Chapter 8
Grounds for refusing surrender
8.38This section of the chapter discusses each of the existing restrictions and grounds for refusing surrender from sections 7, 8, and 30 of the 1999 Act.
Section 7 restrictions
8.39Most of the section 7 restrictions on surrender cannot be modified or removed from application by an extradition treaty. Our general approach is that the current restrictions on what a treaty can be construed to override should be maintained and quite possibly extended. Consequently, we propose that the section 7 restrictions should continue to be in this category. All of the grounds for refusing surrender in section 7 are of such significance to the basis on which international cooperation in extradition occurs or to the values of the New Zealand criminal justice system that it is essential they are upheld. Thus, we see no reason to alter this status.
Political offence
8.40Section 7(a) provides that a mandatory restriction exists where:
the offence for which the surrender is sought is an offence of a political character;
8.41The prohibition on extradition for political offences has been in extradition statutes since they were first developed in the 19th century. The restriction applies when the requested person is at odds with the requesting state and, as a result, the extradition is sought for reasons other than the enforcement of the ordinary criminal law. The rationale behind it is that it is inappropriate to punish resistance to political oppression and that “governments should not intervene in the internal political struggles of other nations”.
8.42As a result of growing international terrorism in the latter part of the 20th century, countries have limited the ambit of the political offence exception to ensure that terrorists could be brought to justice despite crossing national borders. Multilateral conventions have excluded terrorism offences, genocide, torture, and hostage-taking from the exception. In its 2003 Extradition Act, the United Kingdom took the step of removing the political offence exception entirely.
8.43New Zealand’s legislation does not define or limit what is meant by “political character”. The provision has not been considered by the courts in New Zealand, and it is unclear what offences are currently covered. Much of what was previously intended to be protected by the political offence restriction is now covered by human rights safeguards, such as the protection against extradition based on discrimination for political opinions (discussed below). Furthermore, where the offence in question is a political offence that has no equivalent in New Zealand, the dual criminality restriction could be used to refuse the extradition. It could be considered worthwhile retaining the political offence restriction to provide a safeguard in case there is any type of political prosecution that does not fall within one of the other restrictions, but this may not be necessary. It may also have symbolic value in clearly illustrating what extradition cannot be used for, despite being of little practical importance in New Zealand.
8.44One way of modernising this provision, if it is to be retained in new extradition legislation, is to include a definition of “political offence” in the Act, as is the case in the Australian and Canadian Extradition Acts. The London Scheme also limits the offences to which the exception can apply. Such a definition could exclude an offence mentioned in a multilateral extradition treaty to which New Zealand is a party and could list offences that, because of their serious nature, will never constitute a political offence, such as murder or other acts of violence. One of the purposes of such definitions is that an alleged political motivation might be used to mask an act that is in fact simply a crime and, at that, often a grievous act of terrorism.
8.45Although this ground does not add much practically, the values and history behind it are important enough that there is benefit in retaining it. Provided the ground is well defined, achieved by including a definition of “political offence”, there is no danger of people avoiding extradition simply because there is a political motivation for a crime.
8.46Notably, this ground for refusal is in all of New Zealand’s bilateral extradition treaties so no issue of inconsistency needs to be addressed.
Question
Q18 Should “political offence” be retained as a ground for refusal, and should a definition of “political offence” be added in the new Extradition Act?
Discrimination
8.47Subsections 7(b) and (c) provide that mandatory restrictions exist where:
(b) the surrender of the person, although purportedly in respect of an extradition offence, is actually sought for the purpose of prosecuting or punishing the person on account of his or her race, ethnic origin, religion, nationality, sex, or other status, or political opinions, or for an offence of a political character;
(c) on surrender, the person may be prejudiced at his or her trial or punished, detained, or restricted in his or her personal liberty by reason of his or her race, ethnic origin, religion, nationality, sex, or other status, or political opinions;
8.48The wording of these restrictions on surrender on the basis of discrimination is substantively the same as those in the Commonwealth jurisdictions to which New Zealand is commonly compared. The reason is that the principle is included in the London Scheme and has its genesis in the fugitive offender legislation that applied to extradition between Commonwealth nations. In reviewing their extradition legislation, none of these countries has altered or removed this ground.
8.49There is no question that these discrimination restrictions should remain mandatory restrictions in New Zealand. They provide important human rights safeguards and allow the New Zealand Government to refuse extradition where it would conflict with important values in New Zealand’s justice system and society. The ground also aligns with New Zealand’s international human rights obligations, including the International Covenant on Civil and Political Rights (ICCPR). This is a widely ratified multilateral treaty, and while the discrimination provisions do not expressly refer to extradition, an obligation not to extradite a person in these circumstances may exist. Further, all of New Zealand’s current bilateral treaty partners have ratified the ICCPR. For these reasons, it is appropriate that this ground apply to every extradition request, whether a bilateral extradition treaty is silent on this issue or not.
8.50While the lists of factors for discrimination in subsections (b) and (c) contain the “or other status” catch-all, the provisions could be modernised by the inclusion of further factors now commonly included in discrimination exceptions to extradition. One of these is sexual orientation, which is now included in the Australian, Canadian, and United Kingdom Extradition Acts. The Canadian Act also includes age and mental or physical disability as further bases of discrimination. It is clear that the New Zealand provisions are already intended to be broad and inclusive in order to provide a firm bar against extradition where the prosecution, trial, or punishment is discriminatory, thus explicit recognition of these further bases of discrimination would not be an extension of the current law. Explicit inclusion would also be consistent with the Human Rights Act 1993.
8.51This ground can appropriately be determined by a judge. It requires an assessment of the likelihood of the discrimination occurring. The House of Lords considered an equivalent United Kingdom provision in Fernandez v Government of Singapore and found that this factor required a balancing of the gravity of the consequences of either returning or not returning the person to the requesting country with the likelihood of the discrimination occurring. It was enough to prevent surrender that there was a “reasonable chance” or “serious possibility” of discrimination The United Kingdom courts have also found that it is necessary for the court to assess the state of mind of the prosecuting authority under the provision equivalent to section 7(c).
Question
Q19 Should the current list of discriminatory factors for refusing surrender be extended in the new Extradition Act?
Military offence
8.52Section 7(d) provides that a mandatory restriction exists where:
the conduct for which the surrender is sought would have constituted an offence under military law only and not an offence under the ordinary criminal law of the extradition country;
8.53While many early extradition treaties were intended to enable the return of military deserters, the modern approach in extradition statutes and treaties has been to exempt military offences from extradition. The reason for this exclusion is that military offences do not fit well within the purpose of extradition arrangements, which involve cooperation between countries to combat crime. Military offences that are not also an offence under the ordinary criminal law generally relate to matters of military discipline rather than crime.
8.54This restriction does not appear to have ever been relied upon in New Zealand. While extradition should not occur simply for the purposes of military discipline, there is a question as to whether the military offence exemption is relevant and necessary. Some modern extradition arrangements, for instance, the Framework Decision on the European Arrest Warrant, have left the military offence exception out of extradition legislation, as it has little or no practical impact on extradition.
8.55It seems that the exclusion of military-only offences could be addressed in the definition of an “extradition offence”, in which case, it would not be a matter for the eligibility stage of the court’s enquiry or the Minister’s discretion. This is similar to the approach taken in the United Kingdom, where the exception for military offences is not included under the “bars to extradition” but rather in defining what an extradition offence is. Our proposal will not affect New Zealand’s existing bilateral extradition treaties, as these treaties were not previously subject to this restriction.
Question
Q20 How should the exclusion of military-only offences be dealt with in the new Extradition Act?
Double jeopardy
8.56Section 7(e) provides that a mandatory restriction exists where:
the person has been acquitted or pardoned by a competent tribunal or authority in the extradition country or New Zealand, or has undergone the punishment provided by the law of that country or New Zealand, in respect of the extradition offence or another offence constituted by the same conduct as constitutes the extradition offence;
8.57The same rule is affirmed in New Zealand domestic law, in section 26(2) of the New Zealand Bill of Rights Act 1990 (NZBORA): “No one who has been finally acquitted or convicted of, or pardoned for, an offence shall be tried or punished for it again.”
8.58The objective of the double jeopardy principle, in extradition law, is to ensure that a person is not prosecuted on the same facts in more than one country. As a part of international extradition cooperation, there is an understanding that countries must demonstrate mutual trust in each other’s criminal justice systems.
8.59New Zealand’s double jeopardy exception to surrender is effectively identical to that in the Australian Extradition Act. The provisions refer only to the person being acquitted, pardoned, or punished for the offence in either the requesting country or the requested country. Neither provision states whether the restriction applies where the previous acquittal, pardon, or punishment took place in a third state. The Australian Attorney-General’s Second Reading Speech to the Extradition Bill 1987 illustrates that it was a deliberate choice to leave open the possibility of extraditing where there had been a third country pardon or acquittal. The New Zealand legislation does not currently provide a ground for refusing surrender where there has been a previous acquittal, pardon, or punishment in a third country, and it is unclear how decision makers would handle such a case.
8.60Some countries take a different approach in their extradition legislation by explicitly including third country actions in the double jeopardy exception. This is the approach taken in the London Scheme. In both Canada and the United Kingdom, the double jeopardy ground for refusal relies on consideration of whether their own double jeopardy laws would require the person to be discharged if the person were being tried domestically for the offence that is the subject of the request. This removes the need to spell out whether the exception applies to actions in third countries.
8.61This more flexible approach imports a country’s domestic double jeopardy law as the standard that must be met in determining whether there is a ground for refusing extradition, which makes the task more familiar to the courts. A key advantage is that this allows the subtlety of domestic double jeopardy law to be available to the extradition consideration. For instance, in the United Kingdom, extradition is barred under this ground where either the later alleged offence is the same as the earlier offence in both fact and law, or using a broader discretionary jurisdiction based on abuse of process, where a prosecution is based on substantially the same facts as were relied on in the earlier prosecution. It has become more common for countries to recognise exceptions to the double jeopardy rule where it would be in the interests of justice. Extradition law should take account of the subtleties of domestic double jeopardy.
8.62Double jeopardy is an important ground for refusal, but we do not think New Zealand’s legislation should not be prescriptive. The ground should allow flexibility about the concept of double jeopardy.
8.63The double jeopardy rules that apply in the New Zealand domestic context, which must be in line with section 26(2) of NZBORA, are a good benchmark of what should be acceptable in the extradition context.
8.64This restriction involves matters with which the courts are familiar, although the additional element of a foreign country’s criminal law undoubtedly makes consideration more complex. It involves a finding on the evidence that a person has already been tried and punished, discharged, or pardoned for the crime concerned. This does not seem to be an issue that requires the involvement of the Minister.
8.65Our proposals will not affect New Zealand’s existing bilateral extradition treaties, as these treaties all contain a restriction regarding double jeopardy. The treaties must be interpreted broadly, so this should provide sufficient scope for application of the definition in the Act without violating the obligation under the treaty.
Question
Q21 How should the new Extradition Act deal with the double jeopardy ground for refusal?
Detention because of mental health or intellectual disability
8.66Subsections 7(f) and (g) provide that mandatory restrictions exist where:
(f) the person is detained in a hospital as a special patient within the meaning of that term in
section 2(1) of the Mental Health (Compulsory Assessment and Treatment) Act 1992;
8.67These provisions are designed to protect individuals from extradition in cases where it is considered inappropriate to punish a person for a crime in New Zealand and would therefore, likewise, be inappropriate to extradite. Both subsections apply a statutory test that is straightforward and clear. These matters are clearly within the bounds of what the court can effectively address without the need for consideration by the Executive.
8.68While these provisions seem to be unique to New Zealand’s legislation, they should be retained. It may be that other jurisdictions rely on either a decision maker’s general discretion to refuse extradition or human rights grounds for refusing extradition in this type of situation.
8.69There is a concern, however, that the provisions are overly narrow in that they require that a specific order has been made and the person is being detained. This will only have come about where there have been other criminal proceedings against the person in New Zealand. However, there may be other instances where a person’s mental health or intellectual disability is such that the courts ought to protect that person from extradition. Rather than relying on the orders in the Mental Health (Compulsory Assessment and Treatment) Act 1992 or
Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, a more general test could be included in the Extradition Act. For instance, the Act could state that extradition must be refused if the person is “unfit to stand trial or insane within the meaning of section 23 of the Crimes Act 1961” with regard to any offence. An even wider option might be to prevent the extradition of anyone subject to a compulsory treatment order under sections 29 or 30 of the Mental Health (Compulsory Assessment and Treatment) Act. Alternatively, an expanded ground for refusing extradition based on injustice or oppression may cover these circumstances.
8.70New Zealand’s bilateral extradition treaties contain a ground for refusal that applies where the person sought is still the subject of proceedings in the requested country. We consider that this ground can be interpreted broadly enough to encompass persons detained for reasons of mental health and intellectual disability. Therefore, there is no conflict between our proposals and New Zealand’s existing international obligations.
Question
Q22 Should the basis for the application of the mental health or intellectual disability ground for refusal be expanded in the new Extradition Act? If so, what is the best way of doing this?
Section 8: Discretionary restrictionsTop
8.71Unlike the restrictions in section 7, all of the section 8 restrictions on surrender may be overridden by a bilateral extradition treaty. We consider whether this should continue to be the position in relation to the restrictions discussed below.
Injustice or oppression
8.72Section 8(1) provides that a discretionary restriction exists where it would be unjust or oppressive to surrender a person because of:
(a) the trivial nature of the case; or
(b) if the person is accused of an offence, the fact that the accusation against the person was not made in good faith in the interests of justice; or
(c) the amount of time that has passed since the offence is alleged to have been committed or was committed,
8.73This provision allows the decision maker to consider whether the particular circumstances of the case result in injustice or oppression and whether any such injustice or oppression warrants the extradition being barred. This provision provides an important check on extradition by allowing the decision maker to examine the particular circumstances of the individual’s case. These grounds appear to encompass a central part of the decision maker’s role in checking whether extradition is warranted.
8.74The provision is relatively narrow, being confined to the three grounds listed. The injustice or oppression element is designed to ensure that the grounds in and of themselves are not conclusive.
8.75A few New Zealand cases have addressed section 8(1), with the passage of time being the ground most often considered. In one example, Wolf v Federal Republic of Germany, the Court of Appeal considered that the person who was the subject of the extradition request could not rely on an argument that too great a time had passed between the alleged offending and the extradition, because he had entered and lived in New Zealand under a false name. The Court found that section 8 only applies where there is a clear nexus between the circumstances relied upon and the statutory criteria that form the basis of the argument.
8.76The injustice or oppression ground for refusing extradition can be found in the London Scheme for Extradition within the Commonwealth and has been incorporated within a number of Commonwealth countries’ extradition legislation. This express limitation to extradition is now mostly confined to Commonwealth countries’ extradition law.
8.77Different countries have different variations on the injustice and oppression ground for refusal. Australia only incorporates it by way of regulation in relation to agreements with specific countries or groups of countries. The United Kingdom has injustice or oppression restrictions in the circumstances of delay, and physical and mental condition. The equivalent Canadian ground is unbounded by particular circumstances. Further, the courts in both the United Kingdom and Canada are empowered to refuse extradition where it would be inconsistent with core human rights norms as found in the European Convention on Human Rights and the Canadian Charter of Rights and Freedoms. In both cases, matters involving injustice and oppression are able to be raised through human rights arguments.
8.78The injustice or oppression ground should not be limited to particular circumstances. It should be wide enough to catch all circumstances where extradition would be unjust or oppressive. The provision could continue to list particular circumstances but could also include a general ground such as “any other sufficient cause”, which is the wording used in the London Scheme. The expanded ground should then be able to encapsulate two further discretionary grounds for the Minister, discussed below – “compelling or extraordinary personal circumstances” and “any other reason”.
8.79There has been considerable case law on the injustice and oppression ground of refusal, which would help guide the New Zealand courts if the ground is broadened. The words “unjust” and “oppressive” were defined by Lord Diplock in Kakis v Government of Cyprus in the following way:
“Unjust” I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, “oppressive” as directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration; but there is room for overlapping, and between them they would cover all cases where to return him would not be fair.
8.80In Canada, the arguments under the injustice and oppression ground are often equated with arguments regarding rights under section 7 of the Canadian Charter (the right to life, liberty, and security of person). The types of factors that the courts have found must be considered under this ground include humanitarian issues such as the person’s age, health, and family circumstances; the severity of the penalty; abuse of process; the criminal justice system and conduct of proceedings in the requesting country; the timeliness and manner of prosecuting in Canada; and the extradition partner’s status as a responsible member of the international community. The courts have found that the Minister of Justice, who is the decision maker on grounds to refuse surrender, has the task of balancing the individual’s personal circumstances against factors militating in favour of extradition.
8.81The Canadian case law in relation to the application of section 7 of the Charter to extradition has said that the circumstances warranting a refusal to extradite must “shock the conscience” or be “simply unacceptable”. This high threshold that must be met before this ground will apply is also evident in United Kingdom case law. For instance, in finding that a delay has been unjust or oppressive, it must be asked whether a fair trial was impossible.
8.82A broad injustice or oppression ground in New Zealand should similarly have a high threshold and should not be a means by which individuals could unjustifiably delay proceedings by raising dubious bases of injustice or oppression.
8.83These are the types of matters that courts are familiar with addressing in domestic cases. The type of decision under this ground can be compared to the role of the Immigration and Protection Tribunal under the Immigration Act 2009, which is given a broad jurisdiction to consider a range of factors, including humanitarian grounds, in deciding appeals on immigration decisions. The Tribunal is considered to be an appropriate forum for this type of decision in that context.
8.84The injustice and oppression ground should be incapable of being overridden by an extradition treaty. This would accord with the way the New Zealand courts currently address these matters. In Bujak v Republic of Poland, it was found that the discretionary restrictions in section 8 did not apply because they were overridden by the terms of New Zealand’s extradition treaty with Poland. This meant that Mr Bujak’s arguments based on delay could not proceed under section 8. However, the Court of Appeal found that it could consider undue delay as an aspect of abuse of process under the court’s inherent jurisdiction on the basis that the court in extradition proceedings has the same powers as in a preliminary hearing in domestic criminal proceedings. The Court’s decision means that the passage of time aspect of the injustice and oppression ground is already treated as effectively non-excludable.
Question
Q23 Should the injustice or oppression ground for refusal be expanded in the new Extradition Act?
Prosecution in New Zealand
8.85Section 8(2) provides:
A discretionary restriction on surrender exists if the person has been accused of an offence within the jurisdiction of New Zealand (other than an offence for which his or her surrender is sought), and the proceedings against the person have not been disposed of.
8.86Under this ground, extradition may be refused where a prosecution for a New Zealand offence is pending against the individual sought for extradition. This cannot be the same offence for which extradition is sought.
8.87Section 8(2) is an unusual provision, and comparable jurisdictions do not provide for this ground. While it seems sensible that the New Zealand authorities should be able to address any outstanding charges in New Zealand before extraditing a person, this does not seem an appropriate factor to include in the grounds for refusing surrender. It is better dealt with as a procedural aspect of the extradition and could be addressed through section 32, which allows the Minister to delay or refuse surrender where a person is liable to be detained in prison because of a sentence for a New Zealand offence.
Question
Q24 How should the new Extradition Act deal with the situation whereby a prosecution for a New Zealand offence is pending against the individual sought for extradition?
Section 30: Minister-only grounds for refusalTop
8.88Section 30 contains further grounds on which the Minister of Justice can refuse to surrender a person for extradition. Some of these grounds direct that the Minister must refuse extradition if certain circumstances are present, while others may or may not result in a refusal to extradite even if they do apply. Two of the grounds, torture and the death penalty, cannot be overridden by a bilateral extradition treaty, while the remainder of the Minister’s grounds can be. In the discussion of each ground, we consider whether a treaty should be able to be construed to override the ground of refusal.
Any mandatory restriction applied by treaty
8.89Section 30(2)(ab) provides that the Minister must not determine to surrender a person if:
the Minister is satisfied that a mandatory restriction on the surrender of the person applies under the provisions of the treaty (if any) between New Zealand and the extradition country;
8.90This provision allows bilateral extradition treaties to contain additional mandatory restrictions on surrender. A new Extradition Act should have a clear and comprehensive list of grounds for refusal that cannot be altered by treaty. We consider that it will be necessary to continue to have a provision like section 30(2)(ab) that requires a further mandatory restriction from a treaty to be applied.
8.91We see no reason why the court should not apply grounds for refusal that stem from treaty obligations, unless they are specifically reserved for a Government Minister in the treaty.
Torture
8.92Section 30(2)(b) contains a prohibition against extradition when there is a strong risk of torture in the requesting country. The Minister must refuse to surrender if:
it appears to the Minister that there are substantial grounds for believing that the person would be in danger of being subjected to an act of torture in the extradition country;
8.93This prohibition ought to be retained, but there are two questions for possible reform. First, should that decision continue to be made by the Minister, or should it be considered by the court as part of its consideration of the application? Second, should the exception be expanded to include inhuman treatment that might not rise to the standard of torture but would nevertheless be unacceptable if it occurred in New Zealand?
8.94The current provision reflects New Zealand’s international commitment in the Convention against Torture not to extradite “where there are substantial grounds for believing that [the person] would be in danger of being subjected to torture”. Torture is defined as:
any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
8.95That convention contrasts torture with “other acts of cruel, inhuman or degrading treatment or punishment” that do not amount to torture and places on members an obligation to prevent such treatment in their own jurisdiction.
8.96New Zealand is also committed under the International Covenant on Civil and Political Rights not to subject anyone to “torture or to cruel, inhuman or degrading treatment or punishment”. Both commitments are reflected in NZBORA, which prohibits torture or cruel treatment generally in section 9 and requires in section 23(5) that “everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person”.
8.97The Australian Extradition Act contains a similar mandatory ground to that in the New Zealand Extradition Act, while both the Canadian and United Kingdom Acts do not have such a prohibition. In the case of the United Kingdom, an extradition must be consistent with the Human Rights Act 1998 (UK) and the European Convention on Human Rights that it incorporates. Under the Canadian statute, such an extradition would be subject to the direction that the Minister of Justice should refuse extraditions if it would be “oppressive having regard to all the relevant circumstances”. In relation to potential treatment that does not amount to torture, there is considerable case law in the United Kingdom and in Europe as to what might amount to a “real risk of ill-treatment of the requisite degree of severity in the receiving state”.
8.98There is no question that the prohibition on extradition where there is a substantial risk of torture should be maintained. It is required by both New Zealand’s international obligations and New Zealanders’ expectations. The Convention has been ratified by all of New Zealand’s existing bilateral treaty partners, so no issue with consistency with those treaties arises.
8.99As with the injustice and oppression ground, the type of consideration required under this ground is likely to be suitable for a court and has long been considered by courts in other countries.
8.100The current provision could be expanded to include treatment that might amount to breaches of section 9 of NZBORA. This might, however, detract from the simplicity of the current drafting. It may also create a consistency issue with New Zealand’s existing bilateral treaties, as extradition may be sought by countries that do not treat prisoners as New Zealand would, and the expanded ground might then raise the possibility that an extradition will be prohibited on that basis, despite the treaty relationship.
8.101Another alternative would be to add cruel and inhuman treatment falling short of torture as a factor that the decision maker must consider before deciding on extradition. Arguably, such matters can currently be considered by the Minister under the general discretion to refuse extradition “for any other reason” in section 30(3)(e). There may be some advantage in expressly acknowledging this as a ground of potential refusal, either in its own right or under the rubric of a general “injustice and oppression” ground. This may, however, raise an issue of consistency with New Zealand’s existing bilateral treaties.
Question
Q25 How should the torture ground for refusal be addressed in the new Extradition Act?
New Zealand citizenship
8.102Under section 30(2)(c), the Minister is required not to surrender a New Zealand citizen if either the applicable bilateral extradition treaty, an Order in Council designating the requesting country for extradition using the standard procedure, or a specific undertaking or arrangement with the requesting country provide that no New Zealand citizen may be surrendered. If such a treaty, Order in Council, or undertaking or arrangement does not preclude the surrender of New Zealand citizens, the Minister has the discretion under section 30(3)(c) to nevertheless refuse to surrender the person if it would not be in the interests of justice to do so.
8.103Generally, New Zealand extradition law has followed the common law tradition of not distinguishing New Zealand citizens and non-citizens for the purpose of extradition. The basis for this principle is that persons who have committed an offence should generally by tried and punished by the criminal justice system of the jurisdiction in which they committed the crime. These provisions are an exception to this principle where a particular extradition relationship with a country has required this limitation to be included, most likely to reciprocate the requirement of extradition with that country. Where a country is covered by the Act as a backed-warrant country, because it is a Commonwealth country or because the Minister has extended coverage to the country for an individual request under Part 5, there is no discretion to refuse extradition on the grounds that the person is a New Zealand citizen.
8.104We can see no reason why the general approach should be altered. New Zealand law generally does not distinguish between citizens and residents, particularly in terms of the rights and protections available to each. This seems to be an important value to uphold in New Zealand’s extradition law. Furthermore, any distinction in treatment between New Zealand citizens and others may be in breach of the right to freedom from discrimination under NZBORA and the Human Rights Act 1993.
8.105However, it may be that the possibility of this ground being included in the extradition arrangements between New Zealand and another country needs to be preserved in order to implement those arrangements. We propose that this ground is combined with the treaty restriction ground, currently in section 30(2)(ab) and discussed above, rather than being a separate ground for refusal.
Question
Q26 How should the restriction on extraditing New Zealand citizens be addressed in the new Extradition Act?
Death penalty
8.106Section 30(3)(a) allows the Minister to refuse surrender on the grounds that the person sought might be subject to the death penalty. This reflects New Zealand’s own abolition of the death penalty and its commitment to abolition internationally.
8.107There are two important questions to be considered. First, is New Zealand’s commitment to the abolition of the death penalty appropriately reflected by a refusal ground that is, on its face, discretionary? Second, does framing the ground in this way adequately reflect the likely practice in New Zealand that a person who is subject to the death penalty will never, in fact, be extradited?
8.108Domestic obligations constrain the discretion to extradite where there is a risk that the person would be subject to the death penalty. Section 8 of NZBORA provides that “[n]o one shall be deprived of life except on such grounds as are established by law and are consistent with the principles of fundamental justice”.
8.109Canada has a similar provision. The Supreme Court of Canada has held that it is only in exceptional circumstances that extraditions will be permissible without an undertaking that the extradited person will not be subject to the death penalty on the basis of the guarantees regarding the death penalty in the Canadian Charter of Rights and Freedoms.
8.110Both Australia and the United Kingdom have mandatory provisions preventing extradition unless there are appropriate assurances that the death penalty will not be imposed or, if imposed, will not be carried out. The United Kingdom position is further entrenched by European Convention on Human Rights obligations that would otherwise prevent extradition without such an undertaking. To give effect to the reality that New Zealand would not extradite a person who is likely to be executed, New Zealand should adopt a provision similar to that in Australia and the United Kingdom. It would state that an extradition cannot take place unless the Minister is satisfied that the death penalty will not be imposed or, if it is imposed, will not be carried out. New Zealand law should not allow exceptional circumstances to override the existence of such a requirement. This would better reflect what is both the reality and the aspiration of New Zealand law and provide a clearer indication to requesting countries as to what they have to undertake before extradition can occur. Our understanding is that such a provision would not create difficulties with New Zealand’s existing extradition treaty relationships.
8.111Currently, under section 11, no treaty may be construed to override the death penalty ground. We consider that this ground should have precedence over all of New Zealand’s bilateral extradition treaties as it is in line with New Zealand’s international obligations and significant values that New Zealanders want to see upheld. In addition, internationally, a number of courts are increasingly finding that the Second Optional Protocol to the International Covenant on Civil and Political Rights creates an obligation not to extradite a person who could be subjected to the death penalty.
8.112Both Australia and the United Kingdom require that the relevant Minister must be satisfied as to the adequacy of undertaking – in the case of Australia, the Federal Attorney-General, and in the United Kingdom, the Home Secretary. The role of Ministers is indicative of the reality that such undertakings are best sought through diplomatic channels and best evaluated, at least initially, by the Executive. For instance, the Baker Report, which reviewed the United Kingdom’s extradition system in 2011, recommended that the Home Secretary retain this role, even though it otherwise recommended that issues under the Human Rights Act 1998 (UK) be dealt with by the courts. In our view, a similar approach should be taken in New Zealand.
8.113A judicial review of a decision to surrender might also involve, as it has in Australia, consideration of the process that led to that decision. The court, however, would be more concerned with whether the Minister asked himself or herself the right questions and considered the appropriateness of the evidence rather than second-guessing the effectiveness of any undertaking given.
Question
Q27 How should the death penalty ground for refusal be addressed in the new Extradition Act?
8.114Section 30(3)(d) provides that the Minister may determine not to surrender a person if:
… it appears to the Minister that compelling or extraordinary circumstances of the person including, without limitation, those relating to the age or health of the person, exist that would make it unjust or oppressive to surrender the person;
8.115This provision gives the Minister the discretion to take into account compelling or extraordinary personal circumstances of the person who is the subject of the extradition request, including age or health. Under section 32(4), the Minister may also, after deciding to surrender a person, make an order delaying the extradition until after the expiration of a particular period where compelling or extraordinary personal circumstances make it unjust or oppressive to extradite immediately.
8.116Because this is a discretionary ground for the Minister, there may be a temptation to view it as a prerogative-style power to grant mercy. However, the matters to be weighed in deciding this ground are actually those that courts address regularly in sentencing.
8.117Giving this decision to the courts would reduce the personal nature of the assessment and mean that a Government Minister is not faced with difficult decisions that may have significant political pressure attached. The courts are able to provide an objective assessment of risk and seriousness. The power to delay extradition for a period to resolve or treat personal concerns should also be given to the court.
8.118This ground should be combined with the other injustice or oppression grounds discussed above and included in the proposed general injustice or oppression ground for the courts to consider under new extradition legislation. As discussed in relation to that ground, a high threshold would be needed before the ground would apply.
Question
Q28 How should the compelling or extraordinary circumstances ground for refusal be dealt with in the extradition process?
Speciality
8.119Section 30(5)(d) provides that the Minister must not surrender a person unless by virtue of the requesting country’s law, a provision in the applicable extradition treaty, or an undertaking given by the requesting country that the person will not:
… be detained or tried in that country for any offence committed, or alleged to have been committed, before the person’s surrender other than—
(i) an extradition offence to which the request for the person’s surrender relates; or
(ii) any other offence carrying the same or a lesser maximum penalty of which the person could be convicted on proof of the conduct constituting any extradition offence to which the request for the person’s surrender relates; or
(iii) an extradition offence in relation to the country (not being an offence for which the country requested the surrender of the person) in respect of which the Minister consents to the person being so detained or tried; or
(iv) an offence (not being an extradition offence) for which the person has consented to surrender under
section 29; or
8.120The principle of speciality requires that the person surrendered cannot be prosecuted or punished in the requesting state for offences committed prior to the extradition other than that for which extradition was granted, unless the person is afforded a reasonable opportunity to leave the requesting state.
8.121Speciality is a longstanding principle that developed in early extradition treaties because of a concern that a requesting country would prosecute a person for a political offence after having obtained the surrender of the person for a separate offence. The rationale behind the principle continues to be that, where extradition is granted for specific offences in accordance with the extradition laws of the requested country, it would amount to false pretences and an abuse of process for the person to be prosecuted for unrelated offences.
8.122This provision is an important protection for individuals from being prosecuted for offences for which New Zealand does not allow extradition as well as a protection for the sovereign interests of New Zealand in extradition relationships. The lack of an assurance of speciality continues to be widely included in extradition legislation and treaties as a ground for refusing extradition. This issue has, however, often been addressed when New Zealand has been negotiating an extradition relationship with a country, such as through a treaty or the London Scheme or in consideration of designating a country under the Act. Reciprocity has traditionally been the primary consideration in deciding to proceed with such a relationship, and it continues to have weight. Speciality is an important part of the assessment of whether a country’s extradition arrangements are reciprocal.
8.123An adjunct to the speciality rule is the mandatory ground for refusal in section 30(5) if the Minister does not have, by virtue of the requesting country’s law, the applicable extradition treaty, or an undertaking from the requesting country, the assurance that the person will not be surrendered to a third country for prosecution or punishment for an earlier unrelated offence. This provides a similar protection to the individual and the interests of New Zealand against extradition that, in effect, results in prosecution or punishment for an offence that was not tested under New Zealand’s extradition law.
8.124Because this ground involves relations between countries and may involve diplomatic assurances, it seems most appropriate for it to remain with the Minister. This is not something that the courts are in the position to assess. However, this is not a ground that requires an evaluative consideration. The required assurances, whether through the requesting country’s law, a treaty, or an undertaking, will either be present or they will not.
8.125Speciality is fundamental to whether extradition should occur. We consider that it would be more efficient for speciality to be addressed at the stage that a country is making a request (and thus a matter for the central authority to consider) if it has not already been addressed in the process designating the country into a particular category under the Act.
Question
Q29 How should the principle of speciality be dealt with in the extradition process?
Any other reason
8.126Section 30(3)(e) provides that the Minister may determine not to surrender a person if “for any other reason the Minister considers that the person should not be surrendered”. This section appears to create an unbounded discretion. There is an unresolved question of whether this broad ground is coloured by the nature of the other considerations in section 30.
8.127Without direction about when the discretion should be used, this ground has the potential to create pressure on the Minister, as it appears to put the final decision solely in the Minister’s hands. This could lead to political pressure to decide a request in a certain way.
8.128While Australia has retained a general discretion for the Attorney-General to refuse extradition, this is not the case in the United Kingdom and Canada. However, as discussed, those jurisdictions allow a broad range of matters to be considered under a human rights ground, or the general injustice or oppression ground, which we also propose for a new Extradition Act.
8.129It could be argued that, despite the reworking of the grounds in the ways we propose, it is useful to retain a final discretion for the Minister to refuse extradition on any ground. There could be circumstances outside of any of the grounds in the legislation that nevertheless warrant extradition being refused, and it may be helpful for the court not to be the only guardian of the protections for the individual who is the subject of the request. We do not favour this option, as it makes for less clarity and certainty in the grounds for refusal that are available, and it makes for a difficult role for the Minister. It also creates another opportunity for judicial review and the resulting delay to the resolution of proceedings. We raise this as a question for consideration.
Question
Q30 Should the Minister retain a broad discretionary basis to refuse extradition in the new Extradition Act?
