Extradition (Republic of South Africa) Regulations (Amendment) (Cth)
I, THE
GOVERNOR-GENERAL of the Commonwealth of Australia, acting with the advice of
the Federal Executive Council, hereby make the following Regulations under the
Dated 27 June 1985.
N. M. STEPHEN
Governor-General
By His Excellency’s Command,
LIONEL BOWEN
Attorney-General
“4. (1) A person is not liable to be surrendered to the Republic of South Africa in respect of an offence to which a requisition by that State for the surrender of the person relates unless an act or ommission by the person evidence of which is produced in connection with the requisition, or any equivalent act or omission, would, if it took place, at the time when the requisition was made, in, or within the jurisdiction of, the part of Australia where the person is found, constitute an offence against the law in force in that part of Australia—
(a) that is not a service offence (within the meaning of the
Defence Force Discipline Act 1982 ) other than an offence against sub-section 61 (1) of that Act; and(b) the maximum penalty for which is, or includes, imprisonment for not less than 12 months.
“(2) A person is not liable to be surrendered to the Republic of South Africa in respect of an offence to which a requisition by that state for the surrender of the person relates if—
(a) the offence is, or is by reason of the circumstances in which it is alleged to have been committed or was committed, an offence of a political character or the requisition has in fact been made with a view to try or punish the person for an offence of a political character;
(b) had the offence been alleged to have been committed by the person in Australia, the period within which proceedings in respect of the offence could, in accordance with the law of, or of a part of, Australia, have been commenced against the person would, at the time that the requisition was made, have expired;
(c) the offence is, under the law of, or of a part of, Australia, regarded as having been committed, either in whole or in part, in Australia or that part of Australia;
(d) proceedings in respect of the offence have, in accordance with the law of, or of a part of, Australia, been commenced against the person in Australia; or
(e) final judgment in respect of the offence has been entered against the person in Australia or in a foreign state other than the Republic of South Africa.
“(3) The Attorney-General shall not give a notice under sub-section 15 (1) of the Act, or issue a warrant under sub-section 18 (2) or (2b) of the Act, in respect of a person for whose surrender a requisition has been made by the Republic of South Africa if—
(a) there are substantial grounds for believing that—
(i) the requisition, although purporting to have been made in respect of an offence for which, but for this paragraph, the person would be liable to be surrendered to the Republic of South Africa, was made for the purpose of prosecuting or punishing the person on account of his or her race, religion, nationality or political opinions; or
(ii) if the person is surrendered to that state, the person may be prejudiced at his or her trial, or punished, detained or restricted in his or her personal liberty, by reason of his or her race, religion, nationality or political opinions;
(b) the offence to which the requisition relates is, under the law of, or of a part of, Australia regarded as having been committed, either in whole or in part, in, or within the jurisdiction of, Australia or that part of Australia and the authorities of Australia or of that part of Australia having competency in that respect have decided to refrain from prosecuting the person for that offence;
(c) the person, on being extradited to the Republic of South Africa, would be liable to be tried in that State by a court or tribunal—
(i) that has been specially established for the purpose of trying the person’s case; or
(ii) that is only occasionally, or under exceptional circumstances, authorized to try persons accused of the offence to which the requisition relates; or
(d) the offence to which the requisition relates, not being an offence punishable by death, is punishable by a cruel, inhuman or unjustifiable penalty,
and, in a case where the offence to which the requisition relates is punishable in the Republic of South Africa by death, unless assurances satisfactory to Australia are given by the Republic of South Africa that the penalty of death will not be imposed on the person or, if that penalty is imposed, that it will not be carried out.
“(4) Where—
(a) a person accused of an extradition crime that is alleged to have been committed at a place in the Republic of South Africa or within the jurisdiction of, or of a part of, that state is brought before a Magistrate under section 17 of the Act; and
(b) sub-section (6) of that section applies in relation to the person,
the Magistrate shall not commit the person to prison pursuant to that sub-section unless there is produced to the Magistrate, in addition to the statements referred to in sub-paragraph 17 (6) (a) (i) of the Act, such evidence as would, in the opinion of the Magistrate, according to the law in force in the State or Territory of which he or she is a Magistrate, justify the trial of the person if the act or omission constituting that crime had taken place in, or within the jurisdiction of, that State or Territory.
“(5) The Attorney-General may decline to issue a warrant under sub-section 18 (2) or (2b) of the Act for the surrender of a person to the Republic of South Africa if—
(a) the person is an Australian citizen; or
(b) the Attorney-General, while taking into account the nature of the offence and the interests of the Republic of South Africa, is nevertheless of the opinion that, in the circumstances of the case, it would be unjust, oppressive or incompatible with humanitarian considerations to surrender the person to that state.”
1.
Notified in the
2. Statutory Rules 1985 No. 14.
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