Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Act 2012 (7 of 2012)

Schedule 2   Amendments relating to extradition

Part 3   Other amendments

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 ”.