Chapter 3
Giving effect to international obligations

Options for reform

Is there a need for reform?

3.73As explained in this chapter, the current Act is written as if bilateral treaties form its backbone. These treaties trump domestic legislation with the exception of only a limited number of provisions. The main advantage of this approach is that it allows for flexibility. It also reflects the principle of reciprocity, which has traditionally been the rationale for extraditions.117

3.74The advantages of having a treaty-based extradition regime, however, need to be balanced against the following practical realities:

3.75Bearing these observations in mind, we consider that it is not viable for New Zealand to have an Extradition Act that relies so heavily on bilateral treaties and that a move towards placing greater comparative reliance on the provisions of an extradition statute would be a more sensible option. Such a shift would have the added benefit of being in line with the current international trend towards viewing extradition as an important law enforcement tool of a good international citizen rather than as a purely reciprocal act of comity.

Our preferred approach: treaties can supplement the default extradition procedure in the ActTop

3.76In our view, the new extradition statute should be the primary source of New Zealand’s extradition arrangements, but the statute should be able to be supplemented in some key ways by the provisions of treaties.

3.77Both the United Kingdom and Canada have extradition regimes that rely more heavily on statute than on bilateral extradition treaties. The difficulty with the United Kingdom model, however, is that there is no scope for existing or future treaties to vary the statutory extradition process. This model works in the United Kingdom because it has renegotiated the vast majority of its old imperial treaties and has entered into new extradition arrangements with the European Union and the United States that align neatly with the 2003 Act. New Zealand needs a slightly more flexible extradition regime that can accommodate differences in state practices and laws in a similar way to the Canadian legislation.

3.78We therefore propose that bilateral treaties should continue to play a role in extraditions but by supplementing rather than overriding specific and limited provisions of the new Act. The Act should spell out which provisions can be affected by bilateral treaties and in what way. In our view, this approach should be adopted in relation to the same general range of provisions as those in the Canadian Act. In Canada, those are:

3.79We discuss how the new Act should treat these issues in more depth throughout this first part of the issues paper. To illustrate, in Chapter 5 we propose that the definition of “extradition offence” in a treaty may supplement the definition in our Act. Accordingly, the offence would need to meet either of the definitions in order to qualify for extradition. Regardless of which definition was found to apply in New Zealand, the request would continue to be processed in accordance with the Act.

117Under this principle, extradition operates on the basis that, when a country gives cooperation to another country, it does so on the understanding that it will receive similar cooperation in return: Scott Baker, David Perry and Anand Doobay A Review of the United Kingdom’s Extradition Arrangements (Home Office, 30 September 2011) at [3.25].
118It is unlikely that New Zealand will negotiate a comprehensive new round of bilateral extradition treaties. In relation to these treaties, there is an alternative option of unilateral termination by giving six months’ notice. This may actually benefit New Zealand’s treaty partners as, ironically, the legislative requirements for processing a one-off extradition request may be easier to meet than the terms of the treaties. Nonetheless, this option may be politically unpalatable.
119Section 3(1).
120Section 14(1)(b).
121Section 29(5).
122Section 32(1)(b).
123Section 33(4).
124Sections 46 and 47.
125Section 66(3).
126Section 80.