Extradition (Federative Republic of Brazil) Regulations

The Extradition (Federative Republic of Brazil) Regulations 1996 (Cth) provide the domestic legal mechanism through which Australia executes its bilateral extradition obligations with Brazil. Promulgated under the parent Extradition Act 1988 (Cth), these regulations commenced on 1 September 1996, as prescribed by Regulation 2.

The primary administrative action of the instrument is found in Regulation 3, which formally declares the Federative Republic of Brazil to be an "extradition country" for the purposes of Australian law. Under Regulation 4, the Extradition Act 1988 (Cth) is applied to Brazil subject to the terms of the "Treaty on Extradition between Australia and the Federative Republic of Brazil," which was executed in Canberra on 22 August 1994. The full English text of this treaty is set out in the Schedule to the regulations.

By declaring Brazil an extradition country and incorporating the treaty terms, the regulations modify the standard statutory extradition process. The regulations establish a reciprocal legal framework for the surrender of persons wanted for prosecution, or for the imposition or enforcement of an existing sentence, for extraditable offences. Operationally, the regulations alter the legal position of individuals within Australian jurisdiction who face criminal charges or convictions in Brazil, and vice versa. It substitutes the discretionary, ad hoc international comity approach with a structured, treaty-based process that defines the parameters of executive cooperation, judicial assessment, and administrative detention.

Additionally, under Regulation 5, this instrument repeals the predecessor Extradition (Brazil) Regulations (Statutory Rules 1988 No. 299). This repeal establishes the 1996 regulations and the 1994 treaty as the exclusive framework governing bilateral extraditions between the two nations from the commencement date onward.

Statutory Rules 1996 No. 1701

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Extradition (Federative Republic of Brazil) Regulations

I, The Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Extradition Act 1988.

Dated 29 July 1996.

WILLIAM DEANE

Governor-General

By His Excellency’s Command,

DARYL WILLIAMS

Attorney-General and Minister for Justice

____________

Citation

These Regulations may be cited as the Extradition (Federative Republic of Brazil) Regulations.

Commencement

These Regulations commence on 1 September 1996.

Declaration of Federative Republic of Brazil as extradition country

The Federative Republic of Brazil is declared to be an extradition country.

Application of Act

The Extradition Act 1988 applies in relation to the Federative Republic of Brazil subject to the Treaty on Extradition between Australia and the Federative Republic of Brazil done at Canberra on 22 August 1994 (being the treaty a copy of the English text of which is set out in the Schedule).

Repeal of Extradition (Brazil) Regulations

Statutory Rules 1988 No. 299 is repealed.

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SCHEDULE Regulation 4

TREATY ON EXTRADITION BETWEEN AUSTRALIA

AND THE FEDERATIVE REPUBLIC OF BRAZIL

AUSTRALIA AND THE FEDERATIVE REPUBLIC OF BRAZIL, herein called the Contracting Parties,

DESIRING to make more effective the co-operation between their respective countries in the prevention and suppression of crime by concluding a treaty on extradition,

HAVE AGREED as follows:

SCHEDULE—continued

Article 1

Obligation to extradite

Each Contracting Party agrees to extradite to the other, in accordance with the provisions of this Treaty, any person who is wanted for prosecution or the imposition or enforcement of a sentence in the Requesting Party for an extraditable offence.

Article 2

Extraditable offences

For the purposes of this Treaty, extradition shall be granted for conduct which constitutes an offence under the laws of both Contracting Parties that is punishable by deprivation of liberty for a period of at least one year or by a more severe penalty.
Where the request for extradition relates to a person sentenced to deprivation of liberty by a court of the Requesting Party for any extraditable offence, extradition shall be granted only if a period of at least nine months of the sentence remains to be served.
For the purposes of this Article, in determining whether conduct is an offence against the law of the Requested Party:

(a) it shall not matter whether the laws of the Contracting Parties place the conduct constituting the offence within the same category of offence or denominate the offence by the same terminology;

(b) the totality of the conduct alleged against the person whose extradition is sought shall be taken into account and it shall not matter whether, under the laws of the Contracting Parties, the constituent elements of the offence differ.

SCHEDULE—continued

An offence of a fiscal character, including an offence against a law relating to taxation, customs duties, foreign exchange control or any other revenue matter, is an extraditable offence for the purposes of this Treaty. Provided that the conduct for which extradition is sought is an offence in the Requested Party, extradition may not be refused on the ground that the law of the Requested Party does not impose the same kind of tax or duty or does not contain a tax, duty, customs or exchange regulation of the same kind as the law of the Requesting Party.
Where the offence has been committed outside the territory of the Requesting Party, extradition shall be granted where the law of the Requested Party provides for the punishment of an offence committed outside its territory in similar circumstances. Where the law of the Requested Party does not so provide, the Requested Party may, in its discretion, grant extradition.
Extradition may be granted pursuant to the provisions of this Treaty in respect of an offence provided that:

(a) it was an offence in the Requesting Party at the time of the conduct constituting the offence; and

(b) the conduct alleged would, if it had taken place in the territory of the Requested Party at the time of the making of the request for extradition, have constituted an offence against the law in force in the territory of the Requested Party.

If the request for extradition relates to a number of offences, each of which is punishable under the laws of both Parties, but some of which do not meet the requirements of paragraphs 1 and 2, the Requested Party may grant extradition for such offences provided that the person is to be extradited for at least one extraditable offence.

Article 3

Mandatory refusal of extradition

Extradition shall not be granted in any of the following circumstances:

SCHEDULE—continued

(a) when the Requested Party is competent, according to its law, to prosecute the person whose surrender is sought for the crime or offence for which that person’s extradition is requested and the Requested Party intends to exercise its jurisdiction;

(b) when, on the basis of the same facts, the person sought is being or has already been, finally judged in the Requested Party;

(d) when the legal proceedings, or the enforcement of the penalty, for the offence committed has become barred by limitation, according to the law of the Requested Party;

(e) when the person sought may be, or has been, tried or sentenced by an extraordinary or ad hoc tribunal;

(f) when the offence for which the person’s extradition is requested is of a purely military character;

(g) when the offence for which extradition is requested is considered by the Requested Party to be a political offence. For the purposes of this paragraph, political offence shall not include:

(i) the taking or attempted taking of the life of a Head of State, a Head of Government or a member of his or her family; or

(ii) an offence for which each Contracting Party has an obligation pursuant to a multilateral international agreement to extradite the person sought or to submit the case to its competent authorities for the purpose of prosecution.

In all other cases, the determination of whether an offence constitutes a political offence will be the exclusive responsibility of the competent authorities of the Requested Party.

SCHEDULE—continued

(h) when the Requested Party has substantial grounds for believing that the request for extradition has been presented with a view to prosecuting or punishing the person sought, by reason of that person’s race, religion, nationality or political opinion, or that that person’s position may be prejudiced for any of those reasons; or

(i) if the offence for which extradition is sought is an offence which carries a punishment of the kind referred to in Article 7 of the International Covenant on Civil and Political Rights.

Article 4

Discretionary refusal of extradition

Extradition may be refused under this Treaty in any of the following circumstances:

(a) when the offence with which the person sought is charged or of which the person is convicted, or any other offence for which the person may be detained or tried in accordance with this Treaty, carries the death penalty under the law of the Requesting Party unless that Party undertakes that the death penalty will not be imposed or, if imposed, will not be carried out;

(b) when the person sought has been finally acquitted or convicted in a third State for the same offence for which extradition is requested and, if convicted, the sentence imposed has been fully enforced or is no longer enforceable; and

(c) when, in exceptional circumstances, the Requested Party while also taking into account the seriousness of the offence and the interests of the Requesting Party decides that, because of the personal circumstances of the person sought, the extradition would be incompatible with humanitarian considerations.

SCHEDULE—continued

Article 5

Extradition of nationals

There is no obligation upon the Requested Party to grant the extradition of a person who is a national of the Requested Party, but the extradition of its nationals will be subject to the appropriate laws of that Party.
Where a Party refuses extradition pursuant to paragraph 1 of this Article, it shall submit the case to its competent authorities in order that proceedings for the prosecution of the person in respect of all or any of the offences for which extradition has been sought may be taken. That Party shall inform the Requesting Party of any action taken and the outcome of any prosecution. Nationality shall be determined at the time of the commission of the offence for which extradition is requested.

Article 6

Rule of speciality

A person who has been extradited under this Treaty shall not be detained, prosecuted or tried for any offence committed before extradition other than that for which extradition has been granted, nor extradited to a third State for any offence, except in any of the following circumstances:

(a) when that person has left the territory of the Requesting Party after extradition and has voluntarily returned to it;

(b) when that person has not left the territory of the Requesting Party within forty-five days after being free to do so; or

(c) when the Requested Party consents. A request for consent shall be submitted, accompanied by the documents mentioned in Article 7 and a record of any statement made by the extradited person in respect of the offence concerned.

The Requesting Party may charge a person who has been extradited with an offence other than that for which extradition was granted, provided that offence is:

SCHEDULE—continued

(a) based on proof of the same facts contained in the extradition request and its supporting documents; and

(b) punishable by the same maximum penalty as, or a lesser maximum penalty than, the offence for which the person was extradited.

Paragraph 1 of this Article shall not apply to offences committed after extradition.
Paragraph 1(b) of this Article shall not apply if it might be construed directly or indirectly as banishment, expulsion or forced removal of a Brazilian national from Brazil.

Article 7

The request and supporting documents

A request for extradition shall be made in writing and shall be communicated through the diplomatic channel.
The request shall be accompanied by:

(a) a statement of the acts or omissions which are alleged against the person in respect of each offence for which extradition is sought;

(b) a statement of each offence for which extradition is sought;

(c) the details necessary to establish the identity and nationality of the person sought including, where possible, photographs and fingerprints;

(d) the text of the laws creating the offence and describing the penalty which may be imposed or, if the request is made by Australia for a common law offence, by a statement of the basis of the creation of the offence and the applicable penalty; and

SCHEDULE—continued

(e) if the request is made by Australia, the text of the laws imposing any limitation in respect of proceedings or, if the request is made by Brazil, the text of the laws relating to the extinguishment of the action or the penalty.

When the request relates to a person who has not been convicted, it shall also be accompanied by an original or in its absence an authenticated copy of a detention order or a warrant of arrest or by the equivalent writ of legal process, issued by the competent authority of the Requesting Party.
When the request relates to a person who has been convicted, it shall also be accompanied by the following documents:

(a) if the request has been made by Australia, a certificate of conviction and a copy of the sentence, if it has been imposed; or if a sentence has not been imposed a statement of intention to impose a sentence;

(b) if the request has been made by Brazil, a copy of the sentence that has been imposed.

When a sentence has been imposed, the Requesting Party shall provide a certificate stating that the sentence is immediately enforceable and that it has not been fully enforced and the extent to which it has not been carried out.

Article 8

Translation of the documents

The documents supporting the request for extradition shall comply with Article 9 and shall be accompanied by a translation into the language of the Requested Party.

Article 9

Authentication of supporting documents

A document that, in accordance with Article 8, accompanies a request for extradition shall be admitted, if authenticated, in any extradition proceedings in the Requested Party.

SCHEDULE—continued

A document is authenticated for the purposes of this Treaty if:

(a) it purports to be signed or certified by a Judge, Magistrate or officer in or of the Requesting Party; and

(b) it purports to be sealed with an official or public seal of the Requesting State or of a Minister of State, or of a Department or officer of the Government, of the Requesting State.

Article 10

Supplementary information

If the Requested Party considers that the information furnished in support of a request for extradition is not sufficient in accordance with this Treaty to enable extradition to be granted, that Party may request that additional information be furnished within such time as it specifies.
If the person whose extradition is sought is under arrest and the additional information furnished is not sufficient in accordance with this Treaty or is not received within the time specified, the person may be released from custody. Such release shall not preclude the Requesting Party from making a fresh request for the extradition of the person.
Where the person is released from custody in accordance with paragraph 2, the Requested Party shall notify the Requesting Party as soon as practicable.

Article 11

Provisional arrest

In case of urgency a Contracting Party may request the provisional arrest of the person sought pending the presentation of the request for extradition through the diplomatic channel. The application may be transmitted by post or telegraph or by any other means affording a record in writing.
The application for provisional arrest shall include:

SCHEDULE—continued

(a) information concerning the identity and, if available, nationality, of the person sought, the person’s physical description and probable location;

(b) a statement that extradition will be requested;

(d) a statement indicating that an order of arrest exists or a conviction was pronounced with the date, place and issuing authority; and

(e) a statement indicating the maximum deprivation of liberty that may be imposed or that was imposed and, where applicable, that remains to be served.

On receipt of such an application the Requested Party shall take the necessary steps to secure the arrest of the person claimed and the Requesting Party shall be promptly notified of the result of its request.
The person arrested shall be set at liberty if the Requesting Party fails to present the request for extradition, accompanied by the documents specified in Article 7 within sixty days from the date of arrest, provided that this shall not prevent the institution of proceedings with a view to extraditing the person sought if the request is subsequently received.

Article 12

Surrender

The Requested Party shall, as soon as a decision on the request for extradition has been made, communicate that decision to the Requesting Party through the diplomatic channel. Reasons shall be given for any complete or partial refusal of a request for extradition. Extradition having been granted, the Requested Party shall communicate promptly to the Requesting Party that the person to be extradited is held at its disposition.

SCHEDULE—continued

Where extradition of a person is granted, the person shall be conveyed by the appropriate authorities of the Requested Party to a port or airport in the territory of that Party mutually acceptable to both Parties.
The Requesting Party may send to the Requested Party, after receiving the latter’s consent, one or more duly authorised agents, either to aid in the identification of the person sought or to convey the person to the territory of the Requesting Party. Such agents, during their stay in the territory of the Requested Party, shall not perform any acts of authority, and shall be subject to the applicable laws of that Party.
The Requesting Party shall remove the person from the territory of the Requested Party within fifty days of receipt of the decision referred to in paragraph 1, and, if the person is not removed within that period, the Requested Party may set that person at liberty and may refuse extradition for the same offence.
If circumstances beyond its control prevent a Contracting Party from surrendering or removing the person to be extradited, it shall notify the other Contracting Party. The two Contracting Parties shall mutually decide upon a new date of surrender, and the provisions of paragraph 4 of this Article shall apply.

Article 13

Postponed or temporary surrender

When the person sought is being proceeded against or is serving a sentence in the Requested Party for an offence other than that for which extradition is requested, the Requested Party may surrender the person sought or postpone surrender until the conclusion of the proceedings or the service of the whole or any part of the sentence imposed. The Requested Party shall inform the Requesting Party of any postponement.

SCHEDULE—continued

When, in the opinion of the competent medical authority, the person whose extradition is requested cannot be transported from the Requested Party to the Requesting Party without serious danger to the person’s life due to grave illness, the surrender of the person under the provisions of the present Treaty shall be deferred until such time as the danger, in the opinion of the competent medical authority, has been sufficiently mitigated.
To the extent permitted by its law, where a person has been found extraditable, the Requested Party may temporarily surrender the person sought for the purposes of prosecution to the Requesting Party in accordance with conditions to be determined between the Contracting Parties. A person who is returned to the Requesting Party following a temporary surrender may be finally surrendered to serve any sentence imposed, in accordance with the provisions of this Treaty.

Article 14

Consequences of a refusal of extradition

If the extradition of a person is refused, no other request for extradition of the same person can be presented on the basis of the same facts which determined the original request.

Article 15

Communication of the final sentence

The Party to which an extradition has been granted shall notify the Requested Party of the final decision pronounced on the case.

Article 16

Expenses

The Requested Party shall make all necessary arrangements for, and meet the cost of, any proceedings arising out of a request for extradition and shall otherwise represent the interests of the Requesting Party.

SCHEDULE—continued

The Requested Party shall bear the expenses incurred in its territory in the arrest of the person whose extradition is sought, and in the maintenance in custody of the person until surrender to a person nominated by the Requesting Party.
The Requesting Party shall bear the expenses incurred in conveying the person from the territory of the Requested Party.

Article 17

Surrender of property

To the extent permitted under the law of the Requested Party and subject to the rights of third parties, which shall be duly respected, all property found in the territory of the Requested Party that has been acquired as a result of the offence or may be required as evidence shall, if the Requesting Party so requests, be surrendered if the extradition is granted.
Subject to paragraph 1 of this Article, the above mentioned property shall, if the Requesting Party so requests, be surrendered to the Requesting Party even if the extradition cannot be carried out owing to the death or escape of the person sought.
Where the law of the Requested Party or the rights of third parties so require, any articles so surrendered shall be returned to the Requested Party free of charge if that Party so requests.

Article 18

Transit

Transit through the territory of one of the Contracting Parties of a person surrendered by a third State shall be granted on request made through the diplomatic channel by the other Contracting Party. The request shall include information concerning:

(a) the nationality of the person being surrendered;

(b) the offences for which surrender has been granted;

SCHEDULE—continued

(d) details of the punishment which can be imposed for the offences for which surrender has been granted.

The request for transit may be denied for any reason for which extradition may be refused under this Treaty or if granting the request would be contrary to ordre public.
Permission for the transit of a person shall, subject to the law of the Requested Party, include permission for the person to be held in custody during transit.
Where a person is being held in custody pursuant to paragraph 2 of this Article, the Contracting Party in whose territory the person is being held may direct that the person be released if transportation is not continued within a reasonable time.
The Contracting Party to which the person is being extradited shall reimburse the other Contracting Party for any expenses incurred by that other Contracting Party in connection with the transit.
No authorisation for transit shall be required when air transport is to be used and no landing is scheduled in the territory of the transit State.
If an unscheduled landing occurs in the territory of one Contracting Party, the other Party shall furnish a request for transit as provided for in paragraph 1 of this Article. The State of transit shall detain the person being extradited until the transportation is continued provided that the request for transit is received within 96 hours of the unscheduled landing.

SCHEDULE—continued

Article 19

Concurrent requests

Where requests are received from two or more States for the extradition of the same person either for the same offence or for different offences, the Requested Party shall determine to which of those States the person is to be extradited and shall notify those States of its decision.
In determining to which State a person is to be extradited, the Requested Party shall have regard to all the relevant circumstances and, in particular, to:

(a) if the requests relate to different offences, the relative seriousness of those offences;

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

(d) the nationality of the person sought; and

(e) the ordinary place of residence of the person.

Article 20

Preservation of multilateral obligations

Nothing in this Treaty affects any obligations which have been, or shall in the future be, assumed by the Contracting Parties under any multilateral Convention.

Article 21

Entry into force and termination

The present 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.

SCHEDULE—continued

This Treaty shall apply to any offence specified in Article 2 whether it was committed before or after its entry into force.
Either Contracting Party may terminate this Treaty at any time by giving six months’ written notice to the other Contracting Party.

IN WITNESS WHEREOF, the undersigned, being duly authorised thereto by their respective Governments, have signed the present Treaty.

DONE in duplicate, in the English and Portuguese languages, each text being equally authentic, at Canberra on the twenty-second day of August 1994.

FOR AUSTRALIA:	FOR THE FEDERATIVEREPUBLIC OF BRAZIL:
GARETH EVANSMinister for Foreign Affairs	CELSO LUIZ NUNES AMORIMMinister for External Relations

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NOTE

Note: 1. Notified in the Commonwealth of Australia Gazette on 5 August 1996.

1 Extradition (Federative Republic of Brazil) Regulations

Statutory Rules 1996 No. 1701

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Extradition (Federative Republic of Brazil) Regulations

I, The Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Extradition Act 1988.

Dated 29 July 1996.

WILLIAM DEANE

Governor-General

By His Excellency’s Command,

DARYL WILLIAMS

Attorney-General and Minister for Justice

____________

Citation

These Regulations may be cited as the Extradition (Federative Republic of Brazil) Regulations.

Commencement

These Regulations commence on 1 September 1996.

Declaration of Federative Republic of Brazil as extradition country

The Federative Republic of Brazil is declared to be an extradition country.

Application of Act

The Extradition Act 1988 applies in relation to the Federative Republic of Brazil subject to the Treaty on Extradition between Australia and the Federative Republic of Brazil done at Canberra on 22 August 1994 (being the treaty a copy of the English text of which is set out in the Schedule).

Repeal of Extradition (Brazil) Regulations

Statutory Rules 1988 No. 299 is repealed.

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SCHEDULE Regulation 4

TREATY ON EXTRADITION BETWEEN AUSTRALIA

AND THE FEDERATIVE REPUBLIC OF BRAZIL

AUSTRALIA AND THE FEDERATIVE REPUBLIC OF BRAZIL, herein called the Contracting Parties,

DESIRING to make more effective the co-operation between their respective countries in the prevention and suppression of crime by concluding a treaty on extradition,

HAVE AGREED as follows:

SCHEDULE—continued

Article 1

Obligation to extradite

Article 2

Extraditable offences

To understand the operation of the regulations, several core concepts contained within the Scheduled treaty must be defined:

Extraditable Offences and Dual Criminality

Under Article 2(1), an offence is extraditable if the underlying conduct constitutes an offence under the laws of both Australia and Brazil, and is punishable by deprivation of liberty for a period of at least one year or by a more severe penalty. For individuals already sentenced, Article 2(2) stipulates that extradition will only be granted if at least nine months of the sentence remains to be served.

Crucially, Article 2(3) establishes that dual criminality is assessed based on the "totality of the conduct" alleged. It does not matter whether the laws of each country place the conduct in different legal categories or use different terminology. Under Article 2(4), fiscal offences (including taxation, customs duties, foreign exchange control, and other revenue matters) are explicitly deemed extraditable, provided the conduct constitutes an offence in the requested country.

The Rule of Speciality

Found in Article 6, the rule of speciality restricts the requesting country's ability to prosecute or punish an extradited person. Once extradited, the individual cannot be detained, prosecuted, or tried for any offence committed prior to their surrender other than the offence for which extradition was granted. This protection is lifted only if the individual voluntarily returns to the requesting country after leaving it, fails to leave within 45 days of being free to do so, or if the requested country consents to further prosecution.

Political and Military Offences

Article 3(g) establishes a mandatory exception for political offences. Extradition must be refused if the requested country considers the offence to be political. However, this concept excludes the taking or attempted taking of the life of a Head of State, a Head of Government, or a family member. It also excludes offences that the parties are obligated to prosecute or extradite under multilateral international agreements. Purely military offences are also excluded from extradition under Article 3(f).

Provisional Arrest

Under Article 11, in urgent circumstances, either country may request the provisional arrest of a person before the formal extradition request and supporting documentation are transmitted through diplomatic channels. This concept enables rapid detention to mitigate flight risk, subject to strict timelines for the subsequent delivery of formal documentation.

The regulations directly affect several distinct groups of actors, altering their legal positions, procedural options, and operational obligations.

Accused and Convicted Persons

The primary subjects of the regulations are individuals located in Australia or Brazil who are wanted for prosecution or the enforcement of a sentence. Their liberty is directly affected by the arrest, detention, and surrender mechanisms detailed in Articles 7, 11, and 12.

Citizens and Nationals

Under Article 5, both countries retain the right to refuse the extradition of their own nationals. If a country refuses to extradite a national, it is required under Article 5(2) to submit the case to its own competent authorities for domestic prosecution. For the purposes of this determination, nationality is assessed at the time the offence was committed. Furthermore, under Article 6(4), the 45-day exception to the rule of speciality does not apply if it would result in the banishment, expulsion, or forced removal of a Brazilian national from Brazil.

Executive and Diplomatic Authorities

The regulations govern the operations of the Australian Attorney-General's Department, the Federal Police, and their Brazilian counterparts (such as the Ministry of Justice and the Federal Police). Under Article 7(1), all formal requests must be made in writing and communicated through diplomatic channels, directly involving the Department of Foreign Affairs and Trade (Australia) and the Ministry of External Relations (Brazil).

Third-Party Property Owners

Article 17 governs the surrender of property acquired as a result of the offence or required as evidence. This article directly affects third parties who may have legal or equitable claims to such property, requiring that their rights be "duly respected" and that property be returned free of charge upon request after proceedings conclude.

The treaty creates a series of binding international law duties for the state parties, alongside corresponding procedural rights for individuals subject to extradition proceedings.

Obligation to Extradite

Article 1 imposes a positive duty on both Australia and Brazil to extradite any person wanted for prosecution or the enforcement of a sentence for an extraditable offence, subject to the conditions and exceptions set out in the treaty.

Mandatory Refusal Grounds

The requested country has a duty to refuse extradition under Article 3 in any of the following circumstances:

The requested country is competent to prosecute the person for the offence and intends to do so (Article 3(a)).
The person has already been finally judged, granted amnesty, or pardoned in the requested country for the same facts (Articles 3(b) and 3(c)).
The prosecution or enforcement of the penalty has become barred by limitation under the law of the requested country (Article 3(d)).
The person would be tried or sentenced by an extraordinary or ad hoc tribunal (Article 3(e)).
The offence is purely military or political (Articles 3(f) and 3(g)).
There are substantial grounds to believe the request is motivated by a desire to prosecute or punish the person on account of their race, religion, nationality, or political opinion, or that their position may be prejudiced for those reasons (Article 3(h)).
The offence carries a punishment that constitutes torture or cruel, inhuman, or degrading treatment or punishment under Article 7 of the International Covenant on Civil and Political Rights (Article 3(i)).

Discretionary Refusal Grounds

Under Article 4, the requested country may refuse extradition if:

The offence carries the death penalty under the law of the requesting country, unless that country provides a binding undertaking that the death penalty will not be imposed or carried out (Article 4(a)).
The person has been finally acquitted or convicted in a third State for the same offence, and any sentence has been fully served or is no longer enforceable (Article 4(b)).
Due to exceptional personal circumstances, and considering the seriousness of the offence, extradition would be incompatible with humanitarian considerations (Article 4(c)).

Rights of the Requested Person

Individuals have the right to a formal, documented request process. Under Article 7, the request must include detailed statements of the alleged conduct, law texts, and identity details. Under Article 8, all documents must be translated into the language of the requested country. If detained under a provisional arrest request, the person has a right to be released if the formal request is not received within 60 days of their arrest (Article 11(4)). If extradition is granted, the person must be removed within 50 days, or they may be set at liberty and extradition for that offence refused (Article 12(4)).

While the regulations themselves do not establish specific domestic criminal offences or penalties, they facilitate the domestic enforcement of foreign penal systems. The regulatory framework functions as an enforcement bridge, allowing Australia and Brazil to deploy their domestic police and custodial systems to enforce the criminal laws of the other state.

Detention and Arrest Warrants

Enforcement begins with the execution of domestic arrest warrants based on foreign charges or convictions. Under Article 7(3), unconvicted suspects cannot be extradited unless the request is accompanied by an original or authenticated copy of a detention order or warrant of arrest issued by a competent authority in the requesting country. Under Article 9, these documents must be authenticated by a judge, magistrate, or officer of the requesting state, and sealed with an official public seal.

Provisional Arrest Execution

Under Article 11, the enforcement process can be accelerated in urgent cases. On receipt of an application for provisional arrest containing the details required by Article 11(2) (including identity, offence description, and a statement that an arrest warrant exists), the requested country must take the necessary steps to secure the arrest of the individual (Article 11(3)). The individual is then maintained in custody pending the formal extradition request.

Maintenance in Custody and Transit Custody

Article 16(2) requires the requested country to bear the costs of arresting and maintaining the person in custody until they are surrendered to the requesting country's nominated agents. If a third State is extraditing a person to Australia or Brazil, Article 18 provides the legal mechanism for transit through the territory of the other party. Under Article 18(3), permission for transit includes the authority to hold the person in custody during the transit period, subject to release if the transit does not continue within a reasonable time (Article 18(4)).

Property Seizure

Article 17 permits the enforcement of property surrender. Any property acquired through the offence or required as evidence may be seized and surrendered to the requesting country. This enforcement mechanism can proceed even if the extradition itself cannot be completed due to the death or escape of the person sought (Article 17(2)).

The regulations do not operate in isolation. They form a specific sub-component of a broader matrix of domestic and international laws.

Interaction with the Extradition Act 1988 (Cth)

The Extradition Act 1988 (Cth) is the parent statute. The regulations declare Brazil to be an extradition country under this Act. Regulation 4 explicitly dictates that the Act applies to Brazil "subject to" the Treaty. This means that where the Treaty provides specific timelines, rights, or limitations that differ from the default provisions of the Extradition Act 1988 (Cth), the terms of the Treaty prevail. The procedural path of any Brazilian extradition application in Australia must therefore be read through the dual lenses of the parent Act's administrative machinery and the Treaty's specific modifications.

International Human Rights Law

Article 3(i) of the treaty directly references Article 7 of the International Covenant on Civil and Political Rights (ICCPR), which prohibits torture and cruel, inhuman, or degrading treatment or punishment. This incorporates international human rights standards directly into the domestic extradition assessment, requiring decision-makers to evaluate whether the foreign state's penal processes would violate these standards.

Domestic Criminal Law and Constitutional Law

The operation of Article 2 (Extraditable Offences) requires a comparative analysis of the domestic criminal laws of both Australia (principally state, territory, and federal criminal codes) and Brazil. The dual criminality test is a comparative exercise where the conduct is mapped against the elements of domestic offences. Furthermore, the exclusion of national extradition in Article 5 interacts directly with the constitutional and statutory laws of both nations regarding citizenship rights and domestic judicial jurisdiction over extraterritorial crimes.

Multilateral Conventions

Article 20 of the Treaty preserves all obligations assumed by either country under multilateral conventions. Where a multilateral treaty (such as international conventions on terrorism, aviation security, or narcotics) imposes specific extradition or prosecution duties, those obligations remain unaffected by, and can run parallel to, this bilateral treaty framework.

The Extradition (Federative Republic of Brazil) Regulations 1996 were made on 29 July 1996 and notified in the Commonwealth of Australia Gazette on 5 August 1996 (as recorded in the endnotes). They commenced on 1 September 1996.

+-------------------------------------------------------------------------+
|                          REGULATORY EVOLUTION                           |
+-------------------------------------------------------------------------+
|                                                                         |
|  [Statutory Rules 1988 No. 299]                                         |
|  (Initial bilateral extradition regulations between Australia & Brazil) |
|                                   │                                     |
|                                   ▼                                     |
|                   Repealed by Regulation 5 (1996)                       |
|                                   │                                     |
|                                   ▼                                     |
|  [Statutory Rules 1996 No. 170]                                         |
|  - Made: 29 July 1996                                                   |
|  - Gazetted: 5 August 1996                                              |
|  - Commenced: 1 September 1996                                          |
|  - Incorporates: 1994 Canberra Treaty (in Schedule)                      |
|                                                                         |
+-------------------------------------------------------------------------+

The 1996 regulations replaced the previous bilateral framework established under the Extradition (Brazil) Regulations (Statutory Rules 1988 No. 299), which were formally repealed by Regulation 5. This transition represents an update to the treaty terms signed by the respective governments. The underlying treaty was done at Canberra on 22 August 1994, signed by Gareth Evans (Minister for Foreign Affairs of Australia) and Celso Luiz Nunes Amorim (Minister for External Relations of Brazil).

Because the provided source text represents the historical snapshot of the regulations as enacted in 1996, it does not detail subsequent amendments. Under standard Australian administrative law principles, the schedule containing the treaty text remains static unless a new treaty or amending protocol is signed by both nations and subsequently incorporated via an amending regulation under the Extradition Act 1988 (Cth).

The text of the Extradition (Federative Republic of Brazil) Regulations 1996 and the accompanying treaty schedule do not cite or name any judicial decisions or specific litigation. However, the structural design of the treaty elements points to the types of legal disputes that routinely arise under these regulations.

Extradition proceedings in Australia are highly contested and typically litigated through two primary pathways:

Administrative Review: Challenges to the Attorney-General's decisions to issue a surrender warrant or to accept a request, brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) or section 39B of the Judiciary Act 1903 (Cth).
Magisterial Review: Statutory review of the magistrate's determination regarding whether the person is eligible for surrender under the Extradition Act 1988 (Cth).

Litigation involving these regulations is highly likely to center on the interpretation of Article 2 (whether the "totality of the conduct" satisfies the dual criminality test) and Article 3 (whether an offence is of a "political character" or whether "substantial grounds" exist under Article 3(h) regarding persecution). In the context of Australia-Brazil relations, the non-extradition of nationals under Article 5 is a frequent subject of diplomatic and legal maneuvering. If a Brazilian national commits an offence in Australia and flees to Brazil, the litigation shifted to Brazil's domestic courts under the aut dedere aut judicare (extradite or prosecute) principle established in Article 5(2).

Practitioners dealing with these regulations must navigate several complex and time-sensitive provisions that can significantly alter the outcome of a case.

+------------------------------------------------------------------------+
|                      CRITICAL TREATY TIMELINES                         |
+------------------------------------------------------------------------+
|                                                                        |
|  PROVISIONAL ARREST                                                    |
|  [Day 0: Arrest] ────────────────────────────────────► [Day 60: Limit] |
|                                                        Formal request  |
|                                                        must be received|
|                                                        (Art 11(4))     |
|                                                                        |
|  SURRENDER AND REMOVAL                                                 |
|  [Day 0: Decision] ──────────────────────────► [Day 50: Limit]         |
|                                                Subject must be         |
|                                                removed from territory  |
|                                                (Art 12(4))             |
|                                                                        |
|  UNSCHEDULED TRANSIT LANDING                                           |
|  [Hour 0: Landing] ──────────────► [Hour 96: Limit]                    |
|                                    Formal transit request must         |
|                                    be received (Art 18(7))             |
|                                                                        |
+------------------------------------------------------------------------+

The 60-Day Provisional Arrest Limit

Under Article 11(4), a person arrested under a provisional warrant must be set at liberty if the formal extradition request and supporting Article 7 documents are not presented through the diplomatic channel within 60 days of the arrest. This is a strict statutory window. While a failure to meet this deadline does not prevent subsequent proceedings if the request is received later, it requires the immediate release of the client from custody in the interim.

The 50-Day Removal Window

Once a decision to grant extradition is communicated, Article 12(4) dictates that the requesting country must remove the person from the requested country's territory within 50 days. If the requesting country fails to do so, the requested country may release the person and may refuse extradition for the same offence. Lawyers must monitor this timeline post-decision, as administrative or transport delays by foreign law enforcement can provide grounds for a release application.

The Speciality Rule and the 45-Day/Banishment Exception

The rule of speciality (Article 6(1)) prevents prosecution for prior non-extradited offences unless the person remains in the country for 45 days after being free to leave. However, Article 6(4) contains a significant "gotcha" for Brazilian nationals: the 45-day waiver does not apply if it is construed as banishment, expulsion, or forced removal of a Brazilian national from Brazil. This means the speciality protection for a Brazilian national surrendered to Australia may persist indefinitely if they cannot leave Australia without facing forced removal.

Unscheduled Air Transit Landing (96 Hours)

Under Article 18(6), no transit authorisation is required for air transport if no landing is scheduled. However, under Article 18(7), if an unscheduled landing occurs in the territory of one party, the other party must scramble to furnish a transit request within 96 hours. If they fail to do so, the transit state is no longer obligated to detain the person.

Absolute Refusal Bar Following Refusal

Article 14 establishes that if an extradition request is refused, no subsequent request for the extradition of the same person can be presented on the basis of the same facts. This creates a powerful "one-shot" rule for the requesting state and a critical shield for the defendant.

For legal practitioners, compliance under the regulations requires structured execution of the procedural steps set out in the treaty and the Extradition Act 1988 (Cth).

Step 1: Verification of Diplomatic Transmission and Timelines

First, verify that the request has been communicated strictly through the diplomatic channel as required by Article 7(1). Check the date of any provisional arrest against the 60-day limit in Article 11(4). If the formal request and Article 7 documents were not received by the executive of the requested state within 60 days of the arrest, immediately apply to the court for the release of the client.

Step 2: Audit of Document Authenticity and Translation

Analyze the supporting documents against the formal requirements of Articles 7, 8, and 9:

Confirm that all documents are accompanied by an official translation into English (if requested by Australia) or Portuguese (if requested by Brazil) (Article 8).
Ensure that every document purports to be signed or certified by a Judge, Magistrate, or officer of the requesting state (Article 9(2)(a)).
Verify that each document is sealed with an official or public seal of the Requesting State, a Minister of State, or a government department (Article 9(2)(b)). If these authentication marks are absent, the documents are inadmissible in the extradition proceedings.

Step 3: Conduct a Dual Criminality and Sentence Analysis

Evaluate whether the offences listed in the request meet the criteria under Article 2:

Map the "totality of the conduct" alleged against the statutory elements of offences in the requested jurisdiction to determine if it would constitute an offence punishable by at least one year of imprisonment (Article 2(1) and 2(3)).
If the client is already sentenced, check the sentence details. Under Article 2(2), confirm that at least nine months of the sentence remains to be served. If less than nine months remains, the offence is not extraditable, and the request must be resisted on this basis.

Step 4: Assess Mandatory and Discretionary Refusal Grounds

Systematically analyze the facts against the refusal criteria:

Limitations: Check if the domestic statute of limitations in the requested country has expired for the conduct under Article 3(d).
Double Jeopardy: Determine if the client has been tried, pardoned, or granted amnesty for the same facts in the requested country (Articles 3(b) and 3(c)).
Death Penalty: If the charge carries the death penalty in Brazil or the requesting state, demand that the Attorney-General obtain a formal, written, and binding undertaking that the death penalty will not be imposed or carried out (Article 4(a)).
Humanitarian Grounds: Gather medical, psychological, and personal history evidence to argue discretionary refusal under Article 4(c) if the client's circumstances make extradition incompatible with humanitarian considerations.

Step 5: Post-Surrender Monitoring

If extradition is granted, track the transport arrangements. Ensure that the client is removed within 50 days of the decision (Article 12(4)). If the 50-day window closes without removal, apply for the client to be set at liberty. Ensure that any property seized under Article 17 is catalogued, and assert third-party rights where applicable to secure its return free of charge upon resolution of the proceedings.

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