Appendix A
Terms of reference
The Law Commission has been asked to review the Extradition Act 1999 and Mutual Assistance in Criminal Matters Act 1992. These Acts provide a framework for formal assistance between New Zealand and foreign governments in the investigation and prosecution of crime. The purpose of the review is to ensure that these Acts contain processes that are efficient, effective, and not overly complex or unnecessarily expensive, but that also provide important checks and balances to protect those being investigation and prosecuted.
Context of the review
The review will have regard to:
(i) the changing international context, including the opportunities and risks posed by globalisation, technological change, increasing international travel and transnational crime, and increasing cooperation between countries;
(ii) New Zealand’s international legal obligations;
(iii) the wider context of the New Zealand Government’s interaction with foreign governments, including the increasing focus on international criminal cooperation at an inter-governmental level;
(iv) the importance of extradition and mutual assistance in effectively combatting transnational and domestic crime; and
(v) proper safeguards of the rights of those being investigated or prosecuted for committing crimes.
Objectives of the review
The review will aim to:
(i) review the alignment of New Zealand’s current legislative framework to international obligations relating to extradition and mutual assistance;
(ii) review the alignment of New Zealand’s extradition and mutual assistance framework and mechanisms with international best practice;
(iii) improve the efficiency, effectiveness and quality of New Zealand’s framework and mechanisms for extradition and mutual assistance;
(iv) consider what changes are required to ensure that New Zealand’s legislative framework for mutual assistance and extradition is appropriate for the modern 21st century context; and
(v) uphold fundamental principles, rights and protections that ought to be present in New Zealand’s extradition and mutual assistance scheme, including proper protections of human rights.
Scope of the review
The review will consider:
(i) the principles and policy of extradition and mutual assistance law;
(ii) technical issues with the Extradition Act and Mutual Assistance in Criminal Matters Act;
(iii) the interaction of the Extradition Act and Mutual Assistance in Criminal Matters Act with other legislation and law enforcement cooperation practices, and with other legislation and other bilateral and multilateral treaties; and
(iv) the extent to which New Zealand’s current legislative framework inhibits effective cooperation and imposes unnecessary costs on government.
The review will not consider purely operational matters, including the funding of operational and administrative arrangements.
The review will consider the following issues (in addition to others that arise during the review and particular anomalies in the operation of the Acts):
(i) modernisation and streamlining of the operation of the Acts;
(ii) the scope and coverage of the Acts, including the circumstances in which assistance may be provided;
(iii) the optimum structure for the way in which the New Zealand Government as a whole provides assistance or facilitates extradition, and the role and responsibilities of particular Ministers, departments and agencies within the structure;
(iv) grounds for denying extradition and mutual assistance;
(v) authentication and admissibility of evidence/information required for an extradition or obtained pursuant to a mutual assistance request;
(vi) the form and procedure of eligibility hearings for extradition;
(vii) the relationship between the mutual assistance legislation and other regimes for the sharing of information relating to the investigation and prosecution of crime within the New Zealand Government and between New Zealand and other governments’ law enforcement agencies;
(viii) the relationship between the Extradition Act and treaty arrangements, including those inherited from the United Kingdom; and
(ix) review and appeal processes.
