in paragraph 19(9)(b) and substitute it with 'under paragraph (a) is made, seek a review of the order'. This amendment is a consequence of the changes that will be made by item 70.

2.181 Amended paragraph 19(9)(b) will require the magistrate to inform the person that they can seek a review of the order under subsection 21(1) within 15 days after the day on which the order under paragraph 19(9)(a) is made. An order under amended paragraph 19(9)(a) could be made by warrant if the person is committed to prison, but it could also be an order that the person be released on bail (which would not be required to be made by warrant).

ITEM 72 - AFTER SUBSECTION 19(9)

2.182 This item will insert new subsections 19(9A) and 19(9B) after subsection 19(9). Subsection 19(9A) will provide that a magistrate must not release a person on bail where the magistrate determines that the person is eligible for surrender under paragraph 19(9)(a), unless there are special circumstances justifying such release. This reflects the current presumption against bail under subsection 15(6) of the Extradition Act.

2.183 Creating a presumption against bail for persons sought for extradition is appropriate given the serious flight risk posed in extradition matters and Australia's international obligations to secure the return of alleged offenders to face justice in the requesting country. The High Court in United Mexican States v Cabal ^[2] has previously observed that to grant bail where a risk of flight exists would jeopardise Australia's relationship with the country seeking extradition and jeopardise our standing in the international community.

2.184 New section 49B, which will be inserted by item 84, will provide that any decision under the Extradition Act of a court or a magistrate to remand or release a person on bail may be made on such terms and conditions as the court or magistrate thinks fit. The presumption against bail unless there are special circumstances justifying such a release and new section 49B will assist Australia to meet its international obligations to secure the return of alleged offenders to face justice in the requesting country.

2.185 Subsection 19(9B) will provide that an order committing a person to prison under paragraph 19(9)(a) must be made by warrant in the statutory form. This replicates the requirement under existing paragraph 19(9)(a), which will be removed by item 70.

ITEM 73 - PARAGRAPH 21(2)(B)

2.186 Existing paragraph 21(2)(b) provides that upon review of a magistrate's determination of eligibility for surrender, the Court may quash the original order of the magistrate and direct the magistrate to release the person or commit the person to prison to await surrender. This item will repeal existing paragraph 21(2)(b) and substitute it with a new paragraph 21(2)(b), which will simply provide that the Court may quash the order made by the magistrate. New subsection 21(2A) (which will be inserted by item 74) will provide for the orders the Court must make if a Court quashes its order.

ITEM 74 - AFTER SUBSECTION 21(2)

2.187 This item will insert new subsections 21(2A), 21(2B) and 21(2C) after subsection 21(2) (which will be amended by item 73). New subsection 21(2A) will set out the orders the Federal Court must make if it quashes an order of a magistrate under subsection 19(9) or (10).

•

If the magistrate made an order under subsection 19(9) (that the person is eligible for surrender) and the Federal Court quashes that order - the Federal Court must also order the release of the person or the discharge of the recognisances on which bail was granted. This ensures a person is released and no longer subject to extradition processes.

•

If the magistrate made an order under subsection 19(10) (that the person is not eligible for surrender) and the Federal Court quashes that order - the Federal Court must also order that the person be committed to prison or (subject to new subsection (2B)) released on bail, to await surrender under a surrender warrant or a temporary surrender warrant or to await release, or the discharge of the recognisances on which bail was granted, under an order under subsection 22(5).

2.188 The orders for the discharge of the recognisances on which bail was granted, or for the person to be released on bail under new subsection 21(2A) are additional to what is currently provided under existing subsection 21(2). This is a consequence of the extension of bail to the later stages of the extradition process that will be made by item 70.

2.189 New subsection 21(2B) will provide that the Federal Court must not release a person on bail under new paragraph 21(2A)(b) unless there are special circumstances justifying such release. Maintaining this presumption against bail for orders made by the Federal Court on appeal is appropriate given the serious flight risk posed in extradition matters and Australia's international obligations to secure the return of alleged offenders to face justice. The High Court in United Mexican States v Cabal ^[3] has previously observed that to grant bail where a risk of flight exists would jeopardise Australia's relationship with the country seeking extradition and jeopardise our standing in the international community.

2.190 New section 49B, which will be inserted by item 84, will provide that any decision under the Extradition Act of a court or a magistrate to remand or release a person on bail may be made on such terms and conditions as the court or magistrate thinks fit. The presumption against bail unless there are special circumstances justifying such a release and new section 49B will assist Australia to meet its international obligations to secure the return of alleged offenders to face justice in the requesting country.

2.191 New subsection 21(2C) will provide that an order by the Federal Court, on appeal, committing a person to prison under paragraph 21(2A)(b) must be made by a warrant in the statutory form.

ITEM 75 - PARAGRAPH 21(6)(E)

2.192 Existing paragraph 21(6)(e) provides that where an extradition country applies for review of a magistrate's order or institutes any subsequent appeal under section 21 of the Extradition Act in circumstances where a person has been released because of an order by a magistrate or a court on appeal, the court to which the application or appeal is made may order the arrest of the person. This item will repeal existing paragraph 21(6)(e) and substitute it with a new paragraph 21(6)(e).

2.193 New paragraph 21(6)(e) will provide that the court may, if the person was released on bail, order both the discharge of the recognisances on which bail was granted and the arrest of the person. This additional order will be necessary as a consequence of the extension of bail to the later stages of the extradition process that will be made by item 70.

ITEM 76 - SUBPARAGRAPH 21(6)(F)(I)

2.194 Existing subparagraph 21(6)(f)(i) provides that if, because of an order by a magistrate at first instance, or by a court on appeal, the person has been remanded in custody, the court to which an application for review or appeal has been made may order the person's release on bail until the review has been conducted or appeal heard. This item will repeal existing subparagraph 21(6)(f)(i) and substitute it with a new subparagraph 21(6)(f)(i), which will more generally provide that if an order for the release of the person has not been made, the court to which an application for review or appeal has been made may order the person's release on bail until the review has been conducted or appeal heard. It will simplify the existing subparagraph 21(6)(f)(i) by not specifying the source of the order not to release the person.

ITEM 77 - SUBPARAGRAPH 21(6)(F)(IV)

2.195 Subparagraph 21(6)(f)(iv) provides that if a person has been remanded in custody, the court hearing an application for review or an appeal may, if there are special circumstances justifying such a course, order the release on bail of the person on such terms and conditions as the court thinks fits.

2.196 This item will remove the reference to 'on such terms and conditions as the court thinks fit' in subparagraph 21(6)(f)(iv). These words will not be necessary as a consequence of new section 49B, which will be inserted by item 84. New section 49B will provide that any decision under the Extradition Act of a court or a magistrate to remand or release a person on bail may be made on such terms and conditions as the court or magistrate thinks fit.

ITEM 78 - SUBSECTION 22(1) (DEFINITION OF ELIGIBLE PERSON)

2.197 This item will amend the definition of eligible person in subsection 22(1) by inserting the words 'or released on bail' after 'prison'. This is to reflect the changes which will be made by items 68 and 70, which will extend the availability of bail to a person following a determination by a magistrate that he or she is eligible for surrender or his or her consent to extradition.

ITEM 79 - SUBSECTION 22(1) (PARAGRAPH (B) OF DEFINITION OF ELIGIBLE PERSON)

2.198 This item will repeal existing paragraph (b) of the definition of eligible person and replace it with a new paragraph (b). New paragraph (b) will update cross-references to relevant provisions under which a person may be committed to prison or released on bail by order of a magistrate. These updates are necessary as a consequence of new subsection 21(2A) (which will be inserted by item 74), which will replace the content of subparagraph 21(2)(b)(ii), and the changes to section 19 (which will be made by item 71).

2.199 As a result, a person will be an eligible person for the purposes of a surrender determination by the Attorney-General if they have been committed to prison or released on bail following a determination of eligibility for surrender by a magistrate under subsection 19(9) or a decision by the Federal Court to quash a magistrate's determination that the person is not eligible for surrender on appeal under subsection 21(2A) and no further appeal proceedings are being conducted or are available.

ITEM 80 - SUBSECTION 22(5)

2.200 Subsection 22(5) of the Extradition Act requires the Attorney-General to order, in writing, the release of a person where the Attorney-General determines that the person is not to be surrendered to the extradition country.

2.201 This item will remove the reference to 'the Attorney-General shall order, in writing, the release of the person' in subsection 22(5) and replace it with 'the Attorney-General must, by notice in writing, direct a magistrate to order:

•

if the person has been committed to prison - the release of the person; or

•

if the person has been released on bail - the discharge of the recognisances on which bail was granted.'.

2.202 This amendment is a consequence of the extension of the availability of bail to a person following his or her determination of eligibility for surrender by a magistrate or his or her consent to extradition.

ITEM 81 - PARAGRAPH 26(1)(C)

2.203 Section 26 provides for the form and execution of surrender warrants and temporary surrender warrants. Paragraph 26(1)(c) provides that a surrender warrant or a temporary surrender warrant shall require the person who is being held in custody to be released into the custody of a police officer. This allows the police officer to execute the surrender warrant. This item will insert 'if the person has been committed to prison - ' before the reference to 'require' in paragraph 26(1)(c). This amendment is a consequence of the extension of the availability of bail to a person following a determination by a magistrate that he or she is eligible for surrender or his or her consent to extradition, which means that a person the subject of a surrender warrant may not always be held in custody. New paragraph 26(1)(ca), which will be inserted by item 82, will provide for the situation where a surrender warrant is executed against a person who is released on bail.

ITEM 82 - AFTER PARAGRAPH 26(1)(C)

2.204 This item will insert new paragraph 26(1)(ca) after existing paragraph 26(1)(c) of the Extradition Act. New paragraph 26(1)(ca) will provide that if the person is released on bail, a surrender warrant or a temporary surrender warrant in relation to a person shall authorise any police officer to take the person into custody and to take the person before a magistrate or, if a court made the order releasing the person on bail, before that court for the purposes of the discharge of the recognisances on which bail was granted (if necessary). This item is a consequence of the extension of the availability of bail to a person following a determination by a magistrate that he or she is eligible for surrender or after his or her consent to extradition (items 68 and 70). It is also a consequence of the extension of the availability of bail to a person where the Federal Court quashes a magistrate's order to release the person and makes a new order that the person should be committed to prison pending a surrender determination (item 74).

ITEM 83 - SUBPARAGRAPH 35(6)(G)(IV)

2.205 Subparagraph 35(6)(g)(iv) of the Extradition Act provides that if a person has been remanded in custody in the execution of an extradition request from New Zealand, the court hearing the application for review or on appeal may, if there are special circumstances justifying such a course, order the release on bail of the person on such terms and conditions as the court thinks fits. This item will remove the words 'on such terms and conditions as the court thinks fit' from subparagraph 35(6)(g)(iv). These words will not be necessary as a consequence of new section 49B, which will be inserted by item 84. New section 49B will provide that any decision under the Extradition Act of a court or a magistrate to remand or release a person on bail may be made on such terms and conditions as the court or magistrate thinks fit.

ITEM 84 - AFTER SECTION 49A

2.206 This item will insert new sections 49B and 49C after existing section 49A. New section 49B will provide that a decision under the Extradition Act of a court or a magistrate to remand or release a person on bail may be made on such terms and conditions as the court or magistrate thinks fit. There will be various stages of the extradition process where a court or magistrate is able to release a person on bail including where a person has consented to extradition, where a magistrate determines that a person is eligible for surrender, and where the Federal Court quashes a determination of the magistrate that a person is not eligible for surrender, on appeal. New section 49B will cover all instances where a court or magistrate decides to remand or release a person on bail.

2.207 New section 49C extends the availability of bail to where a person seeks review of the Attorney-General's decision to surrender a person under subsection 22(2) or 15B (which will be inserted by item 24). Subsections 49C(1) and 49C(2) will provide that if the Attorney-General determines that a person is to be surrendered, and the person applies to a court for judicial review of the determination, the court to which the application is made, or any court hearing a subsequent appeal, may order the release of the person on bail until the application has been determined or the appeal has been heard. Subsection 49C(3) provides that a court must not release a person on bail unless there are special circumstances justifying such release. Maintaining this presumption against bail where a person seeks review of the Attorney-General's decision to surrender a person is appropriate given the serious flight risk posed in extradition matters and Australia's international obligations to secure the return of alleged offenders to face justice in the requesting country. The High Court in United Mexican States v Cabal ^[4] has previously observed that to grant bail where a risk of flight exists would jeopardise Australia's relationship with the country seeking extradition and jeopardise our standing in the international community.

2.208 New section 49B will provide that any decision under the Extradition Act of a court or a magistrate to remand or release a person on bail may be made on such terms and conditions as the court or magistrate thinks fit. The presumption against bail unless there are special circumstances justifying such a release and new section 49B will assist Australia to meet its international obligations to secure the return of alleged offenders to face justice in the requesting country.

ITEM 85 - APPLICATION

2.209 This item will provide that the amendments of subsections 17(2) and (3) of the Extradition Act, which will be made by items 63, 64, 65 and 66 will only apply to a person who is remanded under section 15 of the Extradition Act on or after the commencement of this item. This item will commence on a date to be fixed by Proclamation.

DIVISION 9 - OTHER MINOR TECHNICAL AMENDMENTS

OVERVIEW

2.210 Division 9 will make a series of minor and technical amendments to the Extradition Act. A number of these amendments will simplify the language of the Extradition Act and rectify technical drafting issues.

EXTRADITION ACT 1988

ITEM 86 - SECTION 5

2.211 This item will insert a definition of extraditable person in section 5 to have the meaning given by section 6. This will correct a previous omission to define this term.

ITEM 87 - SECTION 5

2.212 This item will insert a definition of extradition arrest warrant in section 5 to mean a warrant issued under section 12. The inclusion of this new definition is a consequence of items 94, 96, and 98, which will change references to 'a provisional arrest warrant' in Part II of the Extradition Act to refer to 'an extradition arrest warrant'.

ITEM 88 - SECTION 5 (AT THE END OF PARAGRAPH (A) OF THE DEFINITION OF EXTRADITION COUNTRY)

2.213 This item will add 'or' at the end of paragraph (a) of the definition of extradition country to correct a previous typographical oversight.

ITEM 89 - SECTION 5 (SUBPARAGRAPH (B)(II) OF THE DEFINITION OF EXTRADITION COUNTRY)

2.214 This item will remove the reference to 'responsible; and', and substitute it with 'responsible; or' in subparagraph (b)(ii) of the definition of extradition country . This will correct a previous typographical oversight.

ITEM 90 - SECTION 5

2.215 This item will insert a definition of extradition objection to have the meaning given by section 7. This will correct a previous omission to define this term.

ITEM 91 - SECTION 5 (DEFINITION OF PROVISIONAL ARREST WARRANT)

2.216 This item will repeal the existing definition of provisional arrest warrant in section 5 of the Extradition Act, and substitute it with a new definition to mean a warrant issued under section 29. The new definition will exclude warrants issued under section 12, for the purposes of Part II of the Extradition Act (which covers extradition from Australia to extradition countries other than New Zealand). The amendment in this item is a consequence of items 94, 96, and 98, which will change all references to 'a provisional arrest warrant' in Part II to refer to 'an extradition arrest warrant'.

ITEM 92 - SECTION 5 (BEFORE SUBPARAGRAPH (B)(I) OF THE DEFINITION OF SURRENDER WARRANT)

2.217 Existing subparagraph (b)(i) of the definition of surrender warrant in section 5 provides that, where the expression is used in Part III of the Extradition Act, a surrender warrant means a warrant issued or required to be issued under paragraph 34(1)(c).

2.218 This item will insert a new subparagraph (b)(ia) before subparagraph (b)(i) of the definition of surrender warrant . New subparagraph (b)(ia) will provide that a surrender warrant when referred to in Part III will also mean 'a warrant issued, or required to be issued, under subparagraph 33A(2)(b)(i)'. This is a warrant issued following a person consenting to surrender to New Zealand.

ITEM 93 - AT THE END OF SECTION 12

2.219 Subsection 12(3) provides that where a magistrate has issued a provisional arrest warrant, but the person has not yet been arrested under the warrant and the Attorney-General decides not to proceed with the extradition process or considers for any other reason that the warrant should be cancelled, the Attorney-General must by notice in writing in the statutory form, direct a magistrate to cancel the warrant. This item will insert a new subsection 12(4) at the end of existing section 12. New subsection 12(4) will provide that a notice given under subsection 12(3) is not a legislative instrument. This provision is intended to clarify any existing uncertainty about whether a notice given under subsection 12(3) is a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 .

2.220 This item will also replace the existing heading for section 12, 'Provisional arrest warrants', with 'Extradition arrest warrants'. Section 12 enables a magistrate to issue a warrant for a person's arrest either before or after a full formal extradition request has been received by Australia. Generally, in an international context, 'provisional arrest' refers to circumstances in which a person is arrested in urgent circumstances before receipt of a full extradition request. Therefore, the heading for section 12, 'provisional arrest warrants', will be changed to 'extradition arrest warrants' to avoid any implication that warrants issued under section 12 are limited to those issued in urgent circumstances prior to the Attorney-General issuing a section 16 notice.

ITEM 94 - PARAGRAPHS 13(1)(A) AND (2)(A)

2.221 This item will remove the references to 'a provisional arrest warrant' in paragraphs 13(1)(a) and 13(2)(a) and replace them with 'an extradition arrest warrant'. The references to 'provisional arrest warrant' in these paragraphs refer to a warrant issued under section 12. Section 12 enables a magistrate to issue a warrant for a person's arrest either before or after a full formal extradition request has been received by Australia. Generally, in an international context, 'provisional arrest' refers to circumstances in which a person is arrested in urgent circumstances before receipt of a full extradition request.

2.222 Item 93 will change the heading of section 12 to refer to extradition arrest warrants to avoid any implication that warrants issued under section 12 are limited to those issued in urgent circumstances prior to the Attorney-General issuing a section 16 notice. As a consequence of the change that will be made by item 93, this item will change references to 'provisional arrest warrants' in paragraphs 13(1)(a) and 13(2)(a) to 'extradition arrest warrants'.

ITEM 95 - AT THE END OF SECTION 13

2.223 Subsection 13(5) provides that a police officer may retain any property or thing seized upon or following the arrest of a person under a provisional arrest warrant pending any direction from the Attorney-General as to the manner in which the thing is to be dealt with. This item will add a new subsection 13(8) at the end of existing section 13. New subsection 13(8) provides that if a direction under subsection 13(5) is given in writing, the direction is not a legislative instrument. This provision is intended to clarify any existing uncertainty about whether a direction given under subsection 13(5) is a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 .

ITEM 96 - PARAGRAPH 14(1)(A)

2.224 This item will remove the reference to 'a provisional arrest warrant' in paragraph 14(1)(a) and substitute it with 'an extradition arrest warrant'. The reference to 'provisional arrest warrant' in paragraph 14(1)(a) refers to a warrant issued under section 12. Section 12 enables a magistrate to issue a warrant for a person's arrest either before or after a full formal extradition request has been received by Australia. Generally, in an international context, 'provisional arrest' refers to circumstances in which a person is arrested in urgent circumstances before receipt of a full extradition request.

2.225 Item 93 will change the heading of section 12 to refer to extradition arrest warrants to avoid any implication that warrants issued under section 12 are limited to those issued in urgent circumstances prior to the Attorney-General issuing a section 16 notice. As a consequence of the change that will be made by item 93, this item will change the reference to 'provisional arrest warrant' in paragraph 14(1)(a) to 'extradition arrest warrant'.

ITEM 97 - AFTER SUBSECTION 14(5)

2.226 Subsection 14(5) provides that where a police officer seizes a thing in the execution of a search and seizure warrant under section 14, the police officer may retain the thing pending any direction from the Attorney-General as to the manner in which it is to be dealt with. This item will insert a new subsection 14(5A) after existing subsection 14(5). New subsection 14(5A) provides that if a direction under subsection 14(5) is given in writing, the direction is not a legislative instrument. This provision is intended to clarify any existing uncertainty about whether a direction given under subsection 14(5) is a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 .

ITEM 98 - SUBSECTION 15(1)

2.227 This item will remove the reference to 'a provisional arrest warrant' in subsection 15(1) and replace it with 'an extradition arrest warrant'. The reference to 'provisional arrest warrant' in subsection 15(1) refers to a warrant issued under section 12. Section 12 enables a magistrate to issue a warrant for a person's arrest either before or after a full formal extradition request has been received by Australia. Generally, in an international context, 'provisional arrest' refers to circumstances in which a person is arrested in urgent circumstances before receipt of a full extradition request.

2.228 Item 93 will change the heading of section 12 to refer to an extradition arrest warrant to avoid any implication that warrants issued under section 12 are limited to those issued in urgent circumstances prior to the Attorney-General issuing a section 16 notice. As a consequence of the change that will be made by item 93, this item will change the reference to 'a provisional arrest warrant' in subsection 15(1) to 'an extradition arrest warrant'.

ITEM 99 - AT THE END OF SECTION 16

2.229 Subsection 16(1) provides that where the Attorney-General receives an extradition request, he or she may give a notice to a magistrate stating that the request has been received. This item will add a new subsection 16(4) at the end of existing section 16. New subsection 16(4) will provide that a notice given under subsection 16(1) is not a legislative instrument. This provision is intended to clarify any existing uncertainty about whether a notice given under subsection 16(1) is a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 .

ITEM 100 - AT THE END OF SECTION 17

2.230 Subsection 17(1) provides that where a person is on remand pending the Attorney-General's decision whether to issue a notice of receipt of the formal extradition request, and the Attorney-General decides not to issue a notice, or considers for any other reason that the remand should cease, the Attorney-General must by notice in writing direct a magistrate to release the person from custody or discharge any conditions on which bail was granted (whichever is applicable). This item will add a new subsection 17(6) at the end of existing section 17. New subsection 17(6) will provide that a notice given under subsection 17(1) is not a legislative instrument. This provision is intended to clarify any existing uncertainty about whether a notice given under subsection 17(1) is a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 .

ITEM 101 - PARAGRAPH 21(6)(D)

2.231 Existing paragraph 21(6)(d) provides that where a person or the extradition country applies for a review of the magistrate's order determining whether a person is eligible for surrender, or institutes a subsequent appeal, the court to which the application or appeal is made must only have regard to the material that was before the magistrate. This item will insert 'subject to section 21A' before the reference to 'the court' in paragraph 21(6)(d). This amendment is a consequence of new section 21A (which will be inserted by item 102). New section 21A will make it clear that if a review court considers evidence was wrongly excluded in the extradition proceedings, the review court may consider the wrongly excluded evidence as well as further evidence or submissions directly relating to the excluded evidence.

2.232 The effect of this amendment is that the requirement for a review court to 'have regard only to the material that was before the magistrate' during section 19 proceedings is subject to new section 21A.

ITEM 102 - AFTER SECTION 21

2.233 Paragraph 21(6)(d) provides that where a person or the extradition country applies for review of a magistrate's decision about eligibility for surrender, the review court may 'have regard only to the material that was before the magistrate' during the section 19 proceedings. While it is likely that the review court would interpret paragraph 21(6)(d) as enabling the court to consider material that was 'before' the magistrate but wrongly excluded, it is not clear whether the review court could then hear further submissions on the wrongly excluded material. For example, if the review court were able to consider material tendered by the person but wrongly excluded by the magistrate, it is not clear under paragraph 21(6)(d) whether the requesting country could adduce any further evidence, or make any submissions relating to the wrongly excluded material.

2.234 This item will insert a new section 21A after existing section 21, which will make it clear that if a review court considers evidence was wrongly excluded in the extradition proceedings, the review court may receive the wrongly excluded evidence as well as further evidence or submissions directly relating to the excluded evidence.

2.235 Subsection 21A(1) will provide that section 21A applies if a person or extradition country applies under subsection 21(1) for a review of an order of a magistrate, appeals under subsection 21(3) against an order made on that review, or appeals to the High Court against an order made on that appeal. This will cover all possible stages of the appeal process.

2.236 Subsection 21A(2) will provide that if a party to the relevant proceedings under section 19 was prevented from adducing evidence (the excluded evidence) in the proceedings, and the review court considers that the party should have been permitted to adduce the excluded evidence, the court may receive the excluded evidence and further evidence, or submissions, that directly relate to the excluded evidence.

2.237 Subsection 21A(3) will provide that if a document before a review court contains a deficiency of relevance to the review or appeal, and the court considers the deficiency to be of a minor nature, the court must adjourn the proceedings for such period as is necessary to allow the deficiency to be remedied. This will ensure that parties have sufficient time to remedy minor deficiencies in documents which a review court will consider.

2.238 Subsection 21A(4) will provide that section 21A does not entitle the person to whom the proceedings relate to adduce, or the court to receive, evidence to contradict an allegation that the person has engaged in conduct constituting an extradition offence for which the surrender of the person is sought. This is intended to maintain the 'no evidence' standard in extradition proceedings as currently applies in proceedings under section 19. The application of the 'no evidence' standard means that an extradition request does not need to include actual evidence of the alleged offence (for example, sworn affidavits). The Extradition Act only requires that a requesting country provide the warrant for arrest, a statement setting out a description of the offence and the applicable penalty and a statement setting out the alleged conduct constituting the offence in an extradition request.

2.239 This standard of information required for extradition requests to Australia is in line with the United Nations Model Treaty on Extradition. It has allowed Australia to enter into extradition relations with many countries that would otherwise have been unable to conduct extradition with Australia, particularly civil code jurisdictions

2.240 Subsection 21A(5) will provide that in section 21A, review court means the court to which the application or appeal was made.

ITEM 103 - AT THE END OF PARAGRAPH 22(3)(A)

2.241 This item will add 'and' at the end of paragraph 22(3)(a) to correct a previous stylistic error.

ITEM 104 - PARAGRAPH 22(3)(B)

2.242 Paragraph 22(3)(b) currently requires the Attorney-General to be satisfied that a person will not be subjected to torture on surrender to an extradition country before making a surrender determination. The Explanatory Memorandum to the Extradition Act makes clear that this is intended to implement Australia's obligations under the UNCAT.

2.243 This item will repeal existing paragraph 22(3)(b) and substitute it with a new paragraph 22(3)(b). The wording in this new paragraph 22(3)(b) will align with Australia's non-refoulement obligations under Article 3 of the UNCAT. The revised wording will provide that the Attorney-General may only make a surrender determination if he or she does not have substantial grounds for believing that, if the person were surrendered to the extradition country, the person would be in danger of being subjected to torture. In determining whether there are substantial grounds for believing a person would be in danger of being subjected to torture, the Attorney-General will take into account relevant considerations, including any consistent patterns of gross, flagrant or mass violations of humans rights consistent with Article 3(2) of the UNCAT.

ITEM 105 - AT THE END OF PARAGRAPHS 22(3)(C) AND (D)

2.244 This item will add 'and' at the end of paragraphs 22(3)(c) and 22(3)(d) to correct a previous stylistic error.

ITEM 106 - AT THE END OF PARAGRAPH 22(4)(A)

2.245 This item will add 'or' at the end of paragraph 22(4)(a) to correct a previous stylistic error.

ITEM 107 - AT THE END OF SUBPARAGRAPHS 22(4)(D)(I) AND (II)

2.246 This item will add 'or' at the end of subparagraphs 22(4)(d)(i) and 22(4)(d)(ii) to correct a previous stylistic error.

ITEM 108 - AT THE END OF SECTION 22

2.247 Subsection 22(2) provides that the Attorney-General shall, as soon as reasonably practicable after a person becomes eligible for surrender, determine whether the person is to be surrendered. Subsection 22(5) provides that where the Attorney-General determines that the eligible person is not be surrendered to the extradition country, the Attorney-General shall order, in writing, the release of that person. This item will add new subsections 22(6) and 22(7) at the end of section 22. Subsection 22(6) will provide that if a determination under subsection 22(2) is made in writing, the determination is not a legislative instrument. Subsection 22(7) will provide that an order made under subsection 22(5) is not a legislative instrument. These new provisions are intended to clarify any existing uncertainty about whether determinations given under subsections 22(2) or 22(5) are legislative instruments within the meaning of section 5 of the Legislative Instruments Act 2003 .

ITEM 109 - AT THE END OF PARAGRAPHS 24(1)(A) AND (B)

2.248 This item will add 'and' at the end of paragraphs 24(1)(a) and 24(1)(b) to correct a previous stylistic error.

ITEM 110 - AT THE END OF SUBPARAGRAPH 24(3)(B)(I)

2.249 This item will add 'or' at the end of paragraph 24(3)(b)(i) to correct a previous stylistic error.

ITEM 111 - AT THE END OF SECTION 24

2.250 This item will add new subsection 24(6) at the end of existing section 24. New subsection 24(6) will provide that if the Attorney-General informs an extradition country, in writing, in accordance with subsection 24(4) that an undertaking referred to in subparagraph 24(1)(d)(ii) is no longer required to be complied with, the written instrument is not a legislative instrument. This provision is intended to clarify any existing uncertainty about whether the written instrument under subsection 24(4) is a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 .

ITEM 112 - AT THE END OF SUBPARAGRAPH 25(2)(A)(I)

2.251 This item will add 'or' at the end of subparagraph 25(2)(a)(i) to correct a previous stylistic error.

ITEM 113 - PARAGRAPH 26(1)(C)

2.252 Existing paragraph 26(1)(c) provides that a surrender warrant or temporary surrender warrant (for extradition from Australia to an extradition country) must require that a person held in custody be released into the custody of 'a police officer' for the purpose of surrendering the person to the foreign country. Paragraph 26(1)(d) provides that a surrender warrant or temporary surrender warrant must authorise 'the police officer' to transport the person in custody for the purposes of enabling the person to be placed into the custody of the foreign escort officer and transported out of Australia.

2.253 This item will remove the reference to 'a police officer' in paragraph 26(1)(c) and replace it with 'any police officer'. This is because it is not always practicable for the same police officer to transport a person in custody through to the point of surrender to the foreign escort. This amendment, together with the amendment in item 114, will ensure that the police officer who takes custody of the person when released from prison is able to transfer the person into the custody of another police officer if necessary for the purposes of executing a surrender warrant.

ITEM 114 - PARAGRAPH 26(1)(D)

2.254 Paragraph 26(1)(d) provides that a surrender warrant or temporary surrender warrant must authorise 'the police officer' (who took custody of the person when released from prison) to transport the person in custody for the purpose of enabling the person to be placed in the custody of the foreign escort and transported out of Australia. However, it is not always practicable for the same police officer to transport a person in custody through to the point of surrender to the foreign escort.

2.255 This item will remove the reference to 'the police officer to transport the eligible person in custody, and, if necessary or convenient, to detain the eligible person in custody' and replace it with 'the eligible person to be transported in custody, and if necessary or convenient, detained in custody, by any police officer'. This amendment, together with the amendment in item 113, will ensure that the police officer who takes custody of the person when released from prison is able to transfer the person into the custody of another police officer if necessary for the purposes of executing a surrender warrant.

ITEM 115 - PARAGRAPH 26(1)(D)

2.256 Paragraph 26(1)(d) provides that a surrender warrant or temporary surrender warrant must authorise a police officer to transport the person in custody for the purposes of enabling the person to be placed in the custody of a specified person to transport the person out of Australia. This specified person is currently referred to as a 'foreign escort officer'.

2.257 This item will remove the reference to '(in this subsection called the foreign escort officer )' in paragraph 26(1)(d) and replace it with 'or a person included in a specified class (in this subsection called the escort officer)'. The phrase 'foreign escort officer' suggests the person will always be an officer of the foreign country. However, in some cases, Australian authorities may escort the person to the foreign country. In some situations the police officer may also be the escort officer for the purpose of the warrant. This amendment will recognise that Australian officers may escort the person to the requesting country.

ITEM 116 - PARAGRAPH 26(1)(E)

2.258 Paragraph 26(1)(e) provides that a surrender warrant or temporary surrender warrant shall authorise the foreign escort officer to transport the person in custody out of Australia to a place in the extradition country for the purpose of surrendering the person. This item will remove the reference to 'foreign' in paragraph 26(1)(e). The existing phrase 'foreign escort officer' in this paragraph suggests the person will always be an officer of the foreign country. However, in some cases, Australian authorities may escort the person to the foreign country. In some situations the police officer may also be the escort officer for the purpose of the warrant.

ITEM 117 - AFTER SUBSECTION 26(1)

2.259 This item inserts new subsection 26(1A) after existing subsection 26(1). While subsection 26(1) sets out what the warrant authorises, it does not specify when it ceases to be in force. New subsection 26(1A) will provide that a surrender warrant or a temporary surrender warrant remains in force until the eligible person is surrendered, at a place in the extradition country, to a person appointed by the extradition country to receive the eligible person.

ITEM 118 - SECTION 27

2.260 This item will insert '(1)' before the reference to 'where' in section 27. This is a consequence of new subsection 27(2), which will be inserted by item 119.

ITEM 119 - AT THE END OF SECTION 27

2.261 Subsection 27(1) provides that where property or a thing is seized upon arrest or in the execution of a search and seizure warrant, the Attorney-General may direct, by notice in writing, that the property or thing be sent to the extradition country. This item will insert a new subsection 27(2) at the end of existing section 27. New subsection 27(2) will provide that a notice given under subsection 27(1) is not a legislative instrument. This provision is intended to clarify any existing uncertainty about whether a notice given under subsection 27(1) is a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 .

ITEM 120 - AT THE END OF SECTION 30

2.262 Subsection 30(5) provides that a police officer may retain any property or thing seized upon arrest under an indorsed New Zealand warrant or a provisional arrest warrant pending any direction from the Attorney-General as to the manner in which the thing is to be dealt with. This item will insert a new subsection 30(8) at the end of existing section 30. New subsection 30(8) will provide that if a direction under subsection 30(5) is given in writing, the direction is not a legislative instrument. This provision is intended to clarify any existing uncertainty about whether a direction given under subsection 30(5) is a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 .

ITEM 121 - AFTER SUBSECTION 31(5)

2.263 This item will insert a new subsection 31(5A) after existing subsection 31(5). New subsection 31(5A) provides that if a direction under subsection 31(5) is given in writing, the direction is not a legislative instrument. This provision is intended to clarify any existing uncertainty about whether a direction given under subsection 31(5A) is a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 .

ITEM 122 - SUBSECTION 32(2)

2.264 This item will remove the reference to '34' in subsection 32(2) and replace it with '33A or 34, or both'. This will recognise that proceedings may take place under section 33A if a person consents to surrender.

ITEM 123 - PARAGRAPH 33A(1)(B)

2.265 This item will remove the reference to 'and' in paragraph 33A(1)(b) as a consequence of the repeal of ensuing paragraph 33A(1)(c), which will be done by item 124.

ITEM 124 - PARAGRAPH 33A(1)(C)

2.266 This item will repeal paragraph 33A(1)(c). Existing paragraph 33A(1)(c) allows a person to consent to be surrendered to New Zealand where a request has been made to a magistrate for proceedings to be conducted under section 34, determining whether the person should be surrendered. This will enable a person to consent to extradition to New Zealand earlier in the process, and not have to wait until surrender proceedings have been requested to be conducted. However, while enabling a person to consent at any earlier stage, this amendment will not remove any safeguards that currently apply where a person consents to being surrendered to New Zealand.

ITEM 125 - PARAGRAPH 38(1)(A)

2.267 Paragraph 38(1)(a) provides that a surrender warrant or temporary surrender warrant (for extradition from Australia to New Zealand) must authorise 'a police officer' to take the person into custody, to transport the eligible person in custody and, if necessary or convenient, to detain the eligible person in custody for the purpose of enabling the person to be placed in the custody of a specified person (called the New Zealand escort officer) and transported out of Australia. However, it is not always practicable for the same police officer to transport a person in custody through to the point of surrender to the escort.

2.268 This item will remove the phrase 'a police officer to take the eligible person into custody, to transport the eligible person in custody and, if necessary or convenient, to detain the eligible person in custody' and replace it with 'the eligible person to be taken into custody, transported in custody and, if necessary or convenient, detained in custody, by any police officer'. This amendment, together with the amendment in item 126, will ensure that the police officer who takes custody of the person when released from prison is able to transfer the person into the custody of another police officer if necessary for the purposes of executing a surrender warrant.

ITEM 126 - PARAGRAPH 38(1)(A)

2.269 Paragraph 38(1)(a) provides that a surrender warrant or temporary surrender warrant shall authorise a police officer to take the eligible person into custody, and transfer the person into the custody of a specified person (in this subsection called the New Zealand escort officer).

2.270 This item will remove '(in this subsection called the New Zealand escort officer)' and replace it with 'or a person included in a specified class (in this subsection called the escort officer)'. The phrase 'New Zealand escort officer' suggests the person will always be an officer from New Zealand. However, in some cases, Australian authorities may escort the person to New Zealand. In some situations the police officer may also be the escort officer for the purpose of the warrant. This amendment will recognise that Australian officers may escort the person.

ITEM 127 - PARAGRAPH 38(1)(B)

2.271 Paragraph 38(1)(b) provides that a surrender warrant or temporary surrender warrant must authorise 'the New Zealand escort officer' to transport the person in custody out of Australia to a place in New Zealand for the purpose of surrendering the person to New Zealand.

2.272 This item will remove the first occurring reference to 'New Zealand' in paragraph 38(1)(b). The phrase 'New Zealand escort officer' in existing paragraph 38(1)(b) suggests the person will always be an officer from New Zealand. However, in some cases, Australian authorities may escort the person to New Zealand. In some situations the police officer may also be the escort officer for the purpose of the warrant. This amendment will recognise that Australian officers may escort the person.

ITEM 128 - AFTER SUBSECTION 38(1)

2.273 This item will insert new subsection 38(1A) after existing subsection 38(1). New subsection 38(1A) provides that, subject to section 38 and subsection 33(3) of the Acts Interpretation Act 1901 , a surrender warrant or a temporary surrender warrant remains in force until the eligible person is surrendered, at a place in New Zealand, to a person appointed by New Zealand to receive the eligible person. Subsection 33(3) of the Acts Interpretation Act 1901 provides that where an Act confers a power to make, grant or issue any instrument, the power shall, unless the contrary intention appears, be construed as including a power to repeal, rescind, revoke, amend, or vary any such instrument.

ITEM 129 - SECTION 39

2.274 This item inserts '(1)' before the reference to 'where' in section 39 as a consequence of new subsection 39(2), which will be inserted by item 130.

ITEM 130 - AT THE END OF SECTION 39

2.275 Subsection 39(1) provides that where property or a thing is seized upon arrest under an indorsed New Zealand warrant or a provisional arrest warrant or in the execution of a search and seizure warrant, the Attorney-General may direct, by notice in writing, that the property or thing be sent to New Zealand. This item inserts a new subsection 39(2) at the end of section 39. New subsection 39(2) will provide that a notice given under subsection 39(1) is not a legislative instrument. This provision is intended to clarify any existing uncertainty about whether a notice given under subsection 39(1) is a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 .

ITEM 131 - AT THE END OF SECTION 43

2.276 Subsection 43(1) provides that where the Attorney-General suspects that a person is an extraditable person in relation to Australia, the Attorney-General may, by notice in writing in the statutory form, authorise the taking of evidence for use in any proceedings for the surrender of the person to Australia. This item inserts a new subsection 43(4) at the end of section 43. New subsection 43(4) will provide that a notice given under subsection 43(1) is not a legislative instrument. This provision is intended to clarify any existing uncertainty about whether a notice given under section 43 is a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 .

ITEM 132 - AT THE END OF SECTION 44

2.277 Section 44 provides for the situation where a person is surrendered to Australia pursuant to an undertaking that Australia will return the person back to the country, following the trial of the person in Australia for particular offences. Under section 44, a person who has been temporarily surrendered to Australia must be kept in custody unless the country that surrendered the person requests the release of the person, in which case the Attorney-General must order the release of the person. This item inserts new subsections 44(3), 44(4) and 44(5) at the end of existing section 44. Subsection 44(3) will provide that if the undertaking mentioned in subsection 44(1) is given in writing, the undertaking is not a legislative instrument. Subsection 44(4) will provide that an order made under paragraph 44(1)(d) is not a legislative instrument. Subsection 44(5) will provide that if an order under subsection 44(2) is made in writing, the order is not a legislative instrument. These new provisions are intended to clarify any existing uncertainty about whether orders under subsections 44(1) and 44(2) are legislative instruments within the meaning of section 5 of the Legislative Instruments Act 2003 .

ITEM 133 - AT THE END OF SECTION 45

2.278 Subsection 45(3D) (which will be inserted by item 47) will require the Attorney-General's consent for a person to be prosecuted in Australia in respect of conduct constituting an extradition offence (or extradition offences) instead of being surrendered to an extradition country. This item inserts a new subsection 45(6) at the end of section 45. New subsection 45(6) will provide that a consent given under subsection 45(3D) is not a legislative instrument. This provision is intended to ensure there is no uncertainty about whether a consent given under subsection 45(3D) is a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 .

ITEM 134 - SECTION 47

2.279 This item removes the reference to 'A provisional arrest warrant, within the meaning of Part II or III' and replaces it with 'An extradition arrest warrant, a provisional arrest warrant'. This is a consequence of amendments which will change references to 'a provisional arrest warrant' in Part II to 'an extradition arrest warrant' (items 94, 96 and 98).

ITEM 135 - AT THE END OF SECTION 48

2.280 Section 48 allows Australia to facilitate the transport of a person through Australia for the purposes of the person's extradition from another country to a third country. This includes providing for the Attorney-General to authorise, in writing, a magistrate to issue a warrant to hold the transferee in custody under subparagraph 48(1)(b)(iv) or direct any person having custody of the transferee to release the transferee from custody under subparagraph 48(1)(b)(v). This item inserts new subsections 48(3) and 48(4) at the end of section 48. New subsection 48(3) provides that an authorisation given under subparagraph 48(1)(b)(iv) is not a legislative instrument. Subsection 48(4) provides that if a direction under subparagraph 48(1)(b)(v) is given in writing, the direction is not a legislative instrument. These provisions are intended to clarify any existing uncertainty about whether an authorisation given under subparagraph 48(1)(b)(iv) or a direction given in writing under subparagraph 48(1)(b)(v) are legislative instruments within the meaning of section 5 of the Legislative Instruments Act 2003 .

ITEM 136 - PARAGRAPH 55(D)

2.281 This item will remove the reference to 'prescribing penalties not exceeding a fine of $2,000' in paragraph 55(d) and replace it with 'penalties not exceeding a fine of 20 penalty units'. This item will remove the reference to 'prescribing' at the beginning of the paragraph as it is already referred to leading in to paragraph 55(d). This item will also ensure the regulations can prescribe penalties for offences against the regulations by reference to a maximum number of penalty units rather than a maximum monetary amount. This reflects modern drafting practice for penalties. A penalty unit is defined in section 4AA of the Crimes Act and is $110.

ITEM 137 - APPLICATION - SECTION 21A OF THE EXTRADITION ACT 1988 ETC.

2.282 This item will provide that section 21A of the Extradition Act, which will be inserted by item 102, will apply in relation to an application for review or appeal referred to in subsection 21A(1) that is made on or after the commencement of this item, whether or not the relevant proceedings under section 19 were instituted before or after that commencement.

ITEM 138 - APPLICATION OF AMENDMENTS MADE BY ITEMS 122, 123 AND 124

2.283 This item will provide that the amendments that will be made by items 122, 123, and 124 of this Schedule will apply in relation to persons in respect of whom an indorsed New Zealand warrant has been obtained on or after the commencement of this item.

ITEM 139 - APPLICATION OF AMENDMENT MADE BY ITEM 136

2.284 This item will provide that the amendment that will be made by item 136 of this Schedule will apply to a penalty imposed on or after the commencement of this item, whether or not the relevant proceedings were instituted before, on or after that commencement.