Commonwealth Numbered Regulations

1989 No. 40 EXTRADITION (IRELAND) REGULATIONS - SCHEDULE

SCHEDULE
Regulation 5
TREATY ON EXTRADITION BETWEEN AUSTRALIA AND IRELAND Australia and Ireland,
DESIRING to make more effective the co-operation of the two countries in the
suppression of crime, HAVE AGREED as follows:
ARTICLE I
OBLIGATION TO EXTRADITE Each Contracting Party agrees to extradite to the
other, in accordance with the provisions of this Treaty, but subject to the
law of the requested State and to such exceptions as are therein provided, any
persons, including its citizens or nationals, who are wanted for prosecution
or for the imposition or enforcement of a sentence in the requesting State for
an extraditable offence.
ARTICLE II
EXTRADITABLE OFFENCES 1. For the purposes of this Treaty, an extraditable
offence is an offence however described which is punishable under the laws of
both Contracting Parties by imprisonment for a period of at least one year or
by a more severe penalty. Where the request for extradition relates to a
person who has been convicted and sentenced to a term of imprisonment in
respect of such an offence, extradition shall be granted only if imprisonment
for a period of at least six months remains to be served. 2. For the purposes
of this Article, it shall not matter whether or not the laws of the
Contracting Parties place the acts or omissions constituting the offence
within the same category of offence or denominate the offence by the same
terminology. 3. Where the offence has been committed outside the territory of
the requesting State, extradition shall be granted where the law of the
requested State provides for the punishment of an offence committed outside
its territory in similar circumstances. Where the law of the requested State
does not so provide, that State may, in its discretion, grant extradition. 4.
Extradition shall be granted, subject to the provisions of this Treaty,
whether the offence in relation to which extradition is sought was committed
before or after this Treaty enters into force, provided that:

   (a)  it was an offence under the law of the requesting State at the time of
        the acts or omissions constituting the offence; and

   (b)  the acts or omissions alleged would, if they had taken place in the
        requested State at the time of the making of the request for
        extradition, have constituted an offence under the law of that State.
ARTICLE III
EXCEPTIONS TO EXTRADITION 1. Extradition shall not be granted in any of the
following circumstances:

   (a)  if the offence for which extradition is requested is a political
        offence or an offence connected with a political offence. Reference to
        a political offence shall not include the taking or attempted taking
        of the life of a Head of State or a member of his family or an offence
        against the law relating to genocide;

   (b)  if there are substantial grounds for believing that a request for
        extradition for an ordinary criminal offence has been made for the
        purpose of prosecuting or punishing a person on account of his race,
        religion, nationality or political opinion or that his position may be
        prejudiced for any of these reasons;

   (c)  if the offence for which extradition is requested is an offence under
        military law which is not an offence under the ordinary criminal law
        of the Contracting Parties;

   (d)  if the offence for which extradition is requested is regarded under
        the law of the requested State as having been committed in that State;

   (e)  if a prosecution in respect of the offence for which extradition is
        requested is pending in the requested State against the person whose
        extradition is sought;

   (f)  if final judgment has been passed in the requested State or in a third
        State upon the person claimed in respect of the offence for which his
        extradition is sought; or

   (g)  if the person whose extradition is sought has, according to the law of
        either Contracting Party, become immune from prosecution or punishment
        by reason of lapse of time. 2. Extradition may be refused in any of
        the following circumstances:

   (a)  if the offence for which extradition is requested is a revenue
        offence. For the purpose of this exception, "revenue offence" means an
        offence in connection with taxes, duties or exchange control but does
        not include an offence involving the use or threat of force, or
        perjury or the forging of a document issued under statutory authority
        or an offence alleged to have been committed by an officer of the
        revenue of the requesting State in his capacity as such officer;

   (b)  if the competent authorities of the requested State have decided
        either not to institute, or to terminate, proceedings against the
        person claimed for the offence in respect of which extradition is
        sought; or

   (c)  if the offence for which extradition is requested is punishable by
        death under the law of the requesting State and in respect of the
        offence such penalty is not provided for in the law of the requested
        State or is not generally carried out, unless the requesting State
        gives such assurance as the requested State considers sufficient that
        the death penalty will not be carried out.
ARTICLE IV
POSTPONEMENT OF SURRENDER The requested State may postpone the surrender of a
person in order to proceed against him, or so that he may serve a sentence,
for an offence other than the offence for which his extradition is sought.
ARTICLE V
EXTRADITION PROCEDURE AND REQUIRED DOCUMENTS 1. The request for extradition
shall be made in writing and shall be communicated through the diplomatic
channel. 2. A request for extradition emanating from Ireland shall be
supported:

   (a)  if the person is accused, or has been convicted in his absence, of an
        offence-by a warrant for the arrest or a copy of the warrant for the
        arrest of the person, a statement of each offence for which
        extradition is sought and a statement of the acts or omissions which
        are alleged against the person in respect of each offence;

   (b)  if the person has been convicted of an offence otherwise than in his
        absence-by such documents as provide evidence of the conviction and
        the sentence imposed, the fact that the sentence is immediately
        enforceable and the extent to which the sentence has not been carried
        out;

   (c)  if the person has been convicted of an offence otherwise than in his
        absence but no sentence has been imposed-by such documents as provide
        evidence of the conviction and a statement affirming that it is
        intended to impose a sentence;

   (d)  in all cases, by a copy of the relevant provisions of the statute, if
        any, creating the offence or a statement of the relevant law as to the
        offence, including any law relating to the limitation of proceedings,
        as the case may be, and in either case a statement of the punishment
        that can be imposed for the offence; and

   (e)  in all cases, by information or documents which will help to establish
        that the person whose surrender is sought is the person accused of or
        convicted of the offence. 3. A request for extradition emanating from
        Australia shall be supported by the following documents:

   (a)  the original or an authenticated copy of the conviction and sentence
        immediately enforceable or, as the case may be, of the warrant of
        arrest or other order having the same effect and issued in accordance
        with the procedure laid down in the law of the requesting State;

   (b)  if a sentence of imprisonment has been imposed, a statement of the
        period of imprisonment which remains to be served;

   (c)  a statement of each offence for which extradition is requested
        specifying, as accurately as possible, the time and place of
        commission, its legal description and a reference to the relevant
        provisions of the law of the requesting State;

   (d)  a copy of the relevant enactments of the requesting State or, where
        this is not possible, a statement of the relevant law; and

   (e)  as accurate a description as possible of the person claimed, together
        with any other information which will help to establish his identity
        and nationality.
ARTICLE VI
AUTHENTICATION OF SUPPORTING DOCUMENTS 1. All documents submitted in support
of a request for extradition in accordance with Article V shall be duly
authenticated. A document that supports a request for extradition shall be
admitted in evidence, if duly authenticated, in any extradition proceedings in
the requested State. 2. A document is duly authenticated for the purposes of
this Treaty if:

   (a)  it purports to be signed or certified by a Judge, District Justice,
        Magistrate or officer of the requesting State; and

   (b)  it purports to be authenticated by the oath or affirmation of a
        witness or by being sealed with the official seal of a Minister of
        State of the requesting State.
ARTICLE VII
ADDITIONAL INFORMATION 1. If the requested State considers that the
information furnished in support of the request for the extradition of a
person is not sufficient to fulfil the requirements of its law with respect to
extradition, that State may request that additional information be furnished
within such time and in such manner as it specifies. 2. If the person whose
extradition is requested is in custody and the additional information
requested is not received within the time or in the manner specified, or is
not sufficient, the person may be released from custody, but such release
shall not preclude the requesting State from making a fresh request for the
extradition of the person. 3. Where the person is released from custody in
accordance with paragraph 2, the requested State shall notify the requesting
State forthwith.
ARTICLE VIII
PROVISIONAL ARREST 1. In case of urgency, a Contracting Party may apply for
the provisional arrest of a person sought. The application for provisional
arrest shall be made through the diplomatic channel or between the Department
of Justice in Ireland and the Attorney General's Department of Australia, in
which case the facilities of INTERPOL may be used. The application may be
transmitted by post or telegraph or by any other means affording a record in
writing. 2. The application shall contain:

   (a)  a statement of the nature of the offence and of the time and place of
        its commission;

   (b)  a description of the person whose arrest is sought;

   (c)  a statement of intention to request the extradition of that person;

   (d)  (i) in the case of an application emanating from Ireland-a statement
        that a warrant for the apprehension of the person has been issued and
        is in force; or (d) (ii) in the case of an application emanating from
        Australia-a statement that one of the documents mentioned in paragraph
        3 (a) of Article V exists in respect of that person; and

   (e)  a statement of the punishment that can be imposed for the offence,
        and, where a sentence has been imposed, a statement of that sentence
        and, in the case of a sentence of imprisonment, the period remaining
        to be served. 3. On receipt of such an application the requested State
        shall take the necessary steps to secure the arrest of the person
        claimed and the requesting State shall be promptly notified of the
        result of its application. 4. Unless the law of the requested State
        otherwise provides, a person arrested upon such an application shall
        be set at liberty upon the expiration of eighteen days from the date
        of his arrest if a request for his extradition, supported by the
        documents specified in Article V, has not been received. 5. The
        release of a person pursuant to paragraph 4 of this Article shall not
        prevent the institution of proceedings with a view to extraditing the
        person sought if a request for his extradition is subsequently
        received. 6. The provisions of Article VII shall apply mutatis
        mutandis to an application for provisional arrest.
ARTICLE IX
MULTIPLE REQUESTS 1. If requests are received from two or more States for the
extradition of the same person, whether for the same offence or for different
offences, the requested State shall determine to which of those States the
person is to be extradited and shall notify the requesting State of its
decision. 2. In determining to which State a person is to be extradited, the
requested State shall have regard to all relevant circumstances and, in
particular, to:

   (a)  the relative seriousness of the offences;

   (b)  the time and place of commission of each offence;

   (c)  the respective dates of the requests;

   (d)  the nationality of the person;

   (e)  the ordinary place of residence of the person; and

   (f)  the possibility of the subsequent surrender of the person to another
        State.
ARTICLE X
SURRENDER OF PERSON 1. The requested State shall, as soon as the decision on
the request for extradition has been made pursuant to its law, communicate
that decision to the requesting State through the diplomatic channel. 2. Where
extradition of a person for an offence is granted, the person shall be removed
from the requested State from a point of departure in that State convenient to
the requesting State. 3. The requesting State shall remove the person from the
requested State within such reasonable period as the last-mentioned State
specifies and, if the person is not removed within that period, the requested
State may refuse to extradite him for the same offence.
ARTICLE XI
SURRENDER OF PROPERTY 1. To the extent permitted under the law of the
requested State all property found in the requested State that has been
acquired as a result of the offence or may be required as evidence shall, if
the requesting State so requests, be surrendered if extradition is granted. 2.
Subject to paragraph 1 of this Article, the above-mentioned property shall, if
the requesting State so requests, be surrendered to that State even if the
extradition, having been consented to, cannot be carried out owing to the
death or escape of the person sought. 3. The rights of the requested State or
of third parties in the property shall be preserved. Where such rights exist,
the property shall, without charge, be returned to the requested State at the
end of the proceedings in the requesting State if the requested State so
requests. 4. The requested State may temporarily retain the property referred
to in this Article if it considers it necessary for the purpose of criminal or
civil proceedings. In such a case the requesting State may request the
temporary handing over of the property, undertaking to return it as soon as
the proceedings conducted in its territory permit if the requested State so
requests.
ARTICLE XII
RULE OF SPECIALITY 1. A person extradited under this Treaty shall not be
proceeded against, sentenced or detained with a view to the carrying out of a
sentence, or be otherwise restricted in his personal freedom, in the
requesting State for any offence committed before his surrender, other than
the offence for which his extradition was granted, except:

   (a)  where the requested State consents; or

   (b)  where the person extradited, having had an opportunity to leave the
        requesting State, has not done so within 45 days of his final
        discharge in respect of the offence for which he was surrendered, or
        has returned to the requesting State after leaving it. 2. If the
        description of the offence charged in the requesting State is altered
        in the course of proceedings, the person extradited shall only be
        proceeded against or sentenced in so far as the offence under its new
        description is shown by its constituent elements to be an offence
        which would allow extradition. 3. A request for the consent of the
        requested State under this Article shall be accompanied by such
        information and documents as are required by that State.
ARTICLE XIII
SURRENDER TO A THIRD STATE 1. The person extradited may not be surrendered by
the requesting State to a third State for an offence committed prior to his
surrender to the first-mentioned State, except:

   (a)  where the requested State consents; or

   (b)  where the person extradited, having had an opportunity to leave the
        requesting State, has not done so within 45 days of his final
        discharge in respect of the offence for which he was surrendered, or
        has returned to the requesting State after leaving it. 2. Where the
        consent of the requested State is sought in accordance with this
        Article, that State may request that the request for the consent be
        supported by the relevant documents mentioned in Article V of this
        Treaty.
ARTICLE XIV
TRANSIT 1. Where a person is to be extradited pursuant to an agreement in the
nature of an extradition agreement to a Contracting Party from a third State
through the territory of the other Contracting Party, the Contracting Party to
which the person is to be extradited shall request the other Contracting Party
to permit the transit of that person through its territory. 2. Upon receipt of
such a request the requested Contracting Party shall grant the request unless
it is satisfied that there are reasonable grounds for refusing to do so. 3.
Permission for the transit of a person shall, subject to the law of the
requested Contracting Party, include permission for the person to be held in
custody during transit. 4. Where a person is being held in custody pursuant to
paragraph 3, the Contracting Party in whose territory the person is being held
may direct that the person be released if his transportation is not continued
within a reasonable time. 5. The Contracting Party to which the person is
being extradited shall reimburse the other Contracting Party for any expense
incurred by that other Contracting Party in connection with the transit.
ARTICLE XV
EXPENSES 1. The requesting State shall not be liable for the costs of any
proceedings in the requested State arising out of a request for extradition.
2. The requested State shall bear the expenses incurred in its territory in
the arrest of the person whose extradition is requested, and in the
maintenance in custody of the person until he is surrendered to a person
nominated by the requesting State in order to be removed from the requested
State in accordance with paragraph 2 of Article X. 3. The requesting State
shall bear the expenses incurred in conveying the person from the territory of
the requested State.
ARTICLE XVI
ENTRY INTO FORCE AND TERMINATION 1. This Treaty shall enter into force thirty
days after the date on which the Contracting Parties have notified each other
in writing that their respective requirements for the entry into force of this
Treaty have been complied with. 2. Either Contracting Party may terminate this
Treaty by notice in writing at any time and it shall cease to be in force six
months after the date of receipt of such notice.
IN WITNESS WHEREOF the undersigned, being duly authorised thereto, have signed
this Treaty.
DONE in duplicate at Dublin on the Second day of September One Thousand, Nine
Hundred and Eighty-Five.
FOR AUSTRALIA                                                      FOR
IRELAND
LIONEL BOWEN                                                       JOHN
ROGERS