Chapter 8
Grounds for refusing surrender

Summary of proposals

8.16We suggest that a new Extradition Act should contain grounds for refusal for all extraditions and that these should reflect modern international and domestic expectations. We also propose simplification of the consideration of grounds by removing factors that are no longer necessary or relevant and by reassigning factors to other aspects of the extradition inquiry where they fit better. This stage of the extradition process ought to provide sufficient protection for the individual sought for extradition and, where it is appropriate, flexibility in the final decision on extradition as merited by the circumstances of each case. At the same time, the appropriate approach should be consistent with the object of having an extradition system that is efficient and that allows New Zealand to cooperate in an effective way with foreign countries for the purpose of combatting crime.

8.17We also propose that bilateral extradition treaties should not be capable of overriding the grounds for refusal in the Act. The treaties should, however, be able to supplement the statutory grounds. Our proposed statutory grounds reflect fundamental values and rights that we think ought to be protected in all extraditions. To the extent that our proposed grounds for refusal may seem to be inconsistent with pre-existing bilateral treaties, we think that those grounds in those bilateral treaties would have been inconsistent with the international norms.

8.18Each ground should only be considered by one decision maker – either the court or a Minister. Ministerial decision making should only arise where the factors are solely political or diplomatic or otherwise outside of what would be appropriate for a court to decide. We propose that 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. We note that, if a ground is to be determined by a Minister, it will potentially be subject to judicial review.