Extradition Act 1988
Extradition (India) Regulations 2010
Section 55 of the Extradition Act 1988 (the Act) provides, in part, that the Governor-General may make regulations, not inconsistent with the Act, 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 defines an ‘extradition country’ to include a country that is declared by regulations to be an extradition country. Paragraph 11(1)(a) of the Act provides that regulations may apply the Act to a specified extradition country subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to a bilateral extradition treaty between Australia and that country, being a treaty a copy of which is set out in the regulations.
The Regulations give effect in Australian domestic law to the Extradition Treaty between Australia and the Republic of India (the Treaty), signed at Canberra on 23 June 2008. A copy of the Treaty is set out in Schedule 1 of the Regulations. The Regulations apply the Act to extradition requests received from the Republic of India (India) subject to the Treaty.
Australia’s extradition relationship with India was previously governed by the Commonwealth Scheme for the Rendition of Fugitive Offenders 1966 (the London Scheme), an arrangement of less than treaty status which applies between members of the Commonwealth. The London Scheme is non-binding at international law and does not impose legal obligations on participants. The Treaty provides for binding obligations at international law and strengthens and clarifies Australia’s existing extradition relationship with India.
As with all of Australia’s extradition treaties, the Treaty contains a range of internationally accepted human rights safeguards. Under the Treaty, a request for extradition must be refused if the person sought may be subject to the death penalty, unless an undertaking is given that the death penalty will not be imposed or, if imposed, will not be carried out. The Treaty also provides that a request for extradition must be refused where it relates to the prosecution of a person for a military offence, which is not also an offence under the general criminal law.
The Treaty modernises and provides for more effective extradition arrangements between Australia and India. Under the London Scheme, the Requesting Party must provide a full brief of evidence of the alleged extradition offence sufficient to establish a prima facie case. The Treaty streamlines this process by providing for a less than ‘prima facie’ evidence approach to extradition.
