Commonwealth Numbered Regulations - Explanatory Statements

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EXTRADITION (SOUTH AFRICA) REGULATIONS 2001 2001 NO. 52

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.