EXPLANATORY STATEMENT

 

 

Issued by the authority of the Minister for Justice and Customs

 

Select Legislative Instrument 2005 No. 3

 

Extradition Act 1988

 

Extradition (Lithuania) Regulations 2005

 

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 Lithuania under regulations for that specific purpose, enabling Australia to consider extradition requests received from Lithuania.  Australia did not have an extradition relationship with Lithuania 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.

 

Extradition to Lithuania 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 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, 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 Lithuania 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, Denmark, Estonia, Iceland, Japan, Jordan, Kyrgyzstan, Latvia, Lebanon, the Marshall Islands, Slovenia, Thailand and the United Kingdom.

 

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.