Commonwealth Numbered Regulations - Explanatory Statements

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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 Consistent with the requirements of the South African Act at the time, the Regulations as originally made required South Africa to provide documents establishing a prima facie case against the fugitive if the fugitive had not yet been convicted.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.

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