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

Principal proposals for a new Extradition Act

An integrated scheme for extradition

1.9Our proposed new Act would provide for an integrated scheme that we consider would achieve the necessary and appropriate balance between protecting the rights of those whose extradition is sought and providing an efficient mechanism for extradition.

1.10The new Act would establish a central authority that would be responsible for receiving, managing, and executing standard extradition requests.2 More importantly, it would be the central authority’s role, in the first instance, to vet foreign countries’ applications. It would also be formally responsible for the oversight of the way in which extraditions are conducted in New Zealand. The New Zealand Police would continue to be responsible for the simplified backed-warrant procedure that currently applies to Australia and the United Kingdom.

1.11The new Act would provide for real protection of rights where necessary. Much of this would come from the role of the courts. The courts would be given a meaningful judicial role in evaluating the appropriateness of any evidence of the offending but one that does not go as far as requiring a pre-emptive trial of the case in New Zealand. It is an important feature of the nature of extradition proceedings that the person against whom extradition is sought is not on trial. Evaluating the strength of the evidence in determining the guilt or innocence of the person is to be left to the trial in the requesting country.

1.12The proposed scheme under the new Act would also meet New Zealand’s international obligations by giving effect to the underlying intention of its extradition treaties, that is, to enable extradition to occur without being complicated by technically confusing treaty texts, most of which were settled over 80 years ago. The new Act would present the interrelationship between the statute and treaties clearly, with the statute being the primary source of extradition law in New Zealand.

1.13The new Act would give to the court the sole responsibility for considering nearly all of the grounds for refusing surrender.3 Only a few grounds would be reserved for sole consideration by the Minister. This would allow the significant matters of the personal circumstances of the individual sought for extradition, the values of New Zealand’s legal system, and the human rights and justice system record of the requesting country to be considered directly and openly.

Reducing complexity in the way that we treat foreign countries’ requestsTop

1.14The current Act seeks to give direct effect to the treaties that New Zealand has either inherited or concluded.4 This has made the technical requirements of those treaties the major focus of much of the extradition litigation that has occurred, causing considerable delay. Moreover, the current Act uses a complex categorisation system to decide which aspects of the Extradition Act regime will apply to which countries in a way that does little to help the underlying sense of the scheme.

1.15Our proposed reforms aim to make it clearer how international obligations might supplement the extradition obligations in the new Act.

1.16Under the new Act, countries would continue to be categorised based on their relationship to New Zealand, and that categorisation would influence how an extradition request is advanced. However, there would be a simpler two-category approach to categorising countries. Category 1 would comprise a small group of New Zealand’s closest extradition partners, and Category 2 would include all other countries.5
1.17There would be distinct requirements and procedures for the two categories.6 There would be no evidential inquiry into requests from countries in Category 1. For countries in Category 2, the Act would allow a country to present to the court a summary of the evidence against the person sought (the “record of the case”) on which the court would determine eligibility for extradition.

Reducing delayTop

1.18Under the current Act, there is considerable opportunity for delay and multiple considerations of decisions. Our proposals would increase efficiency and enable foreign countries to better cooperate with New Zealand. Under the proposed scheme, we intend that there be one appeal route rather than encouraging the multiplicity of appeals, judicial reviews, and habeas corpus applications.7 We do not think that it is appropriate to remove habeas corpus or judicial review procedures, but we prefer to make the possibility of such off-track reviews as irrelevant as possible.

1.19There would also only be one decision maker for each ground of refusal to surrender for extradition. However, the grounds would be flexible enough to provide appropriate protection of rights. While we intend that, in cases that do not involve Australia, the United Kingdom or other Category 1 countries, a judge would still review the evidence proffered, we propose amending admissibility and form of evidence requirements to allow a summary of evidence to be presented. It is true that this inefficiency provides a protection of its own to those whose extradition is requested, but we have taken the view that each matter should be properly considered by the person, body, or court best able to make that decision, subject to an appropriate right of appeal.

1.20Extradition is a process that must operate efficiently from the perspective of the requesting country, reflect New Zealand’s own concerns about law enforcement, and protect the rights of the accused through that process.

2Discussed in ch 4.
3Discussed in ch 8.
4Discussed in ch 3.
5Discussed in ch 6.
6Discussed in ch 7.
7Habeas corpus is an ancient common law procedure requiring the government to show cause as to why someone is imprisoned.