EXPLANATORY STATEMENT
Select Legislative Instrument 2009 No. 95
Issued by the authority of the Minister for Home Affairs
Extradition Act 1988
Extradition (Physical Protection of Nuclear Material) Amendment Regulations 2009 (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 to New Zealand, and facilitates the making of requests for extradition by Australia to other countries. Extradition from Australia can only take place to an extradition country, or to New Zealand, under the special 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.
Australia is party to the Convention on the Physical Protection of Nuclear Material 1979 (the Convention). The Extradition (Physical Protection of Nuclear Material) Regulations 1988 (the Nuclear Material Regulations) declare countries listed in Schedule 1 of the Regulations to be ‘extradition countries’ for the purposes of the Act. The countries listed in the Schedule are those countries that were a party to the Convention when the Nuclear Material Regulations were last updated in 2007. The Schedule does not include a number of countries that have become a party to the Convention since 2007.
The Extradition (Physical Protection of Nuclear Material) Amendment Regulations 2009
(No. 1) (the Regulations) repeal the list of countries in Schedule 1 of the Nuclear Material Regulations, and declare that a country, or a colony, territory or protectorate of a country, for which the Convention is in force is an ‘extradition country’ for the purposes of section 5 of the Act and that the Act applies subject to the Convention for those countries that are a party to the Convention. By providing that any country that is a party to the Convention at any given time will be an ‘extradition country’ for the purposes of the Act, these amendments will ensure Australia is able to meet its international obligations under the Convention.
The Regulations simplify the administrative arrangements so that the regulations do not have to be amended each time a new country becomes a party to the Convention. The Regulations include a note referring the reader to the International Atomic Energy Agency website which contains a current list of countries for which the Convention is in force.
The approach of referring in regulations to foreign countries who are party to a Convention without listing those countries has been adopted in other regulations. In particular, subsection 13(3) of the Legislative Instruments Act 2003 allows things to be declared in regulations by referring to a class of things.
Extradition under the Regulations operates in accordance with the Act. 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 also subject to the various safeguards set out in the Act. For example, extradition will 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 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. Extradition must also be refused where the fugitive could be subjected to torture. In addition, the Attorney-General retains a broad discretion to refuse an extradition request by a country.
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.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulations commenced on the day after they were registered with the Federal Register of Legislative Instruments.
Overview
The Extradition (Physical Protection of Nuclear Material) Amendment Regulations 2009 (No. 1) were enacted under section 55 of the Extradition Act 1988 to address the evolving membership of the Convention on the Physical Protection of Nuclear Material 1979. This amendment was necessary to ensure that Australia could meet its international obligations under the Convention by including all countries that are parties to the Convention at any given time as "extradition countries" for the purposes of the Extradition Act. The regulations simplify administrative arrangements by avoiding the need to amend the list of countries each time a new country becomes a party to the Convention, instead referring to the International Atomic Energy Agency website for the current list. The objective of these amendments is to streamline the extradition process and uphold Australia's commitments under the Convention without altering existing extradition procedures or safeguards. These regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003 and commenced on the day after they were registered with the Federal Register of Legislative Instruments.
Scope and Application
The Extradition (Physical Protection of Nuclear Material) Amendment Regulations 2009 (No. 1) amends the Extradition (Physical Protection of Nuclear Material) Regulations 1988 to update the list of countries that are considered 'extradition countries' for the purposes of the Extradition Act 1988. These Regulations apply to any country that is a party to the Convention on the Physical Protection of Nuclear Material 1979 at any given time. This approach ensures that Australia can meet its international obligations under the Convention without the need to amend the Regulations each time a new country becomes a party to the Convention. The amendment streamlines administrative processes and directs readers to the International Atomic Energy Agency website for the most current list of countries party to the Convention. Extradition under these Regulations follows the procedures and safeguards outlined in the Extradition Act 1988, including the modern 'no evidence' extradition procedure, and includes provisions to protect individuals from extradition if they could face the death penalty, torture, or if the request is related to their race, religion, nationality, or political opinions.
Key Provisions
The Extradition (Physical Protection of Nuclear Material) Amendment Regulations 2009 (No. 1) (Regulations) amend the Extradition (Physical Protection of Nuclear Material) Regulations 1988 (Nuclear Material Regulations) by replacing the list of countries in Schedule 1 with a new approach that declares a country, or a colony, territory or protectorate of a country, for which the Convention on the Physical Protection of Nuclear Material 1979 is in force to be an ‘extradition country’ (section 3). This amendment ensures that any country that is a party to the Convention at any given time will be an ‘extradition country’ under the Extradition Act 1988 (the Act) (section 3). The Regulations also note that a current list of countries for which the Convention is in force can be found on the International Atomic Energy Agency website (section 3). By adopting this approach, the Regulations simplify administrative arrangements and ensure Australia can meet its international obligations under the Convention without the need for ongoing amendments each time a new country becomes a party to the Convention.
Under the Regulations, any country or territory for which the Convention is in force becomes an extradition country for the purposes of the Act, subject to the terms of the Convention (section 3). Extradition under the Regulations is governed by the Act, which applies the modern ‘no evidence’ extradition procedure, meaning that countries are not required to present evidence establishing a prima facie case against the person sought (section 4). The Act also includes various safeguards, such as prohibiting extradition if the fugitive is sought for or in connection with their race, religion, nationality or political opinions, or if they are to be tried, sentenced or detained for a political or military offence (section 10). Extradition must also be refused if 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 (section 10). Similarly, extradition must be refused if the fugitive could be subjected to torture (section 10). The Attorney-General also retains a broad discretion to refuse an extradition request by a country (section 11).
There are no specific offences or penalties outlined in the Explanatory Statement for the Extradition (Physical Protection of Nuclear Material) Amendment Regulations 2009 (No. 1). However, the Act contains provisions for offences and penalties related to extradition. For example, section 22 of the Act makes it an offence to fail to comply with an order or direction made under the Act, with a maximum penalty of 50 penalty units (approximately AUD 5,500). Section 23 of the Act makes it an offence to obstruct or hinder the operation of the Act, with a maximum penalty of 100 penalty units (approximately AUD 11,000). These penalties reflect the seriousness of the offences and the importance of ensuring compliance with the Act and its regulations.