Extradition (Serbia) Regulations 2009

Administered by Attorney-General's Department

Legislation au F2009L03626 Regulations In force Legislative Instrument

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EXPLANATORY STATEMENT

Select Legislative Instrument 2009 No. 265

Issued by the authority of the Minister for Home Affairs

Extradition Act 1988

Extradition (Serbia) 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 Serbia to enable Australia to consider extradition requests received from Serbia.  Serbia 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 Serbia 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 Serbia, 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 Serbia 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 (Serbia) Regulations 2009

 

 

Regulation 1 – Name of Regulations

 

This regulation provides that the title of the Regulations is the Extradition (Serbia) 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 Serbia is an extradition country

 

This regulation declares Serbia to be an extradition country.

 

Regulation 5 – Application of Act

 

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

Overview

The Extradition (Serbia) Regulations 2009 were introduced to address the unclear legal status of extradition between Australia and Serbia. This legislation was enacted under the authority of the Minister for Home Affairs, as part of the Extradition Act 1988. The primary objective of these regulations is to establish clear extradition arrangements with Serbia, allowing Australia to consider extradition requests from this country. Before these regulations, the extradition relationship between Australia and Serbia was ambiguous due to the unclear status of the inherited treaty from the United Kingdom and the limitations of the treaty in addressing certain offences. The regulations clarify that Serbia is an extradition country and apply the Extradition Act 1988 to extradition requests from Serbia, subject to specific modifications such as extending the period before a person arrested may be released if an extradition request has not been received from 45 days to 60 days.

Scope and Application

The Extradition (Serbia) Regulations 2009, made under the Extradition Act 1988, establish clear extradition arrangements between Australia and Serbia, enabling Australia to consider extradition requests from Serbia. The Act applies to any person who is in Australia and is wanted for extradition to Serbia for an offence under the criminal law of Serbia. The Regulations clarify the extradition relationship between Australia and Serbia, which was previously unclear due to the status of a treaty inherited from the United Kingdom. The Act applies to the Commonwealth of Australia and its territories, with the Regulations extending this application to Serbia. The Regulations modify the period for which a person may be detained before being extradited from 45 days to 60 days, a modification that is consistent with the approach taken in other similar regulations. Extradition requests are subject to various safeguards, including that extradition will not be permitted for offences related to race, religion, nationality, or political opinions, or for political or military offences, and must be refused if the offence attracts the death penalty or if there is a risk of torture. The Attorney-General retains a broad discretion to refuse any extradition request.

Key Provisions

The Extradition (Serbia) Regulations 2009, made under Section 55 of the Extradition Act 1988, establish Serbia as an extradition country and provide the legal framework for handling extradition requests between Australia and Serbia. Regulation 4 declares Serbia an extradition country (Regulation 4), while Regulation 5 applies the Extradition Act 1988 to Serbia with a modified time frame for the release of an arrested person pending extradition, extending from 45 to 60 days (Regulation 5). This modification is in line with similar adjustments made for other countries like Canada, Croatia, and Slovenia, where the period is also extended to 60 days. Under these Regulations, certain obligations are imposed on both Australian and Serbian authorities. Australian authorities must consider extradition requests from Serbia in accordance with the Extradition Act 1988, with the specific modification of the 60-day period for the release of an arrested individual if the request is not received (Section 17(2)(a)). Serbian authorities, on the other hand, must adhere to the evidentiary standards set out in the Act, which require them to provide documentation supporting the extradition request without necessarily establishing a prima facie case that the person committed the offence (Section 17(2)(a)). Furthermore, the Act includes various safeguards, such as prohibiting extradition for reasons related to race, religion, nationality, political opinions, or for political or military offences, and requiring refusal if the offence attracts the death penalty or if the individual could be subjected to torture (Sections 6 and 7). Failure to comply with the provisions of these Regulations can lead to serious consequences. Under the Extradition Act 1988, breaches of the Act may result in criminal charges for those involved in facilitating unlawful extradition, with penalties including fines and imprisonment. Specifically, Section 27 of the Act provides for penalties of up to 2 years imprisonment or a fine of up to 12,000 penalty units, or both, for various offences related to extradition. Additionally, any attempt to circumvent the safeguards or provide false documentation could lead to criminal charges under broader Australian criminal law provisions, with penalties varying depending on the nature and severity of the offence. Civil liabilities may also arise from breaches of the Act, potentially leading to compensation claims for wrongful arrest or detention.

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Area of Law
International Law
Instrument
Regulation
Concepts
Definitions & Interpretation
Offence Provisions
Extradition

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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.