Chapter 11
Extradition to New Zealand
11.2Part 6 of the Extradition Act addresses extradition to New Zealand. It sets out who has the authority to make a request to another country for the extradition of a person who is accused or has been convicted of an offence against New Zealand law and how such a request should be made. The procedures in Part 6 are subject to alternative procedures being prescribed in a treaty or arrangement with another country.
11.3Unlike the parts of the Act addressing extradition from New Zealand to another country, Part 6 is limited to a few procedural provisions rather than setting out the legal tests as to when extradition to New Zealand can occur. Where New Zealand makes a request for the extradition of a person from another country, it is that country’s extradition law and any treaty obligations that will dictate what information needs to be provided, what needs to be proved, and what the grounds for denying the extradition are.
11.4It seems necessary to continue to include an equivalent of Part 6 in any new Extradition Act in order to set out which New Zealand authorities can make a request and how. We are not aware of any significant problems with the operation of Part 6 of the Act, so at this stage, do not envisage that major reform is needed.
Who should make a request for extradition of a person to New Zealand?
11.5Section 61 of the Act requires that an extradition request by New Zealand must be made by either:
- the Minister of Justice for countries covered by the standard process under Part 3;
- the Commissioner of Police (or delegate) for countries covered by the backed-warrant process under Part 4; or
- if the law of the requested country requires the request to be authorised by some other specified person, that person.
The section also provides that a request can be made by anyone permitted by the law of the requested country, if there is no treaty or arrangement in place specifying who must make the request. The effect of this is that, if the law of the foreign country is silent on who can make the request, New Zealand law allows any person to make the request.
11.6This open position regarding who is authorised to make a request has led to different approaches being taken over time. Requests have been made by the Attorney-General, Solicitor-General, and Minister of Justice.
11.7It would be more satisfactory for the Act to be clear as to who should make a request where the law of the extradition country does not specify that a particular person must make the request. The most straightforward option is to make this a responsibility of the proposed central authority. The central authority would be in receipt of all of the relevant information and would have access to expertise at Crown Law to advise on the request. It makes little sense to require that a separate Minister make the request, as he or she would then need to be briefed, adding unnecessary time and complexity to an outgoing request. As with incoming requests and with the current law, we see no issues with the Commissioner of Police (or delegate) being able to make a request for a person from a Category 1 country to ensure that the streamlined process is retained for these countries.
Arrest warrantsTop
11.8The Extradition Act interacts with the Criminal Procedure Act 2011 in relation to arrest warrants for persons outside of New Zealand who are the subject of an extradition request from New Zealand. Generally, other countries’ extradition law will require that there is a New Zealand arrest warrant. For instance, under the Australian Extradition Act 1988 (Cth), the New Zealand arrest warrant must be endorsed by a magistrate or judge before an Australian arrest warrant can be authorised.
11.9Under the Criminal Procedure Act, in relation to any arrest warrant, the New Zealand Police must show that reasonable efforts have been made to serve the summons on a defendant. On its face, this requirement applies to arrest warrants in extradition cases also, where the defendant is outside of New Zealand. If a summons is to be served in the case of an extradition request, it must be done by the requested country’s authorities. This can only be done through a mutual legal assistance request under the Mutual Assistance in Criminal Matters Act 1992.
11.10The main problem with serving a summons on a defendant in another country is that there is a good chance that the person would flee the country as a result of being alerted to the extradition request. This would undermine the extradition proceedings. The new Extradition Act should therefore make it clear that it is not necessary to serve a summons for an arrest warrant for a person in another country who is the subject of an extradition request from New Zealand.
Certificates of time in custodyTop
11.11There is a technical issue relating to the formal provision of certificates recording the time a person has spent in custody overseas prior to extradition. These certificates are important, as they allow time spent in custody in the requested country to be considered as pre-sentence detention under the Parole Act 2002. Pre-sentence detention is deemed to be a part of the sentence served by an offender.
11.12In their experience with requests to the countries that fall under the backed-warrant procedure (Australia and the United Kingdom), the New Zealand Police have had considerable difficulty in obtaining these certificates. In practice, the Department of Corrections is able to obtain the required information directly from Interpol.
11.13The Extradition Act could better serve this process by setting out the means by which time in custody in the requested country can be officially notified in a more flexible way. This would ensure the Department of Corrections is able to receive official notification of the time spent in custody in the requested country for the purposes of the Parole Act.
SpecialityTop
11.14Section 64 of the Extradition Act 1999 provides that a person who is surrendered to New Zealand following an extradition request will not be tried for another offence committed before the surrender, unless the person has had the opportunity of leaving New Zealand or the country that surrendered the person consents to the additional prosecution.
11.15Many countries do not allow extradition to a country unless that country can guarantee speciality, as indeed New Zealand itself does in section 30(5). Section 64 usefully gives this guarantee to other countries in a way that is clear and unambiguous. It avoids the need for the other country to seek assurances about speciality from the New Zealand Government.
11.16The speciality requirement is not included in Australia’s Extradition Act 1988 (Cth) in regards to requests for extradition to Australia from New Zealand. Consequently, it is possible for a person extradited to Australia from New Zealand to be tried for offences that occurred prior to the extradition offence without having to give the person the opportunity to leave the country prior to being charged or getting consent from New Zealand. This cannot occur in the reverse situation when a person is extradited to New Zealand from Australia.
11.17It may be worth considering whether the speciality requirement should be omitted in the law applying to extradition to New Zealand from Australia. This would allow New Zealand to try extradited persons for other offences that occurred prior to the extradition once they have been surrendered by Australia. The trust, close proximity, mobility, and relatively high number of extraditions between the two countries may tell against the need for the speciality limitation.
Removals of foreign nationals after serving sentenceTop
11.18There is an issue with section 92 of the Act, which relates to the return of a person who has been extradited to New Zealand to face trial and is acquitted or completes his or her sentence. It should be clarified that a person who “ceases to be serving the sentence” includes a person who is on parole. Uncertainty with the current wording of this section has created difficulties for the New Zealand Police.
11.19Some of the technical requirements of Part 11 of the Extradition Act, which addresses the removal of foreign nationals from New Zealand, are currently creating practical difficulties for New Zealand authorities. The Parole Board is often willing to grant parole if it knows that a foreign national is going to be removed. However, the Minister cannot issue the removal order until the person ceases to be serving the sentence. In order to achieve the removal of a foreign national, New Zealand agencies must carefully coordinate their procedures and the practical arrangements, such as flights, availability of escorts, and transit and travel documentation, in order to achieve the tight 48-hour timeframe for the person to be removed following service of the removal order. These matters should be made more workable in a new Act.
Question
Q43 How do we need to adjust the law to deal with outgoing extradition requests from New Zealand?
