Extradition (Republic of Croatia) Repeal Regulations 2004 2004 No. 340
EXPLANATORY STATEMENT
Statutory Rules 2004 No. 340
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The arrangements under the repealed Extradition (Republic of Croatia) Regulations 2003 enabled Australia to consider extradition requests from Croatia where the requests complied with the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 (Republic of Croatia) Repeal Regulations 2004 were enacted to address the need to update and streamline the extradition process between Australia and Croatia. This legislative instrument, issued under the authority of the Minister for Justice and Customs, operates in conjunction with the Extradition Act 1988. The primary objective of these Regulations is to terminate the previous extradition arrangements governed by the Extradition (Republic of Croatia) Regulations 2003, which were based on the Treaty between the United Kingdom and Servia for the Mutual Surrender of Fugitive Criminals of 1900, and to establish new extradition arrangements under the Extradition Act 1988. This transition allows Australia to handle extradition requests from Croatia using the modern 'no evidence' extradition procedure, aligning with current international practices and ensuring a more efficient extradition process. The Regulations also include specific provisions such as a 60-day period for an arrested person to apply for release if an extradition request has not been received, reflecting a standard modification found in other extradition agreements.
Scope and Application
The Extradition (Republic of Croatia) Repeal Regulations 2004 applies to the termination of the Extradition Act 1988's application to Croatia, effectively repealing the previous extradition arrangements under the Extradition (Republic of Croatia) Regulations 2003. It encompasses the re-establishment of extradition arrangements with Croatia through the Extradition (Croatia) Regulations 2004, enabling Australia to consider extradition requests from Croatia under a new extradition arrangement. These regulations are made under the authority of the Extradition Act 1988 and are subject to the limitations, conditions, exceptions, and qualifications outlined in the Act. The Act applies to the Commonwealth of Australia and pertains to individuals who are subject to extradition requests from Croatia, as well as the entities and authorities involved in the extradition process. The geographic reach of the Act is national, applying to the entire Australian jurisdiction. The Extradition (Republic of Croatia) Repeal Regulations 2004 and the Extradition (Croatia) Regulations 2004 extend the application of the Act through subordinate instruments, modifying the extradition process to align with the 'no evidence' procedure.
Key Provisions
The Extradition (Republic of Croatia) Repeal Regulations 2004 (No. 340) focus on modifying Australia's extradition procedures with Croatia. According to section 55 of the Extradition Act 1988 (the Act), these regulations provide the necessary framework for the application of the Act to Croatia, without inconsistency. Section 5 of the Act defines an 'extradition country', which includes any country declared as such by regulations. These regulations serve to terminate the application of the Act to Croatia under the Extradition (Republic of Croatia) Regulations 2003, and re-establish the extradition arrangements with Croatia under new regulations that align with Australia's 'no evidence' extradition procedure. This new procedure does not require countries to present evidence establishing a prima facie case against the person sought.
The obligations under these Regulations require Australian authorities to consider extradition requests from Croatia under the new 'no evidence' procedure, as outlined in the Extradition (Croatia) Regulations 2004. This approach is consistent with the Act's safeguards, which include prohibitions against extraditing individuals for reasons related to their race, religion, nationality, or political opinions, as well as restrictions on extraditing individuals for political or military offences. The Attorney-General retains broad discretion to refuse any extradition request by Croatia in specific cases. The regulations also modify the period for release applications by arrested persons from 45 days, as stipulated in the Act, to 60 days if a request for their extradition has not been received.
Breaches of the provisions outlined in these Regulations could result in various consequences, depending on the nature and severity of the infraction. The Act includes both civil and criminal penalties for non-compliance, with maximum penalties that vary according to the specific offence. For instance, unauthorised disclosure of information obtained under the Act could lead to criminal charges, while failure to comply with an order or direction could result in civil penalties. The Attorney-General's discretion to refuse an extradition request also serves as a safeguard, ensuring that any requests that do not meet the Act's criteria are not acted upon. These Regulations are consistent with similar 'non-treaty Regulations' that currently apply to various countries, including Denmark, Estonia, Iceland, Japan, Latvia, the Marshall Islands, Thailand, Cambodia, Lebanon, Jordan, the United Kingdom, and Canada.