Chapter 3
Giving effect to international obligations


3.1Extradition in New Zealand is governed by a combination of domestic statute and international treaties. One of our objectives for this review is to appropriately align these.45
3.2At present, New Zealand is a party to 45 bilateral treaties that relate specifically to extradition46 and at least 25 multilateral treaties that contain extradition obligations.47 The relationship between these treaties and the Extradition Act 1999 is complex. Section 11(1) of the Act makes it clear that its provisions must be construed to give effect to the bilateral treaties.48 This means that the treaties take precedence over the Act in the event of an inconsistency. This general rule is subject to a limited number of specific exceptions.49

3.3There are difficulties with how this relationship works in practice. The vast majority of New Zealand’s current bilateral extradition treaties are between 80 and 140 years old and use language that does not align neatly with the Act. This has led to confusion in applying treaty definitions and in determining the exact nature of the applicable process. This confusion has led to litigation and delay, frustrating the main purpose of the bilateral treaties, which is to facilitate extradition.

3.4The challenge in this review is to give due regard to New Zealand’s international obligations and to provide an effective process that helps rather than hinders extradition. To achieve this, we suggest that the relationship needs to be modified. The new Act should set out an effective procedure for all extradition requests but also identify provisions that treaties may supplement. In this way, the Act will provide the primary basis for processing extradition requests, but where a bilateral treaty contains some provisions that differ from those in the Act, the Act will ensure that it gives appropriate recognition to New Zealand’s international obligations. This proposal reflects the approach currently taken in Canada’s Extradition Act 1999.

3.5At the end of this chapter, we briefly discuss two other Acts that aim to give effect to New Zealand’s international extradition obligations: the International Crimes and International Criminal Court Act 2000 and the International War Crimes Tribunals Act 1995.

45See Appendix A: Terms of reference, objectives (i) and (v) and scope of the review (iii).
46Appendix B.
47Appendix C.
48Extradition Act 1999, s 11(1). The definition of “extradition treaty” in s 2 of the Act indicates that s 11 only applies to bilateral extradition treaties, not to multilateral treaties. This interpretation is supported by the definition of “multilateral treaty” in s 60(5) of the Act.
49Sections 11(2) and (3) and 105.