Chapter 3
Giving effect to international obligations

Treaties and the Extradition Act 1999

The policy behind the relationship

3.29During the 1980s and 1990s, there was a trend throughout the Commonwealth and international community towards modernising extradition law and practice.68 In keeping with this trend, the New Zealand Government introduced the Extradition Bill 1998.69
3.30The Extradition Bill proposed to continue the process of implementing bilateral treaties in New Zealand by way of Orders in Council. In terms of the relationship between the treaties and the Act, the policy behind the Bill was to allow the terms of the treaties to prevail where the terms were more detailed than the Act or where they contained supplementary matters. This policy intentionally sought to create a flexible legislative regime that would accommodate the negotiation of new bilateral treaties. As one commentator observed at the time:70

A dominant Act would greatly minimise opportunities for state by state flexibility in procedure, which is often regarded as one of the principal benefits of a treaty based system.

3.31The original Bill contained two clauses that aimed to clarify the paramount status of the treaties. Clause 14 gave the Governor-General the power to make an Order in Council applying Part 3 of the Act to any treaty country, subject to any “limitations, conditions, exceptions, qualifications or modifications” necessary to give effect to the treaty.71 Clause 16 of the Bill stated that the provisions of the Act must be construed to give effect to any applicable treaty, subject to the mandatory restrictions on surrender and the restrictions related to the death penalty and torture.72 These clauses highlight the difficult balancing exercise that was before the drafters. The Bill needed to reflect the policy goal of giving primacy to the terms of the treaties, but it also needed to be mindful of the constitutional principle that it is undesirable for legislation to contain a power to amend an Act by subordinate legislation (such as the Orders in Council implementing the treaties).73 ​The tension between these two factors resulted in significant amendments to the Bill during the Select Committee process.
3.32In the end, Parliament opted to retain only one clause to explain the relationship between future treaties and the Act. Originally, this clause had stated that the provisions of the Act must be construed to give effect to any applicable treaty, subject to the mandatory restrictions on surrender and the restrictions related to the death penalty and torture.74 During the Select Committee process, this was amended to more comprehensively set out the provisions in the Act that could not be overridden by a treaty. This approach had the added benefit of identifying New Zealand’s bottom line for future treaty negotiations.75

The relationship as enactedTop

3.33Section 11(1) of the Extradition Act 1999 provides that:

(1) If there is an extradition treaty in force between New Zealand and an extradition country, the provisions of the Act must be construed to give effect to the treaty.

3.34This section applies to treaties concluded both before and after 1999 and focuses attention of all litigation on the procedures in the treaties, but the Act then goes on to treat these two types of treaties differently in respect of grounds to refusal.

Post-1999 treaties

3.35Despite section 11(1), a post-1999 treaty cannot override certain provisions in the 1999 Act,76 including the mandatory restrictions for refusing to surrender, danger of torture or the prospect of death, or any provision in the Act that confers a particular function or power on the Minister or a court.

Pre-existing treaties

3.36The 1999 Act provides that the pre-existing treaties can override both the mandatory and discretionary restrictions in the Act and the Minister’s ability to refuse surrender in recognition of compelling or extraordinary personal circumstances.77 The reason for not subjecting the pre-existing treaties to the 1999 Act was that the 1999 Act re-expressed the reasons why New Zealand might refuse to surrender an individual in a way that might have been inconsistent with those earlier treaties.
3.37However, the 1999 Act provides that pre-existing treaties cannot be construed to override certain provisions of the 1965 Act.78 The relevant sections of the 1965 Act provide that key considerations cannot be overridden such as the mandatory restrictions in the Act, the prospect of a death sentence, and evidence of double jeopardy.

What those old treaties say about grounds for refusal

3.38The imperial treaties make it clear that a person should not be surrendered where:

The treaties also reserved the ability to refuse extradition if the person sought was a subject or citizen.

3.39These restrictions are reflected in the 1965 Act, along with some additional provisions that provide that surrender may be refused where the person may face torture79 or the death penalty80 and where the person is detained on the grounds of mental health after an acquittal or conviction for an offence in the requested country.81

3.40For extradition treaties negotiated after 1999, the 1999 Act provides that a person may not be surrendered where, among other things, the person may be prejudiced in trial or punishment on grounds of discrimination; the offence is a military offence; and the person may suffer injustice or oppression due to triviality, lack of good faith, or delay. In our view, these are important grounds for refusal that would possibly be read into the existing treaties, especially where they reflect modern human rights expectations.

3.41Accordingly, there are some important differences in the grounds of refusal depending on whether a treaty exists and when it was concluded. The risk of this approach is discussed in Chapter 8, which deals with the grounds for refusing surrender.

3.42For the sake of completeness, the other provisions in the Act relating to treaties are as follows:

3.43The list illustrates the complex nature of the relationship between the treaties and the Act. The provisions related to treaties are scattered throughout the Act and include deeming provisions89 and extensive cross-referencing and incorporate repealed legislation.90 Each of these three mechanisms creates problems of interpretation and accessibility and would be best avoided.
3.44The drafters of the Act envisaged that new bilateral extradition treaties would be negotiated91 and that these would potentially replace New Zealand’s 44 pre-existing bilateral treaties. However, only one bilateral extradition treaty has been successfully negotiated in the 15 years that the Act has been in force. By contrast, during that time, New Zealand has entered into numerous multilateral treaties containing extradition obligations. This trend probably reflects the changing priorities of the international community since 1999 as well as New Zealand’s relative geographic isolation.
3.45The Act’s approach to pre-existing bilateral treaties mirrors the Extradition Acts 1870 to 1935 (Imp)92 (which outlined a default position for the negotiation of the imperial treaties) and the Extradition Act 1965 (which did not substantially reform New Zealand’s extradition law). The difficulty, however, is that the language and content of those treaties are now, in some respects, out of date. This partially explains why section 11(1) has been somewhat difficult to apply in practice.

3.46The challenge is to find a solution that is flexible enough to ensure that the new Act can deal with the outdated aspects of the existing treaties, while respecting the agreements that form the basis of them, and at the same time provide for future extraditions and extradition treaties.

Difficulties with the relationship in practiceTop

3.47Two difficulties commonly arise in New Zealand in relation to extradition requests that are made pursuant to bilateral treaties:

3.48As indicated above, there is also an issue surrounding how extradition treaties currently impact on the available grounds for refusing surrender. That issue will be addressed in Chapter 8.

Definition of “extradition offence”

3.49We discuss the issues around how “extradition offence” should be defined in Chapter 5. Here, it is sufficient to note that, historically, the preferred method for defining extradition offence was simply to make a list of all the offences that would qualify (the list method). The list method is used in all of New Zealand’s bilateral treaties, except those recently negotiated with Hong Kong and the Republic of Korea. In contrast, section 4 of the Extradition Act defines an extradition offence by reference to a threshold maximum penalty (offences carrying a maximum penalty of not less than one year’s imprisonment). This is the more modern method. By virtue of section 11(1), the definition of extradition offence in the treaties automatically trumps the definition in section 4 of the Act.

3.50The traditional list method has two inherent flaws. First, it is not very adaptable. If an offence has been inadvertently omitted from the list, a new offence emerges, or an offence is no longer viewed as criminal, the list needs to be updated. This generally requires the negotiation of a supplementary treaty.

3.51New Zealand has not negotiated any supplementary treaties. Therefore, an undesirable situation now exists whereby extradition is only available under most of its existing bilateral treaties for approximately 20 offences. Murder and rape are commonly on these lists, but so are very narrow offences like committing a malicious act with intent to endanger the safety of a person travelling on a railway. Notably missing are all offences involving modern technology, such as crimes against privacy and computer-based offending.

3.52A second flaw with the list method is that it can lead to extensive litigation around whether the offence in question falls within the ambit of the relevant list. Such litigation involves complex analysis of the intention of the treaty partners and the exact meaning of legal terms in the different jurisdictions (including the history and evolution of those terms).

3.53This issue has frequently arisen in New Zealand in relation to extradition requests from the United States.93 In processing these requests, New Zealand courts have had to determine whether modern criminal offences in the United States (such as immigration fraud, racketeering, and online marketing of counterfeit drugs) are sufficiently similar to any of the offences listed in the bilateral treaty of 1970 to warrant extradition. The irony of this type of litigation is that it does not focus on the seriousness of the offending or on dual criminality – the two cornerstones of the definition of an extradition offence under New Zealand’s Extradition Act.94

3.54The recent proliferation of multilateral treaties has gone some way towards ameliorating this situation by deeming emerging serious offences, such as genocide, hostage taking and drug trafficking, to be extradition offences. This has the benefit of modernising some of the imperial treaties to an extent, but on the downside, it further disperses New Zealand’s extradition obligations.

3.55Section 60 of the Extradition Act aimed to resolve the problem entirely by giving New Zealand’s treaty partners the option of applying to use Part 5 instead of relying on their treaties. By virtue of Part 5, the more straightforward definition of extradition offence in section 4 of the Act would apply.

3.56The reality is, however, that none of New Zealand’s treaty partners has ever made an application under Part 5. Two possible reasons for this are immediately apparent. First, section 60 only applies if the offence in question does not meet the definition of extradition offence in an applicable treaty. Given the inherent uncertainty in these treaty definitions, a requesting country may not wish to make a concession in this regard. A second reason is that, by making an application under section 60, the treaty country would lose any perceived benefits that it had negotiated under their treaty and would instead be subject to the decision of the Minister to allow the extradition to proceed as an ad hoc request.

3.57The decision of New Zealand’s treaty partners not to use section 60 of the Act means that there is still an unresolved issue regarding how to minimise the difficulties caused by the narrow definition of extradition offence in most of the treaties.

The effect of treaties on procedural matters

3.58The drafters of the 1999 Act did not design the procedural aspects of the Act with specific reference to the terms of New Zealand’s existing extradition treaties. Instead, they drew on provisions from New Zealand’s domestic criminal procedure wherever possible. Accordingly, two sources of procedural rules for extradition have developed almost entirely in parallel.

3.59This has created the situation whereby it is sometimes difficult to determine whether a treaty substantively deals with a particular procedural matter and, if so, whether there is any inconsistency between the treaty and the Act, warranting the application of section 11(1). Issues that have arisen in recent litigation are:

3.60A related issue is the exact scope of the ability of treaties to override the Act on procedural matters given section 11(2)(b) (no treaty may override the rule governing the sufficiency of evidence) and section 11(2)(d) (no treaty may override a power conferred on a court or Minister).

68Commonwealth countries entered into numerous multilateral and bilateral treaties during this period, and several introduced new extradition legislation. For instance, between 1985 and 1998, Australia and Canada entered into bilateral treaties or other extradition arrangements with 14 and 42 foreign countries respectively, and in 1991, the United Kingdom ratified the European Convention on Extradition ETS 24 (opened for signature 13 December 1957, entered into force 18 April 1960), thereby terminating 20 of its pre-existing imperial bilateral treaties (but only in so far as they related to the United Kingdom). Further, Australia, the United Kingdom, and Canada introduced new extradition legislation in 1988, 1989, and 1999 respectively. For a list of the relevant multilateral treaties that were negotiated at this time, see Appendix C.
69Extradition Bill 1998 (146-1).
70Janice Brabyn “New Zealand Extradition Law” (LLM Thesis, Victoria University of Wellington, 1985) at 58–59.
71This clause was largely adopted from the Extradition Acts 1870 to 1935 (Imp) 33 & 34 Vict c 52 and the Extradition Act 1988 (Cth). In Commonwealth v Riley (1984) 5 FCR 8, the Federal Court of Australia considered the similar Australian provision and found that the words in the provision were all words of restriction and that, therefore, treaties were only capable of limiting provisions in the Extradition Act rather than extending them. This decision drew academic criticism.
72Clause 16 was based on an equivalent provision in the Extradition Act 1965. This provision was considered in the controversial Supreme Court decision of Mewes v Attorney-General [1979] 1 NZLR 648 (SC). In this case, Chiswell J held that a less demanding test for authentication in a treaty could not override a more demanding test in the Act as, in accordance with ordinary principles of interpretation, treaties may only be used to interpret a statute if the statute is first found to be ambiguous. Given the debates sparked by Mewes v Attorney-General and Commonwealth v Riley, above n 71, the drafters of the original Extradition Bill probably considered that both cls 14 and 16 were necessary to emphasise the paramount status of the treaties.
73The Regulations Review Committee highlighted this point in a submission to the Select Committee. It did not object outright to the clauses given the context of extradition but did note that the clauses “constitute a departure from normal principle and should do so only to the extent that is necessary and can be justified”. Regulation Review Committee Extradition Bill: Report from Regulations Review Committee (5 October 1998).
74Extradition Bill 1998 (146-1), cl 16.
75For a useful summary of the policy behind this aspect of the Extradition Bill 1998, see the speech given by the Hon Tony Ryall introducing the Select Committee Report on the Bill to the House: (16 March 1999) 575 NZPD 15367.
76Extradition Act 1999, s 11(2).
77Extradition Act 1999, s 105. Note that section 11(2) of the Extradition Act 1999 does not apply to pre-existing treaties because of section 11(3).
78Extradition Act 1999, s 105(2)(a).
79Extradition Act 1965, s 6(4).
80Extradition Act 1965, s 5A.
81Extradition Act 1965, s 5(4).
82Extradition Act 1999, s 2.
83Extradition Act 1999, ss 15 and 40.
84Extradition Act 1999, s 60.
85Extradition Act 1999, s 60(4).
86Extradition Act 1999, s 100. and
87Extradition Act 1999, s 101.
88Extradition Act 1999, ss 101A and 101B. These offences are listed and discussed further at [5.7]–[5.8].
89Extradition Act 1999, ss 101A and 101B.
90Extradition Act 1999, s 105(2)(a).
91See Extradition Act 1999, ss 100 and 101.
92Extradition Act 1870 (Imp) 33 & 34 Vict c 52.
93See Government of the United States of America v Jiang [2012] DCR 724; United States of America v Cullinane [2003] 2 NZLR 1 (CA); and Edwards v United States of America [2002] 3 NZLR 222 (CA).
94Extradition Act 1999, s 4. Section 4(2) requires that the conduct constituting the offence in the foreign country must also constitute an offence at the relevant time in New Zealand. This is the concept of “dual criminality”, which we discuss in detail in ch 5.
95Poon v Police [2000] 2 NZLR 86 (HC) at [47]. Section 18(2) provides:
(2) The request must be made––
(a) by a diplomatic or consular representative, or a Minister of the country that seeks the person’s surrender; or
(b) by such other means as is prescribed in a treaty (if any) in force between New Zealand and the extradition country or in any ​ undertakings between New Zealand and the extradition country;
96Muller v United States of America [2007] NZCA 376 at [4]; see also Poon v Police, above n 95, at [78] and [104]–[113].
97Bujak v District Court at Christchurch HC Christchurch CIV-2008-409-785, 8 October 2008 at [8].
98United States of America v Wong [2001] 2 NZLR 472 (HC) at [7]–[36]; see also Mewes v Attorney-General, above n 72.
99Dotcom v United States of America [2014] NZSC 24, [2014] 1 NZLR 355 at [167].