Statutory Rules 1985 No. 3501
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Extradition (Japan) Regulations
I, THE GOVERNOR-GENERAL of the Commonwealth of Australia, acting with the advice of the Federal Executive Council and being satisfied that, if the Extradition (Foreign States) Act 1966 applied in relation to Japan, the law of that state would, with or without any limitations, conditions, exceptions or qualifications, permit the surrender to Australia of persons accused or convicted of extraditable crimes within the meaning of Part IV of that Act who are found in that state, or within the jurisdiction of, or of a part of, that state, hereby make the following Regulations under the Extradition (Foreign States) Act 1966.
Dated 19 December 1985.
N. M. STEPHEN
Governor-General
By His Excellency’s Command,
LIONEL BOWEN
Attorney-General
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Citation
1. These Regulations may be cited as the Extradition (Japan) Regulations.
Interpretation
2. In these Regulations, “the Act” means the Extradition (Foreign States) Act 1966.
Application of the Act
3. The Act applies to Japan subject to the limitations, conditions, exceptions or qualifications specified in regulation 4.
Limitations, &c., in relation to the application of the Act
4. (1) A person is not liable to be surrendered to Japan in respect of an offence to which a requisition by that state for the surrender of the
person relates unless an act or omission by the person that is, in or in connection with the requisition, alleged to have taken place or of which evidence is produced in connection with the requisition, or any equivalent act or omission, would, if it took place, at the time when the requisition was made, in, or within the jurisdiction of, the part of Australia where the person is found, constitute an offence against the law in force in that part of Australia—
(a) that is not a service offence (within the meaning of the Defence Force Discipline Act 1982) other than an offence against sub-section 61 (1) of that Act; and
(b) the maximum penalty for which is, or includes, imprisonment for not less than 12 months.
(2) A person is not liable to be surrendered to Japan in respect of an offence to which a requisition by that state for the surrender of the person relates if—
(a) the offence is, or is by reason of the circumstances in which it is alleged to have been committed or was committed, an offence of a political character or the requisition has in fact been made with a view to try or punish the person for an offence of a political character;
(b) had the offence been alleged to have been committed by the person in Australia, the period within which proceedings in respect of the offence could, in accordance with the law of, or of a part of, Australia, have been commenced against the person would, at the time that the requisition was made, have expired;
(c) the offence is, under the law of, or of a part of, Australia, regarded as having been committed, either in whole or in part, in Australia or that part of Australia;
(d) proceedings in respect of the offence have, in accordance with the law of, or of a part of, Australia, been commenced against the person in Australia; or
(e) final judgment in respect of the offence has been entered against the person in Australia or in a foreign state other than Japan.
(3) The Attorney-General shall not give a notice under sub-section 15 (1) of the Act, or issue a warrant under sub-section 18 (2) or (2b) of the Act, in respect of a person for whose surrender a requisition has been made by Japan if—
(a) there are substantial grounds for believing that—
(i) the requisition, although purporting to have been made in respect of an offence for which, but for this paragraph, the person would be liable to be surrendered to Japan, was made for the purpose of prosecuting or punishing the person on account of his or her race, religion, nationality or political opinions; or
(ii) if the person is surrendered to that state, the person may be
prejudiced at his or her trial, or punished, detained or restricted in his or her personal liberty, by-reason of his or her race, religion, nationality or political opinions;
(b) the offence to which the requisition relates is, under the law of, or of a part of, Australia regarded as having been committed, either in whole or in part, in, or within the jurisdiction of, Australia or that part of Australia and the authorities of Australia or of that part of Australia having competency in that respect have decided to refrain from prosecuting the person for that offence; or
(c) the person, on being extradited to Japan, would be liable to be tried in that state by a court or tribunal—
(i) that has been specially established for the purpose of trying the person’s case; or
(ii) that is only occasionally, or under exceptional circumstances, authorised to try persons accused of the offence to which the requisition relates.
and, in a case where the offence to which the requisition relates is punishable in Japan by death, unless assurances satisfactory to Australia are given by Japan that the penalty of death will not be imposed on the person or, if that penalty is imposed, that it will not be carried out.
(4) The Attorney-General may decline to issue a warrant under subsection 18 (2) or (2b) of the Act for the surrender of a person to Japan if—
(a) the person is an Australian citizen; or
(b) the Attorney-General, while taking into account the nature of the offence and the interests of Japan, is nevertheless of the opinion that, in the circumstances of the case, it would be unjust, oppressive or incompatible with humanitarian considerations to surrender the person to that state.
NOTE
1. Notified in the Commonwealth of Australia Gazette on 20 December 1985.