8.8The bilateral treaties that pre-date the Extradition Act 1999 cannot be construed to override the mandatory restrictions on surrender in the Extradition Act 1965. These include political offence, detention because of mental health, double jeopardy, torture, and the death penalty.
8.10The first four grounds mirror the position under the treaties. The last three do not feature in the treaties so extend the grounds for refusal originally agreed between the treaty partners.
8.11The following table sets out the refusal grounds in the 1999 Act, who considers them, and the nature of the grounds.
| SECTION | GROUNDS | COURT OR MINISTER? | NATURE OF GROUNDS |
|---|---|---|---|
| 7 | Political offence Discriminatory purpose to prosecution or punishment Discrimination: prejudice in trial or punishment Military offence Double jeopardy Detention because of mental health Detention because of intellectual disability | Both | If present, decision maker “must not determine that the person is to be surrendered” A treaty cannot be construed to override them |
| 8 | Injustice or oppression due to:
| Both | If present, decision maker “may determine that the person is not to be surrendered” A treaty may be construed to override them |
| 30 | Restriction applied by the terms of a treaty Torture New Zealand citizenship Death penalty Injustice or oppression due to personal circumstances Speciality Any other reason | Minister | Mixture of grounds that require no surrender and that allow the Minister to determine that the person is not to be surrendered A treaty may be construed to override all except torture and death penalty grounds |
