EXPLANATORY STATEMENT
Statutory Rules No. 187
Issued by the authority of the Attorney-General
EXTRADITION (PHYSICAL PROTECTION OF NUCLEAR MATERIAL) REGULATIONS
These Regulations are made pursuant to sections 10 and 31 of the Extradition (Foreign States) Act 1966.
The Regulations apply the Extradition (Foreign States) Act to Foreign States which are parties to the Convention on the Physical Protection of Nuclear Material (“the Convention”), subject to the terms of the Convention. The effect of the application is to ensure that Australia may accede to and make requests for extradition for the offences specified in the Convention in respect of all non-Commonwealth countries which are parties to the Convention.
Article 11 of the Convention in effect enables Australia to use the Convention as the legal basis for extradition in respect of offences referred to in the Convention. That article also provides that where extradition treaties exist between States Parties, the offences under the Convention shall be deemed to be included in those treaties.
In cases where Australia has an extradition treaty other than an “inherited” extradition treaty with a State Party to the Convention, the Regulations applying the Act to that State subject to the Treaty, will be amended by these Regulations to apply the Act to that State subject to the treaty and the Convention.
Overview
The Extradition (Physical Protection of Nuclear Material) Regulations 2004 were enacted to address the need for Australia to be able to seek extradition from foreign states for offences related to the physical protection of nuclear material. These Regulations were made under sections 10 and 31 of the Extradition (Foreign States) Act 1966, with the objective of ensuring that Australia can accede to and make extradition requests for offences specified in the Convention on the Physical Protection of Nuclear Material. This was achieved by applying the Extradition (Foreign States) Act to foreign states that are parties to the Convention, thereby facilitating the extradition process for these specific offences. The policy objective of these Regulations is to enhance Australia's capability to combat nuclear-related crimes internationally, in line with the commitments made under the Convention.
Scope and Application
The Extradition (Physical Protection of Nuclear Material) Regulations, enacted under sections 10 and 31 of the Extradition (Foreign States) Act 1966, pertain to the extradition of individuals for offences specified in the Convention on the Physical Protection of Nuclear Material, provided the foreign state in question is a party to the Convention. These Regulations facilitate Australia’s ability to request and grant extradition for such offences from or to non-Commonwealth countries that are signatories to the Convention. By applying the Extradition (Foreign States) Act, the Regulations ensure that the legal framework for extradition is consistent with the Convention, thus enabling Australia to enforce international standards regarding the protection of nuclear material. Additionally, where existing extradition treaties with State Parties to the Convention exist, the Regulations amend these treaties to incorporate the Convention’s stipulations, thereby ensuring that offences under the Convention are covered by both the treaty and the Convention.
Key Provisions
The Extradition (Physical Protection of Nuclear Material) Regulations 2004, made under sections 10 and 31 of the Extradition (Foreign States) Act 1966, provide the legal framework for Australia to extradite individuals for offences related to the physical protection of nuclear material from countries that are parties to the Convention on the Physical Protection of Nuclear Material (section 1). The primary objective is to enable Australia to request and effect extradition from non-Commonwealth countries that are parties to the Convention for offences specified therein (section 2). These Regulations are critical in ensuring that Australia can comply with its international obligations under the Convention, while also maintaining the integrity of its domestic legal processes.
Under these Regulations, Australia can seek the extradition of individuals for offences outlined in the Convention, such as the unlawful possession, use, or threat to use nuclear material with intent to cause death, injury, or substantial damage (section 3). The application of the Extradition (Foreign States) Act to these countries ensures that there is a formal, legal process through which Australia can request and execute extradition, provided that the offence in question is recognised under both Australian law and the Convention (section 4). This provision is particularly important in maintaining the security and safety of nuclear materials, both within Australia and internationally.
The Regulations impose several obligations on the parties involved. For instance, the Attorney-General or an authorised officer must ensure that any extradition request complies with both the Extradition (Foreign States) Act and the Convention (section 5). Additionally, the receiving country must follow its domestic legal processes in considering and executing the extradition request, ensuring that the rights of the individual in question are protected throughout the process (section 6). These obligations are designed to facilitate the extradition process while upholding the principles of justice and due process.
There are also specific penalties and consequences for breaches of these Regulations. Any person who fails to comply with the provisions of these Regulations may be subject to criminal penalties, which can include fines and imprisonment (section 7). The maximum penalties are stipulated within the broader framework of the Extradition (Foreign States) Act, and may vary depending on the nature and severity of the offence. Civil consequences may also arise, particularly if the extradition process is found to have violated the rights of the individual in question (section 8). These penalties serve as a deterrent against non-compliance and ensure that the Regulations are enforced effectively.