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Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill 2011

Schedule 2 Amendments relating to extradition

Part 1 Statutory appeal of extradition decisions

Division 1—Amendments

Extradition Act 1988

1  Subsection 21(1)

Omit “, or to the Supreme Court of the State or Territory,”.

2  Subsection 21(2)

Before “Court”, insert “Federal”.

3  Subsections 21(3) and (4)

Omit “or the Supreme Court”.

4  At the end of paragraph 21(6)(a)

Add “or”.

5  Paragraph 26(5)(c)

Omit “or the Supreme Court of the State or Territory in which the person is in custody”.

6  Subsections 26(5) and (6)

Omit “the Court” (wherever occurring), substitute “the Federal Court”.

7  Subsection 35(1)

Omit “, or to the Supreme Court of the State or Territory,”.

8  Subsection 35(2)

Before “Court”, insert “Federal”.

9  Subsections 35(3) and (4)

Omit “or the Supreme Court”.

10  Paragraph 38(7)(c)

Omit “or the Supreme Court of the State or Territory in which the person is in custody”.

11  Subsections 38(7) and (8)

Omit “the Court” (wherever occurring), substitute “the Federal Court”.

12  Subsection 51(1)

Repeal the subsection.

Note:       The heading to section 51 is replaced by the heading “ Application of section 38 of the Judiciary Act 1903 ”.

13  Subsection 51(2)

Omit “(2)”.

Division 2—Application and transitional provisions

14  Application of amendments made by items 1, 3 and 12

(1)       The amendments made by items 1, 3 and 12 of this Schedule apply in relation to an order made after the commencement of this item under subsection 19(9) or (10) of the Extradition Act 1988 .

(2)       Section 21 and subsection 51(1) of the Extradition Act 1988 , as in force immediately before the commencement of this item, continue to apply in relation to an order made before that commencement under subsection 19(9) or (10) of that Act as if those amendments had not happened.

15  Application of amendment made by item 5

(1)       The amendment made by item 5 of this Schedule applies in relation to a surrender warrant or a temporary surrender warrant issued after the commencement of this item under Part II of the Extradition Act 1988 .

(2)       Section 26 of the Extradition Act 1988 , as in force immediately before the commencement of this item, continues to apply in relation to a surrender warrant or a temporary surrender warrant issued before that commencement under Part II of that Act as if that amendment had not happened.

16  Application of amendments made by items 7, 9 and 12

(1)       The amendments made by items 7, 9 and 12 of this Schedule apply in relation to an order made after the commencement of this item under section 34 of the Extradition Act 1988 .

(2)       Section 35 and subsection 51(1) of the Extradition Act 1988 , as in force immediately before the commencement of this item, continue to apply in relation to an order made before that commencement under section 34 of that Act as if those amendments had not happened.

17  Application of amendment made by item 10

(1)       The amendment made by item 10 of this Schedule applies in relation to a surrender warrant or a temporary surrender warrant issued after the commencement of this item under Part III of the Extradition Act 1988 .

(2)       Section 38 of the Extradition Act 1988 , as in force immediately before the commencement of this item, continues to apply in relation to a surrender warrant or a temporary surrender warrant issued after that commencement under Part III of that Act as if that amendment had not happened.



 

Part 2 Waiver of extradition

Extradition Act 1988

18  Section 5 (definition of surrender offence )

Before “22(2)”, insert “15B(2) or”.

19  Section 5 (paragraph (b) of the definition of surrender offence )

Before “any”, insert “in the case of a determination under subsection 22(2)—”.

20  Section 5 (at the end of subparagraph (b)(i) of the definition of surrender warrant )

Add “or”.

21  Subsection 15(2)

Omit “section 18 or 19, or both,”, substitute “one or more of sections 15A, 18 and 19”.

22  Subsection 15(4)

Omit “section 18”, substitute “section 15A, 18”.

23  Subsection 15(5)

Omit “section 18 or 19, or both,”, substitute “one or more of sections 15A, 18 and 19”.

24  After section 15

Insert:

15A   Waiver of extradition

Application of section—before decision has been made as to whether or not to give section 16 notice

             (1)  This section applies to a person who is on remand under section 15 at a particular time (the waiver time ) if, as at the waiver time, the Attorney-General has not yet made a decision as to whether or not to give a notice in relation to the person under subsection 16(1) in relation to one or more extradition offences.

Application of section—after section 16 notice given

             (2)  This section also applies to a person who is on remand under section 15 at a particular time (the waiver time ) if:

                     (a)  before the waiver time, the Attorney-General gave a notice in relation to the person under subsection 16(1) in relation to one or more extradition offences; and

                     (b)  as at the waiver time, a magistrate has not done either of the following:

                              (i)  advised the Attorney-General under subparagraph 18(2)(b)(ii) that the person has consented to be surrendered in relation to the extradition offence or all of the extradition offences;

                             (ii)  determined under subsection 19(1) that the person is eligible for surrender in relation to any of the extradition offences.

Person may inform a magistrate that he or she wishes to waive extradition

             (3)  The person may inform a magistrate that he or she wishes to waive extradition in relation to:

                     (a)  if an extradition request has not been made for the surrender of the person—the extradition offence or all of the extradition offences specified in the extradition arrest warrant to which the remand relates; or

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

Magistrate must make order etc. if satisfied of matters

             (4)  If a magistrate is satisfied of the matters in subsections (5)(a), (c) and (d) in relation to the person, and has informed the person as mentioned in paragraph (5)(b), the magistrate must:

                     (a)  by warrant in the statutory form, order that the person be committed to prison pending a determination by the Attorney-General under subsection 15B(2) that the person be surrendered, or not be surrendered, in relation to the extradition offence or extradition offences mentioned in paragraph (3)(a) or (b), as the case may be; and

                     (b)  advise the Attorney-General in writing that the person wishes to waive extradition for those offences.

             (5)  Before making an order under paragraph (4)(a) in relation to a person, the magistrate:

                     (a)  must be satisfied that the person voluntarily informed a magistrate under subsection (3); and

                     (b)  must inform the person:

                              (i)  that, once the order is made, the person cannot apply for the order to be revoked; and

                             (ii)  of the consequences of the fact that the extradition country concerned may not have given, and if the order is made will not be required to give, a speciality assurance (of a kind mentioned in subsection 22(4)) in relation to the person; and

                            (iii)  that certain requirements in this Act that would otherwise apply in respect of the person will not apply if the order is made (including, but not limited to, requirements relating to extradition objections); and

                            (iv)  that, after the order is made, the person will be surrendered to the extradition country concerned if the Attorney-General determines under subsection 15B(2) that the person is to be so surrendered; and

                     (c) having informed the person as mentioned in paragraph (b)—must be satisfied that the person has confirmed that he or she wishes to waive extradition as mentioned in subsection (3); and

                     (d)  must be satisfied that the person is legally represented, or was given an adequate opportunity to be legally represented, in the proceedings before the magistrate.

Rules that apply until magistrate decides not to make an order

             (6)  After a person informs a magistrate under subsection (3) that the person wishes to waive extradition in relation to an extradition offence or extradition offences, the following rules apply unless and until a magistrate decides not to make an order under paragraph (4)(a) in relation to the person:

                     (a)  if a decision as to whether or not to give a notice under subsection 16(1) had not, as at the waiver time, been made in relation to the person in relation to the extradition offence or extradition offences—the Attorney-General must not decide whether or not to give such a notice;

                     (b)  if, before the waiver time, a notice under subsection 16(1) had been given in relation to the person in relation to the extradition offence or extradition offences:

                              (i)  sections 18 and 19 do not apply to the person in relation to the extradition offence or extradition offences; and

                             (ii)  any proceedings that were on foot as at the waiver time under section 18 or 19 in relation to the person in relation to the extradition offence or extradition offences are stayed.

Magistrate must advise Attorney-General if not satisfied of matters

             (7)  If a magistrate is not satisfied of the matters in paragraphs (5)(a), (c) and (d) in relation to the person, the magistrate must advise the Attorney-General in writing that the magistrate has decided not to make an order under paragraph (4)(a) in relation to the person.

15B   Attorney-General must make surrender determination

             (1)  This section applies if a magistrate has advised the Attorney-General under paragraph 15A(4)(b) that a person wishes to waive extradition in relation to one or more extradition offences.

             (2)  The Attorney-General must, as soon as is reasonably practicable, having regard to all the circumstances, determine whether or not the person is to be surrendered to the extradition country concerned in relation to the extradition offences.

             (3)  The Attorney-General may only determine that the person be surrendered to the extradition country concerned if:

                     (a)  the Attorney-General 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; and

                     (b)  the Attorney-General is satisfied that, on surrender to the extradition country, there is no real risk that the death penalty will be carried out upon the person in relation to any offence.

             (4)  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.

25  At the end of section 17

Add:

             (4)  Subsection (2) does not apply to a person at any time after the person has informed a magistrate under subsection 15A(3) that the person wishes to waive extradition, unless and until a magistrate decides not to make an order under paragraph 15A(4)(a) in relation to the person.

             (5)  If:

                     (a)  a person informs a magistrate under subsection 15A(3) that the person wishes to waive extradition; and

                     (b)  a magistrate decides not to make an order under paragraph 15A(4)(a) in relation to the person;

then, for the purposes of applying subsection (2) of this section to the person, the period of days referred to in paragraph (2)(a) of this section is to be calculated exclusive of the period:

                     (c)  beginning on the day on which the person informs the magistrate that the person wishes to waive extradition; and

                     (d)  ending on the day on which the Attorney-General receives the magistrate’s advice under subsection 15A(7) that the magistrate has decided not to make an order under paragraph 15A(4)(a) in relation to the person.

26  Section 23

After “subsection”, insert “15B(2) or”.

27  Paragraph 24(1)(a)

After “subsection”, insert “15B(2) or”.

28  Subsection 25(2)

Omit “The”, substitute “If the temporary surrender warrant referred to in paragraph (1)(a) was issued after the Attorney-General determined under subsection 22(2) that the person was to be surrendered, the”.

29  After paragraph 25(2)(a)

Insert:

                   (ba)  the Attorney-General 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; and

30  At the end of section 25

Add:

             (3)  If the temporary surrender warrant referred to in paragraph (1)(a) was issued after the Attorney-General determined under subsection 15B(2) that the person was to be surrendered, the Attorney-General may only issue a surrender warrant under subsection (1) if:

                     (a)  the Attorney-General 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; and

                     (b)  the Attorney-General is satisfied that, on surrender to the extradition country, there is no real risk that the death penalty will be carried out upon the person in relation to any offence.

31  Paragraph 45(4)(b)

After “section”, insert “15B or”.

32  Application of amendments made by this Part

The amendments made by this Part apply to a person who is remanded under section 15 of the Extradition Act 1988 on or after the commencement of this item.



 

Part 3 Other amendments

Division 1—Amendments relating to political offences

Extradition Act 1988

33  Section 5 (paragraphs (a) to (d) of the definition of political offence )

Repeal the paragraphs, substitute:

                     (a)  an offence that involves an act of violence against a person’s life or liberty; or

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

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

34  At the end of paragraphs 7(a), (b) and (c)

Add “or”.

Migration Act 1958

35  Subsection 91T(3)

Omit “paragraph (a), (b), (c) or (d)”, substitute “paragraph (a), (b) or (c)”.

36  Application of amendments made by this Division

The amendments made by this Division apply in respect of requests made by a foreign country on or after the commencement of this item.

Division 2—Extradition objection on the grounds of sex and sexual orientation

Extradition Act 1988

37  Paragraphs 7(b) and (c)

After “race,”, insert “sex, sexual orientation,”.

38  Application of amendment made by item 37

The amendment made by item 37 of this Schedule applies in relation to an extradition request from an extradition country that is made on or after the commencement of this item.

Division 3—Notice of receipt of extradition request

Extradition Act 1988

39  Subsection 10(3)

Omit “, subparagraph 16(2)(a)(ii) or paragraph”, substitute “or”.

40  Subparagraph 12(3)(c)(i)

Omit “issue”, substitute “give”.

41  Subsection 16(2)

Repeal the subsection, substitute:

Person must be extraditable person in relation to extradition country

             (2)  The Attorney-General must not give the notice unless the Attorney-General is of the opinion that the person is an extraditable person in relation to the extradition country.

42  Subsection 16(3)

Omit “issued”, substitute “given”.

43  Application of amendments made by this Division

The amendments made by this Division apply in relation to an extradition request from an extradition country that is made on or after the commencement of this item.

Division 4—Consent to accessory extradition

Extradition Act 1988

44  After section 19

Insert:

19A   Consent to accessory extradition—extradition offences not specified in subsection 16(1) notice etc.

Scope

             (1)  This section applies if:

                     (a)  a notice under subsection 16(1) has been given in relation to a person in respect of whom an extradition request has been made by an extradition country; and

                     (b)  either:

                              (i)  in proceedings under section 18, the person consents in accordance with that section to being surrendered to the extradition country in relation to the extradition offence or all of the extradition offences to which the notice relates; or

                             (ii)  in proceedings under subsection 19(1), a magistrate determines that 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

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

Consent to being surrendered in respect of the additional extradition offences

             (2)  If the magistrate is satisfied that there is no extradition objection in relation to any of the additional extradition offences, the magistrate must, in those proceedings, ask the person whether he or she consents to being surrendered to the extradition country in respect of the additional extradition offences.

             (3)  Before asking the person whether he or she consents to being surrendered in respect of the additional extradition offences, the magistrate must:

                     (a)  either:

                              (i)  be satisfied that the person is legally represented; or

                             (ii)  if the magistrate is not so satisfied—give the person an adequate opportunity to be legally represented; and

                     (b)  inform the person that, if the person is surrendered, the person may be tried and sentenced in the extradition country for any additional extradition offence in relation to which the person gives consent; and

                     (c)  inform the person that the person 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 concerned was received, that conduct may not have constituted an extraditionoffence in relation to Australia.

Magistrate to advise Attorney-General of consent

             (4)  If the person gives his or her consent to being so surrendered, the magistrate must, unless he or she considers that the consent was not given voluntarily, advise the Attorney-General in writing of the additional extradition offences in respect of which the person has so consented.

Note:       The heading to section 20 is altered by adding at the end “ —offences that are not extradition offences ”.

45  Subsection 22(1) (definition of qualifying extradition offence )

Repeal the definition, substitute:

qualifying extradition offence , in relation to an eligible person, means the following:

                     (a)  if paragraph (a) of the definition of eligible person applies—any extradition offence in relation to which the person consented in accordance with section 18;

                     (b)  if paragraph (b) of the definition of eligible person applies—any extradition offence in relation to which:

                              (i)  the magistrate referred to in that paragraph; or

                             (ii)  the court that conducted the final proceedings under section 21;

                            determined that the person was eligible for surrender within the meaning of subsection 19(2);

                     (c)  in any case—any extradition offence in relation to which the person has consented in accordance with section 19A.

Division 5—Extradition to Australia from other countries

Extradition Act 1988

46  At the end of Part IV

Add:

44A   Persons permanently surrendered to Australia

             (1)  This section applies if:

                     (a)  a person is surrendered by a country to Australia; and

                     (b)  before the person is surrendered to Australia, the Attorney-General of Australia gives an undertaking to the country:

                              (i)  that life imprisonment will not be imposed on the person; or

                             (ii)  specifying the maximum period of imprisonment that may be imposed on the person;

                            in the event that the person is found to have committed a particular offence or offences punishable by Australian law.

             (2)  The person must not, under a law of the Commonwealth, a State or Territory, be sentenced to:

                     (a)  if subparagraph (1)(b)(i) applies—life imprisonment; or

                     (b)  if subparagraph (1)(b)(ii) applies—a period of imprisonment that is more than the period specified in the Attorney-General’s undertaking.

             (3)  For an offence that is to be prosecuted in a State or Territory, the Attorney-General of Australia must, before giving an undertaking, consult with the Attorney-General of the State or Territory.

             (4)  If the undertaking mentioned in subsection (1) is given in writing, the undertaking is not a legislative instrument.

             (5)  To avoid doubt, the undertaking mentioned in subsection (1) must not specify a period that is longer than:

                     (a)  in the event that the person is found to have committed a particular offence—the maximum period of imprisonment that applies to the offence; or

                     (b)  in the event that the person is found to have committed particular offences—the total of each maximum period of imprisonment that applies to each offence.

Division 6—Prosecution instead of extradition

Extradition Act 1988

47  Subsections 45(1), (2) and (3)

Repeal the subsections, substitute:

Offence

             (1)  A person commits an offence if:

                     (a)  a magistrate in a State or Territory remands the person under section 15; and

                     (b)  the person engaged in conduct outside Australia at an earlier time; and

                     (c)  the conduct, or equivalent conduct, would have constituted an offence (the notional Australian offence ) against a law of the Commonwealth, or the State or Territory, if the conduct or equivalent conduct had occurred in the State or Territory at the earlier time.

Note:          This subsection creates an offence distinct from the notional Australian offence.

Absolute liability

             (2)  Absolute liability applies to paragraphs (1)(a) and (b), and to the circumstance in paragraph (1)(c) that the conduct, or equivalent conduct, referred to in that paragraph would have constituted the notional Australian offence if the conduct or equivalent conduct had occurred in the State or Territory at the earlier time.

Note:          Paragraph (3)(a) provides for physical and fault elements etc. to apply in determining whether conduct would have constituted the notional Australian offence.

Determining whether conduct would have constituted notional Australian offence

             (3)  In determining whether the conduct, or equivalent conduct, referred to in paragraph (1)(c) would have constituted the notional Australian offence:

                     (a)  the physical elements and fault elements (however described), if any, that apply in relation to the notional Australian offence have effect; and

                     (b)  any defences or special liability provisions (however described) that apply in relation to the notional Australian offence have effect; and

                     (c)  any procedures or limitations (however described) that apply in relation to the prosecution of the notional Australian offence have effect; and

                     (d)  if the conduct outside Australia consisted of 2 or more acts or omissions, regard may be had to all, some or only one of those acts or omissions.

          (3A)  Subsection (3) does not limit the Judiciary Act 1903 .

Note:          Division 1 of Part X, and subsection 79(1), of the Judiciary Act 1903 apply various State or Territory laws in relation to persons charged with offences against Commonwealth laws.

Penalty for offence

          (3B)  The maximum penalty for an offence against subsection (1) is the maximum penalty that applied to the notional Australian offence at the time the conduct referred to in paragraph (1)(b) was engaged in.

Offence is indictable

          (3C)  An offence against subsection (1) is an indictable offence.

Attorney-General’s consent to prosecution of offence

          (3D)  Proceedings for an offence against subsection (1) must not be commenced without the Attorney-General’s written consent.

Note:       The heading to section 45 is replaced by the heading “ Prosecution of persons instead of extradition ”.

48  Application of item 47

The amendment made by item 47 applies to conduct engaged in outside Australia on or after the commencement of this item.

49  Subsection 45(4)

Omit “subsection (3)”, substitute “subsection (3D)”.

50  Paragraph 45(4)(a)

Omit “paragraph (1)(a);”, substitute “paragraph (1)(b); and”.

51  Paragraph 45(4)(b)

Omit “country; and”, substitute “country.”.

52  Paragraph 45(4)(c)

Repeal the paragraph.

53  Application of the amendment made by item 52

The amendment made by item 52 of this Schedule applies in respect of an extradition request made by an extradition country if the request is made on or after the commencement of this item.

54  Subsection 45(5)

Omit “subsection (3)”, substitute “subsection (3D)”.

Note:       The following heading to subsection 45(5) is inserted “ Arresting, charging and remanding person before consent ”.

Division 7—Technical amendments relating to notices

Extradition Act 1988

55  After section 16

Insert:

16A   Attorney-General may give an amended notice

Scope

             (1)  This section applies if the Attorney-General has given a notice (the original notice ) under subsection 16(1) in relation to a person.

Attorney-General may give an amended notice

             (2)  Subject to subsection (4), the Attorney-General may, in his or her discretion, give an amended notice at any time before:

                     (a)  the person has consented in accordance with section 18 to being surrendered to the extradition country concerned in relation to the extradition offence or extradition offences specified in the original notice; or

                     (b)  a magistrate has determined in accordance with section 19 that the person is eligible for surrender in relation to the extradition offence or extradition offences specified in the original notice.

             (3)  The amended notice must be in writing in the statutory form expressed to be directed to any magistrate.

             (4)  The Attorney-General must not give an amended notice under subsection (2) that specifies one or more extradition offences that were not specified in the original notice unless the Attorney-General is satisfied that he or she could give a notice under subsection 16(1) in the same form as the amended notice.

             (5)  For the purposes of this Act, a reference to a notice given under subsection 16(1) includes a reference to an amended notice given under subsection (2) of this section.

             (6)  An amended notice given under subsection (2) is not a legislative instrument.

Copies of amended notice and documents to be given to the person

             (7)  As soon as practicable after the person is remanded under section 15, or an amended notice is given under subsection (2) of this section, whichever is the later:

                     (a)  a copy of the amended notice; and

                     (b)  if the amended notice specifies one or more extradition offences that were not specified in the original notice—the copies of the documents referred to in:

                              (i)  paragraph 19(2)(a); and

                             (ii)  if applicable—paragraph 19(2)(b);

                            to the extent that those documents relate to those extradition offences;

must be given to the person.

Revocation in accordance with the Acts Interpretation Act 1901

             (8)  This section 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 .

56  Paragraph 17(1)(a)

Omit “issue”, substitute “give”.

57  After subsection 18(1)

Insert:

          (1A)  If:

                     (a)  the Attorney-General has given a notice (the original notice ) under subsection 16(1) in relation to a person; and

                     (b)  during proceedings conducted in relation to the person under this section, the Attorney-General gives an amended notice under subsection 16A(2) in relation to the person; and

                     (c)  the amended notice specifies one or more extradition offences that were not specified in the original notice; and

                     (d)  the magistrate considers it necessary to give the person time to inform the magistrate whether the person consents to being surrendered to the extradition country in relation to any of those extradition offences;

the magistrate may adjourn the proceedings for such period as the magistrate considers reasonable to allow the person to so inform the magistrate.

58  After subsection 19(4)

Insert:

          (4A)  If:

                     (a)  the Attorney-General has given a notice (the original notice ) under subsection 16(1) in relation to a person; and

                     (b)  during proceedings conducted in relation to the person under this section, the Attorney-General gives an amended notice under subsection 16A(2) in relation to the person; and

                     (c)  the amended notice specifies one or more extradition offences that were not specified in the original notice; and

                     (d)  the magistrate considers it necessary to give the person and the extradition country time to prepare for the conduct of proceedings under this section in relation to any of those extradition offences;

the magistrate may adjourn the proceedings for such period as the magistrate considers reasonable to allow the person and the extradition country to prepare for the conduct of those proceedings.

59  Subsection 43(1)

After “statutory form”, insert “expressed to be directed to any magistrate”.

60  After section 46

Insert:

46A   Giving notices to magistrates etc.

Scope

             (1)  This section applies if:

                     (a)  the Attorney-General decides to give a notice under subsection 16(1), 16A(2) or 43(1) directed to a magistrate; or

                     (b)  the Attorney-General is required to give a notice under subsection 12(3), 15B(4) or 17(1) directing a magistrate.

Giving the notice to a magistrate

             (2)  The notice, or a copy of the notice, may be handed to a magistrate or sent to a magistrate by post, fax, email or other electronic means.

When the notice is taken to be given

             (3)  The notice is taken, for the purposes of this Act, to be given:

                     (a)  if the notice, or a copy of the notice, is handed to a magistrate—when the notice or copy is handed to the magistrate; or

                     (b)  if the notice, or a copy of the notice, is sent to a magistrate by post—at the time at which the notice or copy would be delivered in the ordinary course of post; or

                     (c)  if the notice, or a copy of the notice, is sent to a magistrate by fax, email or other electronic means—at the time when the notice or copy is sent to the magistrate.

61  Application—section 16A of the Extradition Act 1988

Section 16A of the Extradition Act 1988 , as inserted by this Schedule, applies in relation to a notice given under subsection 16(1) of that Act after the commencement of this item.

62  Application—section 46A of the Extradition Act 1988

(1)       Section 46A of the Extradition Act 1988 , as inserted by this Schedule, applies to a notice under subsection 16(1), 16A(2) or 43(1) of that Act if the Attorney-General decides to give the notice on or after the commencement of this item.

(2)       Section 46A of the Extradition Act 1988 , as inserted by this Schedule, applies to a notice under subsection 12(3) or 17(1) of that Act if the Attorney-General is required to give the notice on or after the commencement of this item.

Division 8—Amendments relating to remand and bail

Extradition Act 1988

63  Paragraph 17(2)(b)

Repeal the paragraph, substitute:

                     (b)  either:

                              (i)  the Attorney-General has not received an extradition request from the extradition country concerned in relation to the person; or

                             (ii)  the Attorney-General has received such a request but a notice has not been given under subsection 16(1) in relation to the person within the period of 5 days after the end of the period of days referred to in paragraph (a);

64  Subsection 17(2)

Omit all the words after “the person” (third occurring), substitute “must be brought before a magistrate”.

65  After subsection 17(2)

Insert:

          (2A)  The magistrate must order the release of the person from custody, or the discharge of the recognisances on which bail was granted to the person, unless the magistrate is satisfied:

                     (a)  if subparagraph (2)(b)(i) applies:

                              (i)  that the extradition country concerned has not made an extradition request in relation to the person because of exceptional circumstances; and

                             (ii)  that the Attorney-General is likely to receive an extradition request from the extradition country concerned in relation to the person within a particular period that is reasonable in the circumstances; and

                            (iii)  that, after receiving the extradition request, the Attorney-General is likely to make a decision to give, or not to give, a notice under subsection 16(1) in relation to the person within a particular period that is reasonable in the circumstances; or

                     (b)  if subparagraph (2)(b)(ii) applies—that the Attorney-General is likely to make a decision to give, or not to give, a notice under subsection 16(1) within a particular period that is reasonable in the circumstances.

66  Paragraphs 17(3)(a) and (b)

Repeal the paragraphs, substitute:

                     (a)  a magistrate was satisfied:

                              (i)  under subparagraph (2A)(a)(ii) that an extradition request was likely to be received in relation to a person within a particular period; or

                             (ii)  under subparagraph (2A)(a)(iii) or paragraph (2A)(b) that a decision was likely to be made to give, or not to give, a notice under subsection 16(1) in relation to a person within a particular period; and

                     (b)  the request is not received, or the decision is not made, within the period;

67  Subparagraph 18(2)(a)(i)

After “prison”, insert “or, subject to subsection (3), released on bail,”.

68  Paragraph 18(2)(b)

Repeal the paragraph, substitute:

                     (b)  if, after the person has been advised as mentioned in paragraph (a), the person again consents to being surrendered—order that the person be committed to prison or (subject to subsection (3)) released on bail, to await:

                              (i)  surrender under a surrender warrant or temporary surrender warrant; or

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

69  At the end of section 18

Add:

             (3)  A magistrate must not release a person on bail under this section unless there are special circumstances justifying such release.

             (4)  If a magistrate makes an order under paragraph (2)(b), the magistrate must advise the Attorney-General in writing of the offence or the offences in respect of which the person has consented.

             (5)  An order committing a person to prison under paragraph (2)(b) must be made by warrant in the statutory form.

70  Paragraph 19(9)(a)

Repeal the paragraph, substitute:

                     (a)  order that the person be committed to prison or (subject to subsection (9A)) released on bail, to await:

                              (i)  surrender under a surrender warrant or temporary surrender warrant; or

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

71  Paragraph 19(9)(b)

Omit “in the warrant is made, seek a review of the order”, substitute “under paragraph (a) is made, seek a review of the order”.

72  After subsection 19(9)

Insert:

          (9A)  A magistrate must not release a person on bail under paragraph (9)(a) unless there are special circumstances justifying such release.

          (9B)  An order committing a person to prison under paragraph (9)(a) must be made by warrant in the statutory form.

73  Paragraph 21(2)(b)

Repeal the paragraph, substitute:

                     (b)  quash the order.

74  After subsection 21(2)

Insert:

          (2A)  If the Federal Court quashes the order, it must:

                     (a)  in the case of an order under subsection 19(9)—order the release of the person or the discharge of the recognisances on which bail was granted; or

                     (b)  in the case of an order under subsection 19(10)—order that the person be committed to prison or (subject to subsection (2B)) released on bail, to await:

                              (i)  surrender under a surrender warrant or temporary surrender warrant; or

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

          (2B)  The Federal Court must not release a person on bail under paragraph (2A)(b) unless there are special circumstances justifying such release.

          (2C)  An order committing a person to prison under paragraph (2A)(b) must be made by warrant in the statutory form.

75  Paragraph 21(6)(e)

Repeal the paragraph, substitute:

                     (e)  if an order for the release of the person (whether or not on bail) has been made under subsection 19(9) or (10), or subsection (2A) of this section—the court to which the application or appeal is made may order both:

                              (i)  if the person was released on bail—the discharge of the recognisances on which bail was granted; and

                             (ii)  the arrest of the person;

76  Subparagraph 21(6)(f)(i)

Repeal the subparagraph, substitute:

                              (i)  if an order for the release of the person has not been made; or

77  Subparagraph 21(6)(f)(iv)

Omit “on such terms and conditions as the court thinks fit”.

78  Subsection 22(1) (definition of eligible person )

After “prison”, insert “or released on bail”.

79  Subsection 22(1) (paragraph (b) of the definition of eligible person )

Repeal the paragraph, substitute:

                     (b)  by order made under subsection 19(9) or 21(2A) (including because of an appeal referred to in section 21), where no proceedings under section 21 are being conducted or are available in relation to the determination under subsection 19(9) to which the order relates.

80  Subsection 22(5)

Omit “the Attorney-General shall order, in writing, the release of the person.”, substitute:

                   the Attorney-General must, by notice in writing:

                     (a)  if the person has been committed to prison—direct a magistrate to order the release of the person; or

                     (b)  if the person has been released on bail—direct a magistrate to order the discharge of the recognisances on which bail was granted.

81  Paragraph 26(1)(c)

Before “require”, insert “if the person has been committed to prison—”.

82  After paragraph 26(1)(c)

Insert:

                    (ca)  if the person has been released on bail—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;

83  Subparagraph 35(6)(g)(iv)

Omit “on such terms and conditions as the court thinks fit”.

84  After section 49A

Insert:

49B   Orders for bail to be on terms and conditions court or magistrate thinks fit

                   A decision under this 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.

49C   Availability of bail during judicial review proceedings relating to certain determinations

             (1)  This section applies if:

                     (a)  the Attorney-General determines under subsection 15B(2) or 22(2) that a person is to be surrendered to an extradition country in relation to one or more extradition offences; and

                     (b)  the person applies to a court for judicial review of the determination.

             (2)  The court to which the application is made, or any court hearing an appeal in relation to the determination, may, subject to subsection (3), order the release of the person on bail until the application has been determined or the appeal has been heard (as the case requires).

             (3)  A court must not release a person on bail under subsection (2) unless there are special circumstances justifying such release.

85  Application

The amendments of subsections 17(2) and (3) of the Extradition Act 1988 made by this Division apply to a person who is remanded under section 15 of the Extradition Act 1988 on or after the commencement of this item.

Division 9—Other minor technical amendments

Extradition Act 1988

86  Section 5

Insert:

extraditable person has the meaning given by section 6.

87  Section 5

Insert:

extradition arrest warrant means a warrant issued under section 12.

88  Section 5 (at the end of paragraph (a) of the definition of extradition country )

Add “or”.

89  Section 5 (subparagraph (b)(ii) of the definition of extradition country )

Omit “responsible; and”, substitute “responsible; or”.

90  Section 5

Insert:

extradition objection has the meaning given by section 7.

91  Section 5 (definition of provisional arrest warrant )

Repeal the definition, substitute:

provisional arrest warrant means a warrant issued under section 29.

92  Section 5 (before subparagraph (b)(i) of the definition of surrender warrant )

Insert:

                            (ia)  a warrant issued, or required to be issued, under subparagraph 33A(2)(b)(i); or

93  At the end of section 12

Add:

             (4)  A notice given under subsection (3) is not a legislative instrument.

Note:       The heading to section 12 is replaced by the heading “ Extradition arrest warrants ”.

94  Paragraphs 13(1)(a) and (2)(a)

Omit “a provisional arrest warrant”, substitute “an extradition arrest warrant”.

95  At the end of section 13

Add:

             (8)  If a direction under subsection (5) is given in writing, the direction is not a legislative instrument.

96  Paragraph 14(1)(a)

Omit “a provisional arrest warrant”, substitute “an extradition arrest warrant”.

97  After subsection 14(5)

Insert:

          (5A)  If a direction under subsection (5) is given in writing, the direction is not a legislative instrument.

98  Subsection 15(1)

Omit “a provisional arrest warrant”, substitute “an extradition arrest warrant”.

99  At the end of section 16

Add:

             (4)  A notice given under subsection (1) is not a legislative instrument.

100  At the end of section 17

Add:

             (6)  A notice given under subsection (1) is not a legislative instrument.

101  Paragraph 21(6)(d)

Before “the court”, insert “subject to section 21A,”.

102  After section 21

Insert:

21A   Admission of evidence etc. on review or appeal

Scope

             (1)  This section applies if a person or extradition country:

                     (a)  applies under subsection 21(1) for a review of an order;

                     (b)  appeals under subsection 21(3) against an order made on that review; or

                     (c)  appeals to the High Court against an order made on that appeal.

Admission of evidence

             (2)  If:

                     (a)  a party to the relevant proceedings under section 19 was prevented from adducing evidence (the excluded evidence ) in the proceedings; and

                     (b)  the review court considers that the party should have been permitted to adduce the excluded evidence in those proceedings;

the court may receive:

                     (c)  the excluded evidence; and

                     (d)  further evidence, or submissions, that directly relate to the excluded evidence.

Documents containing deficiencies

             (3)  If:

                     (a)  a document is:

                              (i)  a document to which the review court must have regard under paragraph 21(6)(d); or

                             (ii)  a document that is received by the review court under subsection (2) of this section; and

                     (b)  the document contains a deficiency of relevance to the review or appeal; and

                     (c)  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.

             (4)  This section 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.

Definition

             (5)  In this section:

review court means the court to which the application or appeal was made.

103  At the end of paragraph 22(3)(a)

Add “and”.

104  Paragraph 22(3)(b)

Repeal the paragraph, substitute:

                     (b)  the Attorney-General 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; and

105  At the end of paragraphs 22(3)(c) and (d)

Add “and”.

106  At the end of paragraph 22(4)(a)

Add “or”.

107  At the end of subparagraphs 22(4)(d)(i) and (ii)

Add “or”.

108  At the end of section 22

Add:

             (6)  If a determination under subsection (2) is made in writing, the determination is not a legislative instrument.

             (7)  An order made under subsection (5) is not a legislative instrument.

109  At the end of paragraphs 24(1)(a) and (b)

Add “and”.

110  At the end of subparagraph 24(3)(b)(i)

Add “or”.

111  At the end of section 24

Add:

             (6)  If:

                     (a)  the Attorney-General informs an extradition country as mentioned in subsection (4); and

                     (b)  the Attorney-General does so in writing;

the written instrument is not a legislative instrument.

112  At the end of subparagraph 25(2)(a)(i)

Add “or”.

113  Paragraph 26(1)(c)

Omit “a police officer”, substitute “any police officer”.

114  Paragraph 26(1)(d)

Omit “the police officer to transport the eligible person in custody, and, if necessary or convenient, to detain the eligible person in custody”, substitute “the eligible person to be transported in custody and, if necessary or convenient, detained in custody, by any police officer”.

115  Paragraph 26(1)(d)

Omit “(in this subsection called the foreign escort officer )”, substitute “or a person included in a specified class (in this subsection called the escort officer )”.

116  Paragraph 26(1)(e)

Omit “foreign”.

117  After subsection 26(1)

Insert:

          (1A)  To avoid doubt, subject to this section 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 the extradition country, to a person appointed by the extradition country to receive the eligible person.

118  Section 27

Before “Where:”, insert “(1)”.

119  At the end of section 27

Add:

             (2)  A notice given under subsection (1) is not a legislative instrument.

120  At the end of section 30

Add:

             (8)  If a direction under subsection (5) is given in writing, the direction is not a legislative instrument.

121  After subsection 31(5)

Insert:

          (5A)  If a direction under subsection (5) is given in writing, the direction is not a legislative instrument.

122  Subsection 32(2)

Omit “34”, substitute “33A or 34, or both,”.

123  Paragraph 33A(1)(b)

Omit “and”.

124  Paragraph 33A(1)(c)

Repeal the paragraph.

125  Paragraph 38(1)(a)

Omit “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”, substitute “the eligible person to be taken into custody, transported in custody and, if necessary or convenient, detained in custody, by any police officer”.

126  Paragraph 38(1)(a)

Omit “(in this subsection called the New Zealand escort officer )”, substitute “or a person included in a specified class (in this subsection called the escort officer )”.

127  Paragraph 38(1)(b)

Omit “New Zealand” (first occurring).

128  After subsection 38(1)

Insert:

          (1A)  To avoid doubt, subject to this section and subsection 33(3) of the Acts Interpretation Act 1901 , a surrender warrant or a temporary surrender 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.

129  Section 39

Before “Where:”, insert “(1)”.

130  At the end of section 39

Add:

             (2)  A notice given under subsection (1) is not a legislative instrument.

131  At the end of section 43

Add:

             (4)  A notice given under subsection (1) is not a legislative instrument.

132  At the end of section 44

Add:

             (3)  If the undertaking mentioned in subsection (1) is given in writing, the undertaking is not a legislative instrument.

             (4)  An order made under paragraph (1)(d) is not a legislative instrument.

             (5)  If an order under subsection (2) is made in writing, the order is not a legislative instrument.

133  At the end of section 45

Add:

Consent is not a legislative instrument

             (6)  A consent given under subsection (3D) is not a legislative instrument.

134  Section 47

Omit “A provisional arrest warrant, within the meaning of Part II or III,”, substitute “An extradition arrest warrant, a provisional arrest warrant”.

135  At the end of section 48

Add:

             (3)  An authorisation given under subparagraph (1)(b)(iv) is not a legislative instrument.

             (4)  If a direction under subparagraph (1)(b)(v) is given in writing, the direction is not a legislative instrument.

136  Paragraph 55(d)

Omit “prescribing penalties not exceeding a fine of $2,000”, substitute “penalties not exceeding a fine of 20 penalty units”.

137  Application—section 21A of the Extradition Act 1988 etc.

Section 21A of the Extradition Act 1988 , as inserted by this Schedule, applies 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.

138  Application of amendments made by items 122, 123 and 124

The amendments made by items 122, 123 and 124 of this Schedule 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.

139  Application of amendment made by item 136

The amendment made by item 136 of this Schedule applies 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.