Commonwealth Numbered Regulations - Explanatory Statements

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Statutory Rules 2003 No. 34

Issued by the authority of the Minister for Justice and Customs

Extradition Act 1988

Extradition (Kingdom of Cambodia) Regulations 2003

Section 55 of the Extradition Act 1988 (the Act) provides that the Governor-General may make Regulations 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. The definition of 'extradition country' in paragraph 5(a) of the Act provides that a country may be declared by the Regulations to be an extradition country. Paragraph 11(1)(b) provides that the Regulations may make provision for application of the Act subject to limitations, conditions, exceptions or qualifications.

The Regulations provide that the Kingdom of Cambodia (Cambodia) is an extradition country, enabling Australia to consider an extradition request received from Cambodia.

Extradition under the Regulations operates in accordance with the Act, subject to a number of modifications.

The meaning of 'extradition offence' has been modified so that under the Regulations, Australia only has an extradition relationship with Cambodia in relation to an offence that is a child sex offence. A 'child sex offence' is also defined in the Regulations.

The Regulations qualify paragraph 19(3)(a) by providing that where a fugitive has been convicted in Cambodia of an extradition offence in his or her absence, a request for extradition must be accompanied by a judicial document, or other document attaching a judgement or copy of a judgement authorising apprehension of the person. This type of provision is contained in a number of Australia's existing extradition treaties, including agreements with Belgium and France.

For paragraph 19(2)(b) of the Act, a condition operates providing that additional documentation must be provided where a person has been convicted of an extradition offence in his or her absence. In such cases, an extradition request must be accompanied by documents containing evidence which establishes that it was reasonable for the person to know about the criminal proceedings brought against the person and the person chose not to attend, or that the person has the right to appeal against the conviction in the extradition country.

The operation of paragraph 17(2)(a) of the Act is also modified by the Regulations whereby a person arrested 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, the United States, Venezuela and Jordan.

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 under the Regulations is subject to the various safeguards set out in the Act. For example, extradition is not 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. Extradition must be refused where the fugitive could be liable to the death penalty, unless an undertaking is given that the death penalty will not be imposed or, if imposed, will not be carried out. In addition, the Attorney-General retains a broad discretion to refuse an extradition request by Cambodia 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 and Jordan.

The Regulations provide that the Regulations will cease to have effect at the end of twelve months from the date of their commencement.

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