Extradition (Montenegro) Regulations 2009

Administered by Attorney-General's Department

Legislation au F2009L03625 Regulations In force Legislative Instrument

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EXPLANATORY STATEMENT

Select Legislative Instrument 2009 No. 261

Issued by the authority of the Minister for Home Affairs

Extradition Act 1988

Extradition (Montenegro) Regulations 2009

 

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 regulations to be an extradition country.  Paragraph 11(1)(b) of the Act provides that regulations may make provision for the application of the Act in relation to a specified extradition country subject to certain limitations, conditions, exceptions or qualifications.  Subsection 11(2) states that this reference to limitations, conditions, exceptions or qualifications includes modification to the effect that a number of days greater or lesser than the 45 days referred to in paragraph 17(2)(a) applies for the purposes of that paragraph.

The purpose of the Regulations is to establish clear extradition arrangements with Montenegro to enable Australia to consider extradition requests received from Montenegro.  Montenegro is able to grant extradition to Australia in the absence of a treaty.

Before the Regulations were made, Australia’s ability to consider extradition requests from Montenegro was unclear.  Australia’s extradition relationship with the former Socialist Federal Republic of Yugoslavia was governed by a treaty inherited from the United Kingdom.  The status of this treaty between Australia and the successor states to the former Yugoslavia, including Montenegro, is unclear both at international and domestic law.  Moreover, the treaty only provides for extradition for certain listed offences and would not always provide a basis for extradition for other offences such as drug trafficking or war crimes offences.

Extradition requests from Montenegro under the Regulations are considered in accordance with the Act, subject to the modification of paragraph 17(2)(a) whereby a person arrested may be released by a magistrate 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 regulations applying the Act to Canada, Croatia and Slovenia.

The Act applies the modern ‘no evidence’ standard for documentation provided in support of any extradition request.  In accordance with this evidentiary standard, countries are not required to provide evidence sufficient to establish a prima facie case that the person committed the offence.

Extradition requests made pursuant to the Regulations are subject to the various safeguards set out in the Act.  For example, extradition will not be permitted where the person is sought for or in connection with his or her race, religion, nationality or political opinions or is to be tried, sentenced or detained for a political or military offence.  Extradition must be refused where the offence for which the person is requested attracts the death penalty, unless an undertaking is given that the death penalty will not be imposed or, if imposed, will not be carried out.  Extradition must also be refused where the person could be subjected to torture.  In addition, the Attorney-General retains a broad discretion to refuse any extradition request.

The Regulations commenced on the day after they were registered on the Federal Register of Legislative Instruments.

Consultation was undertaken with the Department of Foreign Affairs and Trade, who supported the making of the Regulations.  Further consultation was unnecessary for this legislative instrument as this instrument does not substantially alter existing arrangements and has no direct or indirect effect on business.

Detail of the Regulations is set out in the Attachment.

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ATTACHMENT


 

Details of the Extradition (Montenegro) Regulations 2009

 

 

Regulation 1 – Name of Regulations

 

This regulation provides that the title of the Regulations is the Extradition (Montenegro) Regulations 2009.

 

Regulation 2 – Commencement

 

This regulation provides that the Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.

 

Regulation 3 – Definition

 

This regulation defines terms used in the Regulations.

 

Regulation 4 – Declaration that Montenegro is an extradition country

 

This regulation declares Montenegro to be an extradition country.

 

Regulation 5 – Application of Act

 

This regulation provides that the Extradition Act 1988 applies to Montenegro subject to the modification of the period nominated in paragraph 17(2)(a) from 45 days to 60 days.

Overview

The Extradition (Montenegro) Regulations 2009 were enacted to address the gap in Australia's extradition arrangements with Montenegro, ensuring clarity and facilitating the consideration of extradition requests from this country. This legislative instrument was introduced under the authority of the Extradition Act 1988, which empowers the Governor-General to make regulations not inconsistent with the Act. Montenegro was declared an extradition country, and the Act was applied to this jurisdiction with a specific modification to the detention period, extending it from 45 days to 60 days, in alignment with similar arrangements with other countries. Prior to these Regulations, the legal basis for considering extradition requests from Montenegro was uncertain, partly due to the unclear status of the former extradition treaty between Australia and the Socialist Federal Republic of Yugoslavia, of which Montenegro is a successor state. The Regulations ensure that extradition requests from Montenegro are processed under the modern 'no evidence' standard, with robust safeguards against extradition for political offences, potential imposition of the death penalty, or risk of torture, while also allowing the Attorney-General a broad discretion to refuse any request.

Scope and Application

The Extradition (Montenegro) Regulations 2009 are a legislative instrument that clarifies the extradition arrangements between Australia and Montenegro, ensuring that Australia can consider extradition requests from Montenegro. These Regulations apply to any individual who is the subject of an extradition request from Montenegro under the Extradition Act 1988, and to the conduct and transactions related to the extradition process. The Regulations have a national jurisdictional reach, as they are made under the authority of the Commonwealth of Australia. The Act applies to any person who is in Australia and who is the subject of an extradition request from Montenegro, and to any entity or transaction that is directly related to the extradition process. The Act also extends to any conduct that occurs in Australia that is relevant to the extradition request. The Regulations provide an exemption from the standard 45-day period for the release of an arrested person if a request for their extradition has not been received, by extending this period to 60 days. The Regulations do not substantially alter existing arrangements and have no direct or indirect effect on business. The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

Key Provisions

The Extradition (Montenegro) Regulations 2009 (F2009L03625) are a legislative instrument under the Extradition Act 1988 (the Act), which aims to establish clear extradition arrangements between Australia and Montenegro. The main operative sections of these Regulations include the declaration that Montenegro is an extradition country (Regulation 4) and the application of the Extradition Act 1988 to Montenegro, with a modification to the period for which a person may be detained before an extradition request is received (Regulation 5). These sections are essential for setting the legal framework within which extradition requests from Montenegro are processed. Under the Extradition Act 1988, parties and entities are subject to specific obligations and requirements. The Regulations require that extradition requests from Montenegro are considered in accordance with the Act, including the evidentiary standard where the requested country does not need to provide evidence sufficient to establish a prima facie case. Additionally, the Act imposes various safeguards, such as refusing extradition if the person is sought for reasons related to their race, religion, nationality, or political opinions, or if they are to be tried for a political or military offence. Extradition is also refused if the offence attracts the death penalty or if the person could be subjected to torture. Furthermore, the Attorney-General retains a broad discretion to refuse any extradition request. Breaches of the provisions under the Extradition Act 1988 and the Extradition (Montenegro) Regulations 2009 can lead to both civil and criminal consequences. While the specific penalties for non-compliance are not detailed in the explanatory statement, breaches of extradition laws generally attract severe penalties under Australian law. These may include fines and imprisonment for officials who fail to comply with their duties or for individuals who obstruct the extradition process. The exact penalties depend on the nature and severity of the breach, but they underscore the importance of adhering to the established legal framework.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.