Chapter 5
Extradition offences

Current law

Extradition Act 1999

Extradition offences

5.3For the Extradition Act 1999 to apply, the request for extradition must relate to an “extradition offence”, as set out in section 4, unless an alternative formulation of extradition offence applies under an extradition treaty. An “extradition offence” under the Act requires:149
5.4This provision replaced the approach in the Extradition Act 1965 of listing specific offences.150 The current approach provides increased flexibility and responsiveness as it does not require the Act to be updated in order for new offences to be covered.

Where there is a bilateral extradition treaty

5.5The terms of a bilateral extradition treaty between New Zealand and a foreign country may alter the requirements of the section 4 definition of an extradition offence. As is common practice, the existing treaties contain definitions for “extradition offence” for the purpose of the treaty. Often this is in the form of a list of specific offences, but there may be other requirements about which offences are covered. Where a treaty does define “extradition offence”, the section 4 definition does not apply, as the Act must be construed to give effect to the treaty.151
5.6This creates three difficulties. First, given the age of most of New Zealand’s bilateral treaties, the list of offences may omit offences for which, in modern circumstances, extradition should be able to be sought or may include offences that are outdated. Second, the maximum penalty threshold in the Act will generally not apply. The exception is where the treaty was settled after the commencement of the Act.152 Third, dual criminality will not be required unless it is also explicitly included in the terms of the treaty.153 However, whether particular conduct is an offence in both countries will often have been taken into account during the treaty negotiation and drafting process in which the list of offences was drawn up.

Offences under multilateral treaties

5.7Some multilateral treaties to which New Zealand is a party require certain offences to be read into bilateral treaty obligations. Those offences are scattered across our statute book but are brought together in sections 101A and 101B of the Extradition Act.154 The multilateral treaties address international crime and include offences relating to:
5.8As the offences in sections 101A and 101B are offences under New Zealand law, the dual criminality requirement clearly applies to these offences already. Indeed, this is made explicit in relation to section 101B.155 The offences are all sufficiently serious to have a maximum penalty of imprisonment in excess of 12 months. This means that these offences will all also qualify as extradition offences for countries that are not a party to the relevant multilateral treaty.
149Extradition Act 1999, s 4.
150Scott Baker, David Perry and Anand Doobay A Review of the United Kingdom's Extradition Arrangements (Home Office, 30 September 2011) at [3.18] and [3.71]. The current New Zealand approach would be termed the “eliminative” method in the literature in contrast to the old “list” method.
151Extradition Act 1999, s 11; and Cullinane v Government of the United States of America HC Hamilton A116/00, 10 September 2001 at [12].
152Section 100 of the Extradition Act 1999 provides that the requirement that the offence must be punishable in New Zealand by a maximum penalty of imprisonment of not less than 12 months applies to any treaty settled after the commencement of the Act. The 12-month maximum penalty threshold was also included in New Zealand’s treaty with Hong Kong, which was negotiated in 1998 in contemplation of the requirements in the 1999 Act.
153The requirement that the conduct constituting the offence in the requesting country is also an offence in the requested country – a common feature of extradition legislation and treaties – is known as “dual criminality”.
154Extradition Act 1999, s 101A. This includes certain offences under the Aviation Crimes Act 1972, Misuse of Drugs Act 1975, Crimes (Internationally Protected Persons, United Nations and Associated Personnel, and Hostages) Act 1980, Crimes of Torture Act 1989, Maritime Crimes Act 1999, Crimes (Bribery of Foreign Public Officials) Amendment Act 2001, Terrorism Suppression Act 2002, Mercenary Activities (Prohibition) Act 2004, Films, Videos, and Publications Classification Act 1993, and Cultural Property (Protection in Armed Conflict) Act 2012.
155Extradition Act 1999, s 101B(3).