Chapter 1
Review of the Extradition Act and Mutual Assistance in Criminal Matters Act

Our approach to the importance of human rights in this reference

1.27The Commission has taken the view that the protection of human rights is critically important in the investigation, prosecution and surrender of offenders. We have therefore carefully gone through each one of our proposals to consider the human rights implications, and have explicitly identified how we believe the interests of those who are being investigated, prosecuted or who are subject to surrender, are to be respected. Central to this consideration is, of course, to look at what is required by the New Zealand Bill of Rights Act 1990 (NZBORA) as well as New Zealand’s international obligations.

New Zealand Bill of Rights Act and extradition

1.28Our approach has been to make proposals that protect the rights of the person sought within the context of extradition. One of the difficulties with any such consideration is that extradition is its own subject area, not easily classified as civil or criminal, domestic or international, and any delineation of the correct protections needs to take account of values from quite different areas of law. Sections 24 and 25 of NZBORA provide important protections for those “charged with an offence”. By majority, the Supreme Court held that these two sections are not engaged in extradition proceedings because a person who is sought for extradition is not “charged with an offence” in the way those sections envisioned.8

1.29Our approach in this paper is to avoid determining how a person subject to an extradition proceeding should be treated by attempting to characterise it as criminal or civil proceeding. Instead, each aspect of the extradition proceedings should be evaluated within the special context of what is appropriate in extradition proceedings. This reflects the Supreme Court’s unanimous decision that the natural justice protections of section 27 of NZBORA did apply to extradition proceedings, and that this warranted a contextual examination of each stage of the process to determine what was required. In our view, the Extradition Act should, as far as possible, clearly set out what the accused can fairly expect at each stage of the proceedings.

1.30Other rights in NZBORA, and their underlying values, have also shaped the way that we have dealt with particular issues in this review, for example, the right not to be deprived of life.9 Although it has not been held conclusively that this right would prevent New Zealand extraditing someone who might be subject to the death penalty, in our view the Extradition Act should reflect this right and New Zealand’s commitment to the abolition of the death penalty by prohibiting such an extradition. In the same way, the degree to which the prohibition in NZBORA against “cruel, degrading, or disproportionately severe treatment or punishment”10 might prevent extraditions where there is a risk of such treatment, even though it is below the threshold of torture which is a ground for refusing surrender, has not been resolved by the courts. In our view, the Extradition Act should enable the courts to determine whether the possibility of such treatment should prevent an extradition.

New Zealand Bill of Rights Act and mutual legal assistanceTop

1.31Typically, mutual legal assistance requests involve traditional criminal procedures that are subject to the various protections that New Zealand accords all those who are being investigated by the Police or other law enforcement agencies. Our basic approach is that the same protections ought to apply in relation to mutual legal assistance requests as they relate to any domestic investigation. There are additional concerns that are unique in relation to mutual legal assistance requests. We have proposed that the Central Authority continue to have a strong role in requests under MACMA to ensure the rights of individuals in New Zealand affected by the request are sufficiently protected. This means that for the majority of MACMA requests, there will be two protections in place for those being investigated or prosecuted. First, they will be protected by the Central Authority which has a statutory mandate to consider the appropriateness of granting assistance, and may decline the request if it is not appropriate given underlying human rights values. Secondly, invasive assistance such as search or surveillance warrants will only be granted with court approval in the same way as domestic warrants. We have also been particularly conscious of the need to preserve the rights of those being investigated in relation to search and surveillance requests by proposing some additional considerations in respect of the role of foreign law enforcement officers and how seized, produced or created materials should be dealt with.

8Dotcom v United States of America [2014] NZSC 24, [2014] 1 NZLR 355.
9New Zealand Bill of Rights Act 1990, s 8.
10New Zealand Bill of Rights Act 1990, s 9.