EXPLANATORY STATEMENT
Select Legislative Instrument 2007 No. 248
Issued by the authority of the Minister for Justice and Customs
Extradition Act 1988
Extradition (Slovakia) Regulations 2007
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 Slovakia under regulations for that specific purpose, enabling Australia to consider extradition requests received from Slovakia. Australia did not have an extradition relationship with Slovakia prior to the Regulations being made.
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 in the extradition request.
Extradition to Slovakia under the Regulations operates in accordance with the Act, subject to a modification, namely that following the provisional arrest of a person, the 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 in extradition agreements with Brazil, Canada, Chile, Hungary, Lithuania, Mexico, Paraguay, South Korea, the United Kingdom 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 Slovakia 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 Cambodia, Canada, Croatia, Commonwealth countries, Denmark, Estonia, Fiji, Iceland, Japan, Jordan, Kyrgyzstan, Latvia, Lebanon, Lithuania, Marshall Islands, Slovenia, Thailand and the United Kingdom.
The Department of Foreign Affairs and Trade, the Australian Federal Police and the Commonwealth Director of Public Prosecutions were consulted concerning the proposed Regulations. All agencies supported the proposed Regulations being made, except the Commonwealth Director of Public Prosecutions which had no comment on the proposal.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulations commenced on the day after their registration on the Federal Register of Legislative Instruments.
Overview
The Extradition (Slovakia) Regulations 2007 were enacted under Section 55 of the Extradition Act 1988 to formalise extradition arrangements between Australia and Slovakia, addressing the prior absence of such a relationship. These regulations were introduced to ensure that Australia could consider and respond to extradition requests from Slovakia in line with the modern 'no evidence' extradition procedure outlined in the Act. This procedure simplifies the extradition process by not requiring the presenting country to establish a prima facie case against the person sought. The policy objective of these regulations is to align Slovakia with other countries, such as Brazil, Canada, and the United Kingdom, that also have modified extradition periods of 60 days following provisional arrest, as opposed to the standard 45 days. These regulations are subject to various safeguards, including the prohibition of extradition for reasons related to race, religion, nationality, or political opinions, and the Attorney-General's discretion to refuse any extradition request.
Scope and Application
The Extradition (Slovakia) Regulations 2007, which implement the Extradition Act 1988, establish the legal framework for extradition between Australia and Slovakia. These Regulations are applicable to individuals who are subject to an extradition request from Slovakia and are currently present in Australia. The Act, which applies nationally across Australia, outlines the procedures and conditions under which extradition can be granted, including the application of the 'no evidence' extradition procedure, which allows for extradition without requiring evidence of a prima facie case. This procedure is common in extradition arrangements with various other countries and is subject to specific safeguards and conditions, including a 60-day provisional arrest period before a request for extradition must be received, which is an extension from the standard 45-day period under the Act. Extradition requests are subject to certain limitations, such as the prohibition of extradition for offences based on race, religion, nationality, or political opinions, and the Attorney-General retains discretion to refuse requests in specific cases. The Regulations align with the broader framework established by the Extradition Act and are supported by consultations with relevant federal agencies, ensuring that the extradition process adheres to both Australian law and international obligations.
Key Provisions
The Extradition (Slovakia) Regulations 2007, under section 55 of the Extradition Act 1988 (the Act), establish the framework for extradition between Australia and Slovakia. Section 5 of the Act defines an 'extradition country', and these Regulations declare Slovakia as such, thereby enabling Australia to consider extradition requests from Slovakia (section 5(1)(b)). This regulation marks the first formal extradition arrangement between the two countries. The Act applies the modern 'no evidence' extradition procedure, meaning that Slovakia does not need to present evidence establishing a prima facie case against the person sought in the extradition request. However, a modification allows for the arrested person to apply to a magistrate for release after 60 days if an extradition request has not been received, extending the standard period of 45 days set out in the Act (section 11(1)(b)).
The obligations imposed by these Regulations require both countries to adhere to the safeguards set out in the Extradition Act 1988. For instance, extradition would not be permitted if the fugitive was sought for or in connection with their race, religion, nationality, or political opinions, or if they would be tried, sentenced, or detained for a political or military offence. The Attorney-General retains broad discretion to refuse an extradition request by Slovakia in any particular case, ensuring that each request is assessed on its merits. Additionally, the Regulations ensure that the process complies with the existing extradition framework, which includes provisions for provisional arrest, judicial review, and various other procedural safeguards.
Failure to comply with the provisions of these Regulations can result in significant legal consequences. Under the Extradition Act 1988, any person who obstructs or interferes with the extradition process may be subject to criminal penalties, including fines and imprisonment. Specifically, section 104 of the Act outlines the penalties for such offences, which can include a maximum penalty of five years imprisonment or a fine of up to 60 penalty units, or both, depending on the nature and severity of the offence. Additionally, civil consequences may arise for any party that fails to comply with the obligations imposed by these Regulations, potentially leading to legal disputes and further legal ramifications.