Commonwealth Numbered Regulations - Explanatory Statements

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EXTRADITION (CONVENTION FOR SUPPRESSION OF ACTS OF NUCLEAR TERRORISM) REGULATION 2012 (SLI NO 277 OF 2012)

EXPLANATORY STATEMENT

Select Legislative Instrument 2012 No. 277

Issued by the authority of the Attorney-General

Extradition Act 1988

Extradition (Convention for Suppression of Acts of Nuclear Terrorism) Regulation 2012

Section 55 of the Extradition Act 1988 (the Extradition Act) provides, in part, that the Governor-General may make regulations, not inconsistent with the Extradition Act, prescribing all matters required or permitted by the Extradition Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Extradition Act. 

The Extradition 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 Extradition Act.  Section 5 of the Extradition Act provides that an 'extradition country' is any country (other than New Zealand) that is declared by the regulations to be an extradition country; or any colony, territory or protectorate of a country, or a territory for the international relations of which a country is responsible, that is declared by regulations to be an extradition country.

Subsection 11(1A) of the Extradition Act provides that the regulations may provide that the Extradition 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 Extradition Act to the country subject to the treaty.

Australia ratified the International Convention for the Suppression of Acts of Nuclear Terrorism (New York, 13 April 2005) (the Convention) on 16 March 2012.  The Convention provides a framework for international cooperation in the prevention and investigation of alleged offences, and prosecution and extradition of persons who allegedly commit specified offences involving nuclear material and other radioactive substances or devices. 

States Parties to the Convention are required to enact specific offences in their domestic law, as well as offences relating to threats or attempts to commit crimes or contributions to the commission of such crimes.  The Convention complements other United Nations legal instruments on counter-terrorism including the International Convention for the Suppression of Terrorist Bombings (1997), the International Convention for the Suppression of the Financing of Terrorism (2002) and the Convention on the Physical Protection of Nuclear Material (1987).

This Regulation applies the Extradition Act to States Parties to the Convention by declaring each State Party to the Convention to be an extradition country for the purposes of the Extradition Act.  The effect of the Regulation is to allow Australia to make and receive extradition requests to and from a State Party to the Convention, for offences specified in the Convention in accordance with the Extradition Act.  The Regulation declares all States Parties to the Convention to be extradition countries for the purpose of extradition for offences specified in the Convention, it does not list them individually.  Accordingly, the Regulation does not need to be updated if a new State Party ratifies or accedes to the Convention.

Consultation outside the Australian Government was not undertaken for this legislative instrument as it relates to criminal justice and law enforcement matters.  The legislative instrument does not have a direct, or substantial indirect, effect on business and does not restrict competition.  Australia's accession to the Convention was the subject of a public hearing by the Joint Standing Committee on Treaties, which recommended binding treaty action be taken in Report 122, tabled on 22 November 2011. 

The Regulation commenced on the day after it was registered. 

The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

ATTACHMENT

Details of the Extradition (Convention for Suppression of Acts of Nuclear Terrorism) Regulation 2012

Section 1 - Name of Regulation

This section specifies that the title of the Regulation is the Extradition (Convention for Suppression of Acts of Nuclear Terrorism) Regulation 2012.

Section 2 - Commencement

This section specifies that the Regulation commences on the day after it is registered.

Section 3 - Definitions

This section provides that the term 'Act' is defined to mean the Extradition Act 1988 (the Extradition Act) and the term 'Convention' is defined to mean the International Convention for the Suppression of Acts of Nuclear Terrorism (the Convention).

Section 4 - Extradition Countries

Australia can only extradite a person 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; or any colony, territory or protectorate of a country, or a territory for the international relations of which a country is responsible, that is declared by regulations to be an extradition country.

This section provides that States Parties to the Convention are extradition countries for the purposes of section 5 of the Extradition Act.  Note 1 to Section 4 outlines that Article 25 of the Convention states when the Convention enters into force for a State, being 30 days after ratification, acceptance, approval or accession.  Note 2 to Section 4 states that the countries for which the Convention is currently in force are listed on the United Nations website at http://www.un.org.

Section 5 - Application of the Act

The Extradition Act provides the legal framework for extradition to and from Australia.  This section provides that the Extradition Act applies to the extradition countries set out in section 4, subject to the Convention.  This means that any request received from an 'extradition country', as outlined in Section 4 of the Regulation, for offences established under the Convention will be determined in accordance with the Extradition Act, subject to any modifications necessary to meet the requirements of the Convention.

Schedule 1 - International Convention for the Suppression of Acts of Nuclear Terrorism

This Schedule sets out the English text of the Convention.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Extradition (Convention for Suppression of Acts of Nuclear Terrorism) Regulation 2012

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Legislative Instrument

Extradition is a key international crime cooperation tool. It is the process by which one country sends a person to another country to face criminal charges or serve a sentence. The Extradition Act 1988 (Extradition Act) provides the legislative basis for extradition in Australia.  Under the Extradition Act, Australia can only accept extradition requests from countries that have been declared by regulation to be 'extradition countries' for the purpose of the Extradition Act. 

The Extradition (Convention for the Suppression of Acts of Nuclear Terrorism) Regulation 2012 (the Regulation) will give effect in Australian domestic law to Australia's extradition obligations under the Convention for the Suppression of Acts of Nuclear Terrorism (the Convention).  The Regulation will apply the Extradition Act to States Parties to the Convention by declaring that each State Party to the Convention is an 'extradition country' for the purposes of the Extradition Act. 

The effect of the Regulation is to allow Australia to make and receive extradition requests to and from a State Party to the Convention, for offences specified in the Convention.

Human rights implications

This Legislative Instrument does not engage any of the applicable rights or freedoms.

Extradition is the process by which one country sends a person to another country to face criminal charges or serve a sentence.  Australia's extradition regime contains a number of human rights safeguards that appropriately balance Australia's need to comply with our international obligations while ensuring that the rights of individuals are protected.

The Regulation ensures that Australia is able to make and receive extradition requests for offences contained in the Convention.  The offences contained in the Convention are of a serious nature and are of an international concern.  As a State Party to the Convention, Australia has an obligation to facilitate international crime cooperation, including the extradition of persons who are wanted to face prosecution or serve a sentence in another State that is a party to the Convention. 

The Regulation does not alter any of the human rights safeguards that are already contained in Australia's extradition regime. 

Conclusion

While Australia's extradition regime engages with some human rights, it does so in a reasonable and proportionate way and does not operate to limit or restrict those rights.  As such, the Regulation is compatible with human rights.

Nicola Roxon

Attorney-General

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