Chapter 8
Grounds for refusing surrender

Relationship between treaties and grounds for refusal in the Act

8.19As explained in Chapter 3, treaties fulfil an important role in New Zealand’s extradition law. The relationship between the treaties and the grounds for refusal in the Act, however, is very complicated.

8.20The relationship is governed primarily by section 11 of the 1999 Act. Section 11(1) contains the general rule that the provisions of the Act must be construed to give effect to New Zealand’s bilateral extradition treaties. This general rule is subject to the exception in section 11(2) that no treaty may be construed to override the mandatory grounds for refusal in section 7 or the grounds related to the death penalty or torture in section 30. This indicates that the treaties may override the other grounds for refusal in sections 8 and 30 of the Act if there is an inconsistency.

8.21In Yuen Kwok-Fung, the leading case in interpreting section 11, Keith J wrote:295
[16] The process which s 11 of the New Zealand Act requires can perhaps be better thought of as reconstruction of the Act, to the extent it is inconsistent with the treaty, to make it consistent. The strength of the direction recognises the basic principles of international law that treaties must be complied with and that a state cannot invoke its internal law to justify its failure to perform a treaty (arts 26 and 27 of the Vienna Convention on the Law of Treaties). In the specific context of extradition, the Act also recognises those principles in its objective stated in s 12: the Act, among other things, is an Act:
(a) To enable New Zealand to carry out its obligations under extradition treaties.
[17] The discretionary grounds provisions help illustrate the operation of s 11(1). If a treaty had no discretionary ground, New Zealand, as the requested state, would not under the treaty be able to refuse surrender on a discretionary ground. To do so would be to breach its basic obligation to surrender the accused person. In such a situation s 11(1) would require s 8 not to be applied or in effect require it to be read out of the Act. By contrast, if, as in the present case, the discretionary grounds in the treaty are broader than those in the Act, they are read into the Act which is then construed appropriately.
8.22This approach was recently confirmed by the Court of Appeal in Bujak v Minister of Justice.296
8.23Subsections 11(1) and (2) are particularly significant in relation to New Zealand’s imperial bilateral treaties. These treaties do not contain grounds for refusal that are based on the types of humanitarian concerns that are at the root of most of the grounds in sections 8 and 30. Given that these treaties create a duty to extradite, the silence in the treaties will override the grounds in sections 8 and 30 (except those related to torture and the death penalty).297

8.24The relationship between the treaties and the Act is further complicated by section 11(3). This provides that section 11 is itself subject to section 105. Section 105 is a savings provision that applies to all bilateral extradition treaties that pre-date the Act. At present, 44 out of New Zealand’s 45 bilateral treaties fall into this category.

8.25The practical effect of section 105 is that the pre-1999 bilateral treaties are only subject to the grounds for refusal in the Extradition Act 1965. Section 105 then expressly states that these treaties may, therefore, override the mandatory grounds for refusal in section 7 of the Extradition Act 1999. This means that 44 of New Zealand’s bilateral treaties cannot override the grounds in the 1965 Act, which relate to offences of a political character, torture, speciality, detention for mental health reasons, the death penalty, and double jeopardy. These treaties may, however, override the other grounds in section 7 of the 1999 Act concerning discrimination, military offences, and detention for reasons of intellectual disability.

8.26The uncertainty about whether these grounds could actually be ousted by the bilateral treaties arises because there is an additional complicating factor, namely the multilateral treaties concerning extradition. As explained in Chapter 3, some multilateral treaties create an obligation not to extradite a person in certain circumstances. If New Zealand and one of its bilateral treaty partners have also ratified such a multilateral treaty, the obligation not to extradite must be read into the bilateral treaty. The prime example of this type of treaty is the Convention Against Torture.298 All of New Zealand’s bilateral treaty partners have ratified the Convention, so the prohibition on returning a person to torture must be read into all of the bilateral treaties.
8.27In Bujak, the Court of Appeal observed that New Zealand’s imperial treaty with Poland must be read subject to the prohibition on return to torture and that the definition of torture in the Convention might be broad enough to create a prohibition on return to severe mental suffering. It could, then, accommodate at least some serious humanitarian concerns where a public official is involved.299
8.28The Court of Appeal in Bujak then went on to discuss the relationship between human rights law and extradition more generally.300 The Court discussed various United Kingdom and Canadian cases. In both countries, there is an express statutory basis for human rights considerations to be taken into account in extradition decisions. The cases, therefore, focused not on whether these issues could be considered but on how stringent the test for refusing surrender should be.
8.29In summarising the overseas authorities, the Court of Appeal noted that humanitarian considerations need to be balanced against the importance of honouring extradition arrangements.301 The Court then indicated that, in relation to Mr Bujak, if the prohibition on torture could be read as allowing consideration of humanitarian issues, the test might require the showing of “severe” disadvantage.302 The Court concluded:303

[I]f the Minister was entitled to take humanitarian considerations into account in the present case, he would be entitled to impose a stringent test. In other words, the Minister would not be entitled to deny the requesting state the ability to try a person for offences committed within its territory on the basis of human rights or humanitarian concerns unless they were sufficient to meet a very high standard, or, as the Canadian Supreme Court put it, unless the suspected offender’s return would shock the conscience. This is, however, subject to the terms of the relevant extradition treaty, which might allow for a less rigorous standard or for more expansive grounds …

8.30Some of the complexity surrounding the relationship between the Act and the treaties is unavoidable. Nonetheless, we think that, at least in relation to the grounds for refusing extradition, the Act can make this relationship clearer. We propose that treaties should only be able to create new grounds for refusal or expand the application of existing grounds. Our analysis regarding the relationship between the treaties and each of our proposed grounds for refusal is set out in the discussion of each of the grounds below.

295Kwok-Fung v Hong Kong Special Administrative Region of the People’s Republic of China [2001] 3 NZLR 463 (CA) at [16]–[17].
296Bujak v Minister of Justice [2009] NZCA 570 at [47].
297At [44]–[45].
298Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1465 UNTS 85 (opened for signature 10 December 1984, entered into force 26 June 1987).
299Bujak v Minister of Justice, above n 296, at [29].
300The Court noted (at [31]) that this relationship has been the subject of extensive academic writing and litigation. In relation to academic writing, see for example Harmen van der Wilt “On the Hierarchy between Extradition and Human Rights” in Erika de Wet and Jure Vidmar (eds) Hierarchy in International Law: the Place of Human Rights (Oxford University Press, Oxford, 2012) 148.
301At [30]–[43].
302At [29].
303At [43].