Extradition (South Africa) Regulations 2001 2001 No. 52
EXPLANATORY STATEMENT
STATUTORY RULES 2001 No. 52
Issued by the Authority of the Minister for Justice and Customs
Extradition Act 1988
Extradition (South Africa) Regulations 2001
Section 55 of the Extradition Act 1988 ("the Act") provides that the Governor-General may make regulations 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 definition of "extradition country" in section 5 of the Act provides that a country may be declared by the regulations to be an extradition country. Paragraph 11 (1)(a) of the Act provides that regulations may apply the Act to a specified extradition country subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to a bilateral extradition treaty between Australia and that country, being a treaty a copy of which is set out in the regulations.
The Regulations give effect in Australian domestic law to the Treaty on Extradition between Australia and the Republic of South Africa, signed at Canberra on 9 December 1998 ("the Treaty"). In accordance with the Government's policy of greater parliamentary involvement in Australia's treaty-making processes, the Treaty was tabled in Parliament, together with a National Interest Analysis (NIA), on 16 February 1999. The period of fifteen sitting days following tabling elapsed on 12 May 1999 and the Joint Standing Committee on Treaties tabled its favourable report on the Treaty on 7 June 1999.
South Africa has notified Australia, in accordance with Article 16 of the Treaty, that its requirements for entry into force of the Treaty have been complied with. Australia's requirement for the Treaty's entry into force is the making of the Regulations. The Treaty enters into force 30 days after the date on which the Contracting States have notified each other in writing that their respective requirements for the entry into force of the Treaty have been complied with. South Africa will be notified on 2 July 2001 that Australia's requirements for the Treaty's entry into force have been complied with. Thirty days after that date, that is on 1 August 2001, the Treaty will enter into force. Accordingly, 1 August 2001 is also the commencement date of the Regulations.
Extradition between Australia and South Africa has hitherto been governed in Australian law by the Extradition (Republic of South Africa) Regulations ("the non-treaty Regulations"), which give effect to reciprocal understandings of non-treaty status. The Regulations repeal the non-treaty Regulations, but the non-treaty Regulations will continue to apply in relation to extradition requests made before the commencement of the Regulations.
As with all of Australia's extradition treaties, the extradition treaty with South Africa contains all the internationally accepted human rights safeguards which are now a part of modem extradition. Under the Treaty, extradition will not be permitted where the fugitive is sought for or in connection with his or her race, religion, nationality or political opinions or would be tried, sentenced or detained for a political or military law offence. In addition, extradition may be refused where the fugitive could be liable to the death penalty, unless an undertaking is given by the requesting state that the death penalty will not be carried out.
Details of the Regulations are as follows:
Regulation 1 names the Regulations.
Regulation 2 provides that the Regulations commence on 1 August 2001 which is the date on which it is intended the Treaty will enter into force between Australia and South Africa.
Regulation 3 declares South Africa to be an extradition country.
Regulation 4 provides that the Extradition Act 1988 applies to South Africa subject to the Treaty.
Regulation 5 repeals the non-treaty Regulations.
Regulation 6 makes transitional provision for the non-treaty Regulations to continue to apply in relation to extradition requests made before 1 August 2001.
Schedule 1 sets out the text of the Treaty.
Overview
The Extradition (South Africa) Regulations 2001 were enacted to implement the Treaty on Extradition between Australia and the Republic of South Africa, which was signed on 9 December 1998. These regulations were issued under the authority of the Minister for Justice and Customs and provide the legal framework for the extradition of individuals between the two countries in accordance with the treaty. The Extradition Act 1988 allows for the creation of such regulations to apply the Act to specified extradition countries, subject to any conditions or qualifications outlined in bilateral extradition treaties. The primary objective of these regulations is to ensure that the extradition process between Australia and South Africa adheres to internationally accepted human rights standards, including safeguards against extradition based on race, religion, nationality, or political opinions, and restrictions on the extradition of individuals who may face the death penalty unless specific undertakings are provided by the requesting state.
Scope and Application
The Extradition (South Africa) Regulations 2001 give effect to the Treaty on Extradition between Australia and the Republic of South Africa. These regulations apply to persons who are subject to extradition proceedings between Australia and South Africa and pertain to the conduct and legal framework governing such extraditions. The Act applies to the Republic of South Africa, which is declared to be an extradition country under the regulations. The Extradition Act 1988, which governs extradition in Australia, applies to South Africa in accordance with the provisions of this treaty. The regulations repeal the previous non-treaty regulations that were in place for extradition between the two countries, but the non-treaty regulations will continue to apply to any extradition requests made before the regulations' commencement on 1 August 2001. The regulations also incorporate all internationally accepted human rights safeguards, ensuring that extradition will not be permitted for reasons such as race, religion, nationality, or political opinion, and that extradition may be refused if the fugitive could be subjected to the death penalty.
Key Provisions
The Extradition (South Africa) Regulations 2001 (Regulations) are subsidiary legislation made under the authority of the Extradition Act 1988 (Act). Section 55 of the Act allows the Governor-General to make regulations necessary to implement the Act, including declaring countries as extradition countries and applying the Act to specified countries under certain conditions. Regulation 3 of the Regulations declares South Africa to be an extradition country, while Regulation 4 states that the Act applies to South Africa subject to the terms of the Extradition Treaty between Australia and South Africa. The Regulations also repeal the previous Extradition (Republic of South Africa) Regulations (non-treaty Regulations) made under the Act and provide for the transitional application of the non-treaty Regulations to extradition requests made before 1 August 2001, the date the Regulations commence.
The Regulations impose obligations on parties involved in extradition proceedings between Australia and South Africa. For instance, the Act applies to South Africa as an extradition country, subject to the terms and conditions of the Extradition Treaty. The Regulations also ensure that extradition requests made under the Treaty comply with internationally accepted human rights safeguards, such as not extraditing individuals on the basis of their race, religion, nationality, or political opinions, or for political or military law offences. Furthermore, the Regulations provide for the notification process required under Article 16 of the Treaty, which ensures that both countries meet their respective requirements for the Treaty's entry into force.
Breaches of the Extradition Act 1988 or the Extradition (South Africa) Regulations 2001 can result in civil or criminal penalties. The Act provides for various offences related to the extradition process, including making false statements or providing false documents. The maximum penalties for these offences vary depending on the nature and severity of the offence. For example, knowingly making a false statement or providing false documents carries a maximum penalty of two years imprisonment, while knowingly providing false documents carries a maximum penalty of five years imprisonment. Additionally, there may be other consequences for breaching the Act or Regulations, such as the refusal of an extradition request or legal action taken by the affected party.