Chapter 8
Grounds for refusing surrender

Is this step in the extradition process necessary for Category 1 countries?

8.137For countries where the types of objections that arise under the grounds for refusal are very unlikely to occur, this step arguably makes no real contribution to the extradition system. Instead, it lengthens the process and merely provides an opportunity for delay. For example, in recent years, several requests from Australia have been faced with attempts to use a personal circumstances ground of refusal to prevent extradition. There is a concern that this unnecessarily delays these otherwise straightforward extradition requests.382

8.138However, although the scenarios covered by the grounds are unlikely to arise in some countries, it would be difficult to rule all of them out on an absolute basis. Not having these considerations taken into account in Category 1 cases would mean that no country could be added to that category unless New Zealand could be satisfied that there was no possible case in which the grounds might appropriately be invoked. One approach may be for a new Extradition Act to provide that only some of the grounds apply to Australia or all Category 1 countries. For example, the grounds relating to torture and the death penalty could be excluded for those countries because of the strong improbability that torture or the death penalty would ever arise.


Q33 Should there be any exceptions to the applicable grounds for refusal for extradition requests from Australia or from Category 1 countries?

382Mailley v District Court at North Shore [2013] NZCA 266.