Extradition (Republic of South Africa) Regulations (Amendment) 1997 No. 108
EXPLANATORY STATEMENT
STATUTORY RULES 1997 No. 108
Issued by the Authority of the Attorney-General and Minister for Justice
Extradition Act 1988
Extradition (Republic of South Africa) Regulations (Amendment)
Section 55 of the Extradition Act 1988 (the Act) provides that the Governor-General may make regulations prescribing 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. Paragraph 11 (1) (b) of the Act provides that regulations may apply the Act to a foreign country subject to such limitations, conditions, exceptions or qualifications (not being necessary to give effect to a bilateral or multilateral treaty) as are set out in the regulations. This allows for regulations to be made applying the Act to a country with which Australia does not have an extradition treaty.
The Extradition (Republic of South Africa) Regulations (Statutory Rules 1988 No. 301-"the Regulations") apply the Act, as modified by regulation 5, to South Africa on a non-treaty basis. South Africa had advised that, in the absence of a treaty, it can extradite to Australia on a reciprocity basis under its Extradition Act, 1962. Consistent with the requirements of the South African Act at the time, the Regulations as originally made required South Africa to provide documents establishing a prima facie case against the fugitive if the fugitive had not yet been convicted.
In January 1997 the Extradition Act, 1962 (Sth Africa) was amended to allow extradition without provision of evidence if the prosecuting authority in the requesting state provides a certificate stating that it has sufficient evidence at its disposal to warrant prosecution of the fugitive. Such "no evidence" extradition is the preferred approach under current Australian extradition policy.
The amending Regulations enable South Africa to extradite from Australia on the same "no evidence" basis on which Australia can now extradite from South Africa.
All internationally accepted safeguards in extradition continue to apply. For example, persons will not be extradited to South Africa where the death penalty may be imposed unless the South African Government gives an undertaking that the death penalty either will not be imposed or, if imposed, will not be carried out. In addition the Attorney-General has a wide discretion to refuse surrender of a person to South Africa for political offences or offences attracting cruel or unusual punishment, or where it would be incompatible with humanitarian considerations. Similar non-treaty regulations have been made applying the Act to Denmark, Japan, Iceland, the Marshall Islands and Thailand on a "no evidence" basis.
Details of the amending Regulations are as follows:
Regulation 1 is a citation provision.
Regulation 2 proves that subregulations 5 (5) and (6) are omitted. These were the subregulations which required provision of documents that allowed the sufficient evidence test to be satisfied.
The Amendment to the Regulations commenced on gazettal.
Overview
The Extradition (Republic of South Africa) Regulations (Amendment) 1997, No. 108, were enacted to update the existing extradition arrangements between Australia and South Africa in light of changes in South African law. These regulations were made under the authority of the Attorney-General and Minister for Justice, pursuant to Section 55 of the Extradition Act 1988. The primary problem these regulations address is the alignment of Australian extradition practices with South African legal changes, particularly the South African Extradition Act, 1962, which was amended in January 1997 to permit extradition without the provision of evidence if a certificate of sufficient evidence is provided by the prosecuting authority of the requesting state. The policy objective is to facilitate the extradition of fugitives on a "no evidence" basis, consistent with current Australian extradition policy, while maintaining all internationally accepted safeguards and ensuring that the death penalty will not be imposed unless certain undertakings are given by the South African Government.
Scope and Application
The Extradition (Republic of South Africa) Regulations (Amendment) 1997 No. 108 amends the Extradition (Republic of South Africa) Regulations 1988 to update the extradition arrangements between Australia and South Africa. The Extradition Act 1988 provides the legal framework for extradition between Australia and other countries, including those with which Australia does not have a treaty. The Regulations apply the Act to South Africa on a non-treaty basis, allowing for extradition of fugitives between the two countries. The amendments update the Regulations to allow for "no evidence" extradition, where South Africa can extradite a fugitive based on a certificate of sufficient evidence provided by the Australian prosecuting authority. This change aligns South Africa’s extradition practices with current Australian policy and maintains internationally accepted safeguards in extradition, such as the prohibition of extradition where the death penalty may be imposed. The Regulations commenced on gazettal and have no exclusions or thresholds specified in the amending Regulations.
Key Provisions
The Extradition (Republic of South Africa) Regulations (Amendment) 1997 No. 108, which are made under section 55 of the Extradition Act 1988, modify the existing Extradition (Republic of South Africa) Regulations (Statutory Rules 1988 No. 301) to allow for extradition on a 'no evidence' basis between Australia and South Africa. This means that South Africa can now extradite individuals from Australia without requiring the production of evidence if a certificate is provided by the Australian prosecuting authority stating that there is sufficient evidence to warrant prosecution. This aligns with Australia's current extradition policy.
These Regulations impose obligations on both Australian and South African authorities involved in the extradition process. For Australia, the key requirement is for the prosecuting authority to provide a certificate stating the existence of sufficient evidence. South Africa, on the other hand, must adhere to the international safeguards stipulated in the Extradition Act 1988, including not extraditing individuals where the death penalty may be imposed unless certain undertakings are given, and considering humanitarian factors when deciding whether to extradite.
The Regulations also contain provisions that ensure the protection of individuals' rights during the extradition process. For instance, extradition will not proceed if the death penalty may be imposed unless the South African Government provides an assurance that the death penalty will not be imposed or carried out. Additionally, the Attorney-General has the discretion to refuse extradition in cases involving political offences, offences that attract cruel or unusual punishment, or where extradition would be incompatible with humanitarian considerations.
Failure to comply with the provisions of the Extradition Act 1988 and the Extradition (Republic of South Africa) Regulations (Amendment) 1997 No. 108 may result in legal consequences. Although the Regulations themselves do not explicitly state specific penalties for breaches, breaches of the Extradition Act 1988 can result in both criminal and civil liabilities. Criminal penalties can include fines and imprisonment, while civil penalties can include damages for wrongful extradition. The exact penalties would be determined by the courts based on the nature and severity of the breach.