EXPLANATORY STATEMENT
Statutory Rules 2004 No. 368
Issued by the authority of the Minister for Justice and Customs
Extradition Act 1988
Extradition (Kyrgyzstan) 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 establish extradition arrangements with Kyrgyzstan under regulations for that specific purpose, enabling Australia to consider extradition requests received from Kyrgyzstan. Australia did not have a prior extradition relationship with Kyrgyzstan.
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.
Extradition to Kyrgyzstan under the Regulations operates in accordance with the Act, subject to a modification, namely that an arrested person may apply to a magistrate for release after 90 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 in extradition agreements with Brazil, Chile, Hungary, Mexico, Paraguay, South Korea and the United States. This is the first occasion on which the 90 day period has been established for an extradition country. It is considered that a 90 day period in this instance is necessary in order to provide Kyrgyzstan with a sufficient period in which to prepare and lodge an extradition request, as Kyrgyzstan has no experience in making extradition requests to Australia and has very limited bureaucratic and judicial resources.
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 may be subject to the death penalty or torture, or where the fugitive was sought for or in connection with her or his race, religion, nationality or political opinions. In addition, the Attorney-General would retain a broad discretion to refuse an extradition request by Kyrgyzstan 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 (Kyrgyzstan) Regulations 2004 were enacted to establish formal extradition arrangements between Australia and Kyrgyzstan, facilitating the consideration of extradition requests from Kyrgyzstan under the Extradition Act 1988. Prior to the establishment of these regulations, Australia did not have an extradition relationship with Kyrgyzstan, necessitating the creation of a legislative framework to enable the consideration of such requests. The objective of these regulations is to allow Australia to process extradition requests from Kyrgyzstan in accordance with the Act, while incorporating a modified time frame for the release of arrested individuals, extending the standard period from 45 to 90 days to accommodate Kyrgyzstan's limited experience and bureaucratic resources in making extradition requests to Australia. These regulations are consistent with the policy objectives of the Extradition Act 1988, which aims to provide a robust yet fair extradition procedure, subject to various safeguards and discretionary powers of the Attorney-General.
Scope and Application
The Extradition (Kyrgyzstan) Regulations 2004, made under Section 55 of the Extradition Act 1988, establish the legal framework for extradition between Australia and Kyrgyzstan, a country with which Australia previously had no formal extradition relationship. The Regulations are designed to facilitate the consideration of extradition requests from Kyrgyzstan, ensuring that the process adheres to the principles and safeguards outlined in the Extradition Act. These include the modern 'no evidence' extradition procedure, under which Kyrgyzstan is not required to present evidence establishing a prima facie case against the person sought. One notable modification in the Regulations is the extension of the period during which an arrested person may apply for release if an extradition request has not been received from Kyrgyzstan, from the standard 45 days under the Act to 90 days, reflecting Kyrgyzstan's limited experience and resources in making extradition requests to Australia. Extradition under the Regulations is subject to various safeguards, such as the prohibition of extradition where the fugitive may be subject to the death penalty or torture, or where the request is based on the fugitive's race, religion, nationality, or political opinions. Additionally, the Attorney-General retains a broad discretion to refuse an extradition request in any particular case. These Regulations align with the Act and are consistent with similar non-treaty Regulations that currently apply to various other countries, including Denmark, Estonia, Iceland, Japan, Latvia, the Marshall Islands, Thailand, Cambodia, Lebanon, Jordan, the United Kingdom, and Canada.
Key Provisions
The Extradition (Kyrgyzstan) Regulations 2004 establish the legal framework for extradition between Australia and Kyrgyzstan under the Extradition Act 1988. The primary operative section, Section 55 of the Act, allows the Governor-General to create regulations that are not inconsistent with the Act, necessary for its implementation, or required to be prescribed by the Act. The Regulations specifically declare Kyrgyzstan as an extradition country (Section 5) and set forth the conditions under which the Act applies to extradition requests from Kyrgyzstan (Section 11(1)(b)).
Under these Regulations, the extradition process between Australia and Kyrgyzstan adheres to the modern ‘no evidence’ procedure outlined in the Act. This means that Kyrgyzstan is not required to provide evidence establishing a prima facie case against the person sought for extradition. However, a notable modification has been made to the standard 45-day period within which an arrested person may apply for release if an extradition request is not received. In the case of Kyrgyzstan, this period has been extended to 90 days, a first for any extradition country. This adjustment is intended to accommodate Kyrgyzstan's limited experience in making extradition requests to Australia and their constrained bureaucratic and judicial resources.
The Regulations impose several obligations and requirements on the parties involved. The primary obligation is that extradition will not be granted if the fugitive is likely to be subjected to the death penalty or torture, or if the request pertains to their race, religion, nationality, or political opinions. Additionally, the Attorney-General retains broad discretion to refuse any extradition request from Kyrgyzstan in specific cases. These safeguards are consistent with the various protections stipulated in the Extradition Act.
Failure to comply with the provisions of the Regulations can result in various consequences. While the specific penalties for breaches are not detailed in the text, the Act generally allows for both civil and criminal penalties for non-compliance. These may include fines, imprisonment, or other legal actions, depending on the nature and severity of the breach. The maximum penalties would be determined in accordance with the relevant sections of the Extradition Act and other applicable laws.