Commonwealth Numbered Regulations - Explanatory Statements

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EXTRADITION (REPUBLIC OF ESTONIA) REGULATIONS 1999 1999 NO. 32

STATUTORY RULES 1999 No. 32

Issued by the Authority of the Minister for Justice and Customs

Extradition Act 1988

Extradition (Republic of Estonia) Regulations 1999

Section 55 of the Extradition Act 1988 ("the Act") provides that the Governor-General may make regulations prescribing all matters required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act. Section 5 of the Act provides:

(a)       that "extradition country" means, among other things, any country (other than New Zealand) that is declared by the regulations to be an extradition country; and

(b)       that regulations made for the purposes of paragraphs (c) and (d) of the definition of "political offence" may declare that an offence of a type described in either of those paragraphs is not a political offence in relation to a country.

The Regulations provide that the Republic of Estonia ("Estonia") is an extradition country. Making the Regulations has enabled establishment of a non-treaty extradition relationship between Australia and Estonia based on reciprocity. This relationship will operate in accordance with modem extradition principles, including the "no evidence" extradition procedure which avoids the requirement for presentation of evidence establishing a prima facie case against the person sought.

The relationship is subject to the various safeguards set out in the Act. For example, extradition will not be permitted where the fugitive is sought for or in connection with his or her race, religion, nationality or political opinions or would be tried, sentenced or detained for a political or military law offence. (The definition of "political offence" is limited to exclude certain terrorist acts, in recognition of the stable political system which has emerged in Estonia.) Extradition must be refused where the fugitive could be liable to the death penalty, unless an undertaking is given by the requesting state that the death penalty will not be imposed or, if imposed, will not be carried out. In addition, the Attorney-General retains a broad discretion to refuse surrender of a person to Estonia.

Similar "non-treaty regulations" based on reciprocity provide that the Act applies to Denmark, Fiji, Iceland, Japan, the Marshall Islands, South Africa and Thailand.

The Act did not previously apply to Estonia. The Convention for the Extradition of Criminals between the United Kingdom and the Republic of Estonia, done at London on 18 November 1925, was made applicable to Australia with effect from 23 February 1927 and is still listed in the Australian Treaty Series. It was given effect by the Estonia (Extradition) Order in Council, 1926 (Imp.) (1926 No. 840). However, the Convention and the Order ceased to have any practical effect upon the annexation of Estonia by the Soviet Union on 6 August 1940. Accordingly, Estonia was not listed in the Schedule to the Extradition (Foreign States) Act 1966 as a country to which that Act applied by virtue of section 9 of that Act and hence did not become an extradition country by virtue of paragraph (c) of the definition of "extradition country" in section .5 of the present Act.

Details of the Regulations are as follows:

Regulation 1 names the Regulations.

Regulation 2 provides that the Regulations commence on gazettal.

Regulation 3 defines terms used in the Regulations.

Regulation 4 declares Estonia to be an extradition country.

Regulation 5 modifies the definition of "political offence" for Estonia by excluding certain terrorist acts, as provided for by paragraphs (c) and (d) of the definition of "political offence" in section 5 of the Act. The acts in question are attacks on the life, person, or liberty of the head of state or head of government of Estonia or a member of the family of such a person and taking or endangering the life of a person in circumstances creating collective danger (for example, detonating a bomb in a public place). The Act provides that extradition for an offence must be refused if it is a political offence for the requesting country (paragraphs 7 (a) and 22 (3) (a) of the Act).