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IP37 Extradition and Mutual Assistance in Criminal Matters

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Contents

General information
Call for submissions
Foreword
Acknowledgements
Chapter 1 - Review of the Extradition Act and Mutual Assistance in Criminal Matters Act
- Review process and this issues paper
- Principles behind our review
- Why the law of extradition and mutual assistance in criminal matters is important
- What is wrong with the current law?
- Principal proposals for a new Extradition Act
- Principal proposals for MACMA
- Our approach to the importance of human rights in this reference
Part 1 Extradition Act
Chapter 2 - Introduction to extradition
- What is extradition?
- How extradition law developed
- Elements of New Zealand's current extradition scheme
- Extradition Act 1999
- Extradition in practice
- This part of the issues paper
Chapter 3 - Giving effect to international obligations
- Introduction
- The treaties
- Treaties and the Extradition Act 1999
- Approaches to treaties in comparable jurisdictions
- Options for reform
- Extradition to the International Criminal Court or war crimes tribunals
Chapter 4 - Roles and responsibilities
- Introduction
- Summary of current roles and responsibilities
- A central authority for extraditions through the standard procedure
- Agency roles
- Ministerial roles
- Cabinet's role
- Judicial role
Chapter 5 - Extradition offences
- Introduction
- Current law
- Issues
Chapter 6 - Categorisation of countries
- Introduction
- Current categorisation
- The importance of categorisation
- How should the Act approach categorisation?
Chapter 7 - Inquiry into the case against the person sought
- Introduction
- Current New Zealand approaches
- International approaches
- Does New Zealand's approach need reform?
- Proposals and options for reform
Chapter 8 - Grounds for refusing surrender
- Introduction
- Existing grounds for refusal
- Features of grounds for refusal in other jurisdictions
- Summary of proposals
- Relationship between treaties and grounds for refusal in the Act
- Decision maker for the grounds for refusal
- Grounds under the Extradition Act
- Further grounds for consideration
- Is this step in the extradition process necessary for Category 1 countries?
Chapter 9 - Procedure
- Introduction
- The jurisdiction of the court
- The arrest warrant
- Bail
- Disclosure
- The substantive hearing
- Appeal
- The Minister's decision
Chapter 10 - Refugee proceedings and extradition
- Introduction
- International obligations
- Current law in New Zealand
- Interrelationship between refugee and extradition decisions and proceedings
- Possible reforms to the Extradition Act
- Disclosure of proceedings
Chapter 11 - Extradition to New Zealand
- Introduction
- Part 6 of the Extradition Act 1999
Part 2 Mutual Assistance in Criminal Matters Act
Chapter 12 - Introduction
- Overview
- The legislation
- Guiding principles of the MACMA review
- Layout of Part 2 of this issues paper
Chapter 13 - Giving effect to international commitments
- Introduction
- Key international commitments
- The relationship between New Zealand's international commitments and MACMA
- A new framework
Chapter 14 - The Central Authority
- Introduction
- Role of the Central Authority
- Who is best placed to undertake this function?
- Privilege
Chapter 15 - Grounds for refusing assistance
- Introduction
- Mandatory grounds
- Discretionary grounds
- Possible further grounds for refusal
- General issues
Chapter 16 - Proceeds of crime requests
- Introduction
- Background
- Foreign assistance provided by New Zealand
Chapter 17 - Search and surveillance requests
- Introduction
- Comparing the two regimes
- International obligations
- Necessary modifications to the domestic regime
- The Central Authority's gatekeeping role
Chapter 18 - Requests for information
- Introduction
- Processing requests
- Interviewing voluntary witnesses
- Provision of material lawfully obtained
Chapter 19 - Managing the overlap with inter-agency mutual assistance regimes
- Introduction
- Inter-agency mutual assistance regimes
- Interaction between MACMA and inter-agency regimes
- Options for reform
Chapter 20 - The ability of defendants to use MACMA
- Introduction
- New Zealand practice
- The Harare Scheme
- Approaches taken overseas
- Should defence requests be permitted?
- Our preferred approach
Chapter 21 - Procedural concerns
- Introduction
- New technology in the provision of evidence
- Urgent requests
- Cost contribution
Chapter 22 - Outgoing requests
- Introduction
- The value of Part 2
- Authentication and admissibility of documents received
Appendix A - Terms of reference
Appendix B - New Zealand's bilateral extradition treaties
Appendix C - Multilateral treaties containing extradition obligations
Appendix D - List of questions

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Chapter 20
The ability of defendants to use MACMA

New Zealand practice

20.4In 1994, a New Zealand defendant facing charges under the Customs Act 1966 applied to the High Court for it to use its inherent jurisdiction to, in effect, make a mutual legal assistance request to Hong Kong.897 The High Court found that its inherent jurisdiction did not extend to issuing such a request. The Court held that, in passing MACMA, Parliament expressed an intention that letters of request from New Zealand in criminal matters should be dealt with exclusively via the procedure in Part 2 of that Act.

20.5In reaching this decision, the High Court commented that nothing in MACMA suggests that the Attorney-General may only use his or her power to request assistance on the prosecution’s behalf. The Court opined that section 25(f) of the New Zealand Bill of Rights Act 1990 would be breached if the Attorney-General was satisfied that reasonable grounds existed in terms of obtaining evidence for a defendant in a criminal matter for use in a New Zealand court under section 11(1) of MACMA, but nonetheless declined to make a request.

897Samleung International Trading Co Ltd v Collector of Customs [1994] 3 NZLR 285 (HC).

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