Extradition (Croatia) Regulations 2004 2004 No. 339
EXPLANATORY STATEMENT
Statutory Rules 2004 No. 339
Issued by the authority of the Minister for Justice and Customs
Extradition Act 1988
Extradition (Republic of Croatia) Repeal Regulations 2004
Extradition (Croatia) Regulations 2004
Section 55 of the Extradition Act 1988 (the Act) provides, in part, that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Section 5 of the Act defines an 'extradition country' to include a country that is declared by the regulations to be an extradition country. Paragraph 11(1)(b) of the Act provides that the regulations may make provision for application of the Act subject to certain limitations, conditions, exceptions or qualifications.
The purpose of the Regulations is to:
• Terminate the application of the Act to Croatia subject to the limitations, conditions, exceptions or qualifications provided in the Extradition (Republic of Croatia) Regulations 2003; and
• re-establish extradition arrangements with Croatia under regulations for that specific purpose, enabling Australia to consider extradition requests received from Croatia under a new extradition arrangement with Croatia.
The Act applies the modern 'no evidence' extradition procedure. Under this procedure countries are not required to present evidence establishing a prima facie case against the person sought.
The arrangements under the repealed Extradition (Republic of Croatia) Regulations 2003 enabled Australia to consider extradition requests from Croatia where the requests complied with the requirements of the Treaty between the United Kingdom and Servia for the Mutual Surrender of Fugitive Criminals done at Belgrade on 6 December 1900 (the Treaty). The Treaty was brought into operation between Australia and Croatia by an exchange of Third Person Notes on 2 and 3 September 1996. A copy of the Treaty was set out in the Extradition (Republic of Croatia) Regulations 2003. The Treaty required Croatia to present evidence sufficient to establish a prima facie case against the wanted person in each extradition request made to Australia. The Extradition (Republic of Croatia) Repeal Regulations 2004 ended this requirement, and the Extradition (Croatia) Regulations 2004 re-established extradition arrangements with Croatia under regulations made without reference to the Treaty, enabling Australia to consider extradition requests received from Croatia under the 'no evidence' extradition procedure.
Extradition to Croatia under the Extradition (Croatia) Regulations 2004 operates in accordance with the Act, subject to a modification, namely that an arrested person may apply to a magistrate for release after 60 days if a request for his or her extradition has not been received. The standard period under the Act is 45 days. Modification to apply a 60 day period is common and has been included, for example, in extradition agreements with Brazil, Chile, Hungary, Mexico, Paraguay, South Korea and the United States.
Extradition under the Regulations is subject to the various safeguards set out in the Act. For example, extradition would not be permitted where the fugitive was sought for or in connection with her or his race, religion, nationality or political opinions or would be tried, sentenced or detained for a political or military offence. In addition, the Attorney-General would retain a broad discretion to refuse an extradition request by Croatia in any particular case.
This action is consistent with the provisions of the Act. Similar 'non-treaty Regulations' currently provide that the Act applies to Denmark, Estonia, Iceland, Japan, Latvia, the Marshall Islands, Thailand, Cambodia, Lebanon, Jordan, the United Kingdom and Canada.
The Regulations commenced on the date of their notification in the Gazette.
Overview
The Extradition (Croatia) Regulations 2004 (Statutory Rules 2004 No. 339) were enacted by the Australian Government under the authority of the Extradition Act 1988. These regulations were introduced to address the need to update and modernise extradition arrangements with Croatia. The Extradition Act 1988 allows the Governor-General to make regulations necessary for the implementation of the Act, and section 55 specifically empowers the creation of these regulations. The objective of the Extradition (Croatia) Regulations 2004 was to terminate the outdated extradition arrangements governed by the Treaty between the United Kingdom and Servia for the Mutual Surrender of Fugitive Criminals, and to re-establish new extradition arrangements with Croatia under the contemporary 'no evidence' extradition procedure. This procedure allows Australia to consider extradition requests from Croatia without the necessity for the presenting country to establish a prima facie case against the fugitive, aligning Croatia's extradition practices with those of other nations with which Australia has extradition agreements.
Scope and Application
The Extradition (Croatia) Regulations 2004 apply to the process of extraditing individuals from Australia to Croatia for the purpose of facing criminal charges, as outlined in the Extradition Act 1988. These Regulations are relevant to any person who is subject to an extradition request from Croatia, and to the entities and industries involved in the extradition process, including the Australian and Croatian governments, law enforcement agencies, and legal representatives of the individuals involved. The Regulations cover the conduct and transactions necessary for the extradition process, such as the transmission and receipt of extradition requests, the arrest and detention of individuals, and the judicial review of extradition decisions. Geographically, the Regulations have a national reach within Australia and are subject to the broader jurisdictional framework established by the Extradition Act 1988. The Act applies to all states and territories within Australia, ensuring a consistent approach to extradition across the country. The Regulations also include provisions that can be extended or restricted through subordinate instruments, allowing for flexibility in the application of the Act to changing circumstances or new agreements with other countries. The Regulations do not apply to Croatia in the same manner as they would to countries with which Australia has a formal extradition treaty, reflecting the unique historical and legal context of the extradition relationship between Australia and Croatia.
Key Provisions
The Extradition (Croatia) Regulations 2004 (Section 55 of the Extradition Act 1988) lay out the specific arrangements for extradition between Australia and Croatia, establishing the framework under which such extradition requests will be handled. The key provisions of these Regulations include the re-establishment of extradition arrangements with Croatia under the modern 'no evidence' extradition procedure, which means that Croatia is not required to present evidence establishing a prima facie case against the person sought (Section 5). Additionally, the Regulations modify the standard 45-day period for an arrested person to apply for release if an extradition request has not been received, extending it to 60 days (Section 5). These provisions are necessary for carrying out or giving effect to the Act and are consistent with similar arrangements in place with other countries.
The obligations imposed by the Extradition (Croatia) Regulations 2004 on the parties involved primarily revolve around the handling of extradition requests in accordance with the Act. Australia, as the requesting country, must ensure that any extradition request from Croatia complies with the safeguards outlined in the Act, such as the prohibition on extraditing an individual for reasons related to their race, religion, nationality, or political opinions (Section 11(1)(b)). Croatia, as the requested country, must submit extradition requests in line with the 'no evidence' procedure and within the stipulated timelines, including the extended 60-day period for the arrested person to apply for release if no request is received (Section 5). Both countries must also adhere to the discretionary powers of the Attorney-General in Australia, who can refuse an extradition request in specific cases (Section 11(1)(b)).
Breach of the obligations or requirements under the Extradition (Croatia) Regulations 2004 can result in various civil and criminal consequences. While specific penalties are not detailed in the Regulations themselves, breaches of the Extradition Act 1988 can lead to significant legal repercussions. For instance, failure to comply with the extradition process could result in legal challenges and potential criminal charges under the Act. Additionally, any actions that contravene the safeguards, such as extraditing an individual for reasons of their race or political beliefs, could be subject to judicial review and may result in the extradition request being denied. The Act provides for both civil and criminal penalties, with the exact nature and severity of these penalties depending on the specific breach and the jurisdiction involved.