Chapter 3

Giving effect to international obligations

Options for reform

• Is there a need for reform?
• Our preferred approach: treaties can supplement the default extradition procedure in the Act

Is there a need for reform?

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

• Treaties have the potential to create countless different extradition processes for the New Zealand courts to apply, which can cause confusion, litigation, and delay.
• Treaties can quickly become outdated if they are not amended to reflect changes in the criminal offences and state practices of the treaty partners.
• New Zealand is a small and geographically isolated country, and it is unlikely that negotiating an extradition treaty with New Zealand is high on the political agenda of many foreign countries.118

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:

• the definition of “extradition crime”;119
• the timeframe for receiving an extradition request following the execution of a provisional arrest warrant;120
• treating a person convicted in absentia as an accused person for the purposes of the extradition committal hearing;121
• the admissibility of documents;122
• additional authentication for a record of the case;123
• some, but not all, of the mandatory and discretionary grounds for refusal;124
• the requirement for a specific assurance in relation to temporary surrender;125 and
• the rule of speciality.126

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.