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.