Chapter 8
Grounds for refusing surrender


8.1Under the Extradition Act 1999, there are various factors to be considered when the decision is made whether or not a person who is otherwise eligible for extradition should in fact be surrendered to the requesting country. The Act refers to these as “restrictions on surrender”. In this chapter, we refer to these as grounds for refusing surrender. The implication of refusing to surrender the person sought is that generally the person will not be tried in New Zealand.

8.2The Act provides for mandatory and discretionary grounds for refusing surrender. The mandatory grounds are set out in section 7. If any of these grounds are made out, the person must not be surrendered. No extradition treaty concluded after the enacting of the Act can be construed to override section 7.283 The discretionary grounds are set out in section 8. They provide a discretionary basis on which the decision maker may decide not to surrender a person for extradition. Section 30 sets out further mandatory and discretionary grounds for refusing surrender that the Minister of Justice must consider in making the final decision on whether to extradite, including a broad residual discretion to refuse surrender in section 30(3)(e).
8.3The grounds differ depending on whether or not the extradition is taking place under a pre-existing bilateral treaty (a treaty concluded prior to the Extradition Act 1999).284 Where there is a pre-existing treaty, the grounds for refusal in the Extradition Act 1965 apply. In all other cases, the grounds for refusal in the 1999 Act apply.

8.4Consideration of the grounds for refusal occurs after the court has ruled that the person is otherwise eligible for extradition. The grounds for refusal thus act as a check on whether extradition really is desirable and warranted where the law otherwise says that extradition can occur. Consequently, the grounds for refusal should reflect the values that New Zealand wishes to uphold in its cooperation with foreign countries in extradition and protect the individual’s human rights.

8.5One of the problems with the existing regime is that the grounds for refusal applying to New Zealand’s pre-existing bilateral treaties are narrower than those under the 1999 Act. There is therefore a pressing question as to whether the new Act can or should modernise the grounds applying to the existing treaties. In this chapter, we consider whether it is desirable to enact legislation that essentially modifies the agreements that exist under the pre-existing treaties by making it possible for New Zealand to refuse to surrender a person in a broader range of circumstances.

8.6The grounds for refusal are numerous and are sometimes required to be considered by more than one decision maker. Some of the grounds are currently considered by both the court at the eligibility hearing and the Minister of Justice when determining whether to surrender the person who is the subject of the request. Others are only for the Minister to consider. The grounds are also a disparate mix requiring different types of assessment. Some of the grounds are in the nature of an absolute threshold. Others rely much more on an evaluative assessment of the circumstances of the person and the offending and a balancing of these against the seriousness of the alleged offence. In this chapter, we consider who should be responsible for making determinations about refusal to extradite. We consider whether sole responsibility for most of the refusal grounds should lie with the court on the basis that the grounds are predominantly justiciable issues for consideration by the court based on evidence, rather than political or diplomatic issues for a Minister.

8.7Lastly in the chapter, we turn to consider what the grounds for refusing surrender should be. We consider whether new grounds should be added and whether existing grounds ought to be altered.

283The exception to this rule is the bilateral treaties that pre-date the Extradition Act 1999. Those treaties may override s 7 and are subject to the mandatory restrictions on surrender in the Extradition Act 1965 instead. See ss 11(3) and 105 of the 1999 Act and the discussion of this issue in ch 3.
284For a more detailed discussion, see ch 3.