Extradition (Physical Protection of Nuclear Material) Amendment Regulations 2007 (No. 1)

Administered by Attorney-General's Department

Legislation au F2007L03552 Regulations Not in force Legislative Instrument

Legislation content

 EXPLANATORY STATEMENT

 

 

Select Legislative Instrument 2007 No. 269   

 

Issued by the authority of the Minister for Justice and Customs

 

Extradition Act 1988

 

Extradition (Physical Protection of Nuclear Material) Amendment Regulations 2007 (No. 1 )

 

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. 

 

The Act makes provision for the extradition of persons from Australia to extradition countries, and facilitates the making of requests for extradition by Australia to other countries.  The Act also enables Australia to carry out its obligations under extradition treaties.  Extradition from Australia can only take place with an extradition country, or with New Zealand, under the procedures set down in the Act.  Section 5 of the Act provides that an ‘extradition country’ is any country (other than New Zealand) that is declared by the regulations to be an extradition country. 

 

Subsection 11(1A) of the Act provides that the regulations may provide that the Act applies in relation to a specified extradition country subject to the limitations, conditions, exceptions or qualifications as are necessary to give effect to a multilateral extradition treaty in relation to the country.  Subsection 11(1C) provides that this may be achieved by applying the Act to the country subject to the treaty.

 

The Regulations amend the Extradition (Physical Protection of Nuclear Material) Regulations (the Principal Regulations) which currently implement the Convention on the Physical Protection of Nuclear Material (the Convention), to which Australia is a party to:
 

  • update the list of countries to which the Act applies subject to the Convention to include all countries that are currently States Parties to the Convention; and
  • reflect recent changes to the Convention relating to political offences.

 

 

The Regulations replace the list of countries to which the Act applies subject to the Convention to include all countries that are currently States Parties to the Convention, by adding the following countries: Cape Verde, Comoros, Montenegro, New Zealand, Nigeria, Palau and Yemen. 

 

The Convention has been amended to include a new Article 11A which provides that the offences in Article 7 of the Convention should not be considered political offences for the purposes of extradition or mutual assistance.  Article 7 of the Convention lists those acts relating to the physical protection of nuclear material which the Convention requires States Parties to make offences under their domestic law.

 

The Regulations implement this change by stating that an offence mentioned in Article 7 of the Convention is not a political offence for the purposes of section 5 the Act.  Section 5 of the Act defines ‘political offence’ and lists offences which are not political offences for the purposes of the Act.  The definition of political offence in the Act extends to the Mutual Assistance in Criminal Matters Act 1987. 

 

Extradition with countries listed in the Regulations for offences under the Convention operates in accordance with the Act.  The Act applies a modern ‘no evidence’ extradition procedure.  The term ‘no evidence’ does not mean no information.  Rather, it means that the information required for extradition does not need to include actual evidence of the alleged offence (for example, sworn affidavits).

 

Extradition under the Principal Regulations is subject to the various safeguards set out in the Act.  For example, extradition would not be permitted where the fugitive 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 would also 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 a country.

 

The Regulations commence in the following manner:

 

  • regulations 1 to 3 and Schedule 1 commence on the day after they are registered on the Federal Register of Legislative Instruments, and
  • Schedule 2 commences on the day on which the amendments to the Convention entered into force for Australia. 

 

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

Details of the Regulations are as follows:

Regulation 1 names the Regulations.

Regulation 2 provides for regulations 1 to 3 and Schedule 1 to commence on the day after they are registered and Schedule 2 to commence on the day on which the amendments to the Convention enter into force for Australia. 

Regulation 3 refers to the Schedules to the Regulations.

Schedule 1 lists extradition countries to which the Act applies subject to the Convention.

Schedule 2 defines terms in the Regulations and declares that the offences in Article 7 of the Convention should not be considered political offences for the purposes of the Act. 

 

 

 

Overview

The Extradition (Physical Protection of Nuclear Material) Amendment Regulations 2007 (No. 1) were enacted to update and refine the existing extradition framework under the Extradition Act 1988, ensuring it aligns with the Convention on the Physical Protection of Nuclear Material. These Regulations were introduced to address the need for Australia to meet its international obligations under the Convention, which requires States Parties to establish extradition provisions for specified offences related to the physical protection of nuclear material. The Regulations were issued by the authority of the Minister for Justice and Customs, aiming to provide a modern and comprehensive approach to extradition in line with international treaties. The primary objective of these Regulations is to reflect recent amendments to the Convention, including the exclusion of certain offences from the political offence exception under the Extradition Act 1988. By updating the list of countries to which the Act applies subject to the Convention and incorporating the new Article 11A, these Regulations ensure that Australia's extradition practices are consistent with global standards for the protection of nuclear material. This amendment is crucial for maintaining the integrity of international efforts to prevent the illicit use of nuclear materials and to facilitate effective cooperation among States Parties.

Scope and Application

The Extradition Act 1988 provides the framework for the extradition of persons from Australia to other countries and facilitates the making of extradition requests by Australia to other countries. This Act applies to persons who are wanted for extradition to or from Australia and to the countries listed as extradition countries under the Act, specifically those declared by regulations to be such countries. The Extradition (Physical Protection of Nuclear Material) Amendment Regulations 2007 extend the application of the Act to include additional countries that are States Parties to the Convention on the Physical Protection of Nuclear Material, thereby ensuring that extradition for offences under the Convention can occur with these countries in line with the Convention's requirements. The Act applies to the Commonwealth of Australia and operates within the scope of any applicable extradition treaties. The Act does not apply to New Zealand, which has a separate extradition arrangement with Australia. The Regulations also amend the Act to clarify that offences related to the physical protection of nuclear material, as listed in Article 7 of the Convention, are not considered political offences for the purposes of extradition or mutual assistance, thereby facilitating extradition for such offences.

Key Provisions

The Extradition (Physical Protection of Nuclear Material) Amendment Regulations 2007 (No. 1) (the Regulations) amend the Extradition (Physical Protection of Nuclear Material) Regulations (the Principal Regulations) to implement recent changes to the Convention on the Physical Protection of Nuclear Material (the Convention) (s 2). The Regulations update the list of countries to which the Extradition Act 1988 (the Act) applies subject to the Convention to include all countries that are currently States Parties to the Convention (s 2). This update includes the addition of Cape Verde, Comoros, Montenegro, New Zealand, Nigeria, Palau, and Yemen to the list of countries (s 2). The Regulations also implement a recent change to the Convention that Article 11A, which states that the offences in Article 7 of the Convention should not be considered political offences for the purposes of extradition or mutual assistance (s 2). The Act imposes certain obligations and requirements on the parties or entities it governs. For instance, the Act requires that extradition from Australia can only take place with an extradition country, or with New Zealand, under the procedures set down in the Act (s 5). An ‘extradition country’ is any country (other than New Zealand) that is declared by the regulations to be an extradition country (s 5). The Act also enables Australia to carry out its obligations under extradition treaties (s 11). The Regulations ensure that the Act applies to the Convention in relation to the countries listed in Schedule 1 and that the offences in Article 7 of the Convention are not considered political offences for the purposes of the Act (s 2). There are offences, penalties, or civil/criminal consequences for breach of the Act and the Regulations. However, the Explanatory Statement does not provide specific information on the maximum penalties for breach of the Act and the Regulations. It is important to note that the Attorney-General retains a broad discretion to refuse an extradition request by a country (s 11). Extradition would not be permitted where the fugitive 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 (s 11). Extradition would also 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 (s 11). In conclusion, the Extradition (Physical Protection of Nuclear Material) Amendment Regulations 2007 (No. 1) amend the Extradition (Physical Protection of Nuclear Material) Regulations to update the list of countries to which the Act applies subject to the Convention and to implement a recent change to the Convention relating to political offences. The Regulations impose certain obligations and requirements on the parties or entities it governs, such as ensuring that extradition from Australia can only take place with an extradition country or with New Zealand, and that the offences in Article 7 of the Convention are not considered political offences for the purposes of the Act. The Explanatory Statement does not provide specific information on the maximum penalties for breach of the Act and the Regulations. However, the Attorney-General retains a broad discretion to refuse an extradition request by a country in certain circumstances.

Legal classification tags

Area of Law
International Law
Instrument
Regulation
Concepts
Definitions & Interpretation
Commencement Provisions
Regulatory Standards

Interactions

Authorises

All Versions

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.