Chapter 9

The Minister’s decision

9.68Court proceedings result in one of three outcomes. The court may find that the person sought is:

9.69The Extradition Act does not set out any procedural rules that apply if the Minister is called upon to make a final decision on surrender. Instead, the process is left entirely to the Minister’s discretion.

Current practice

9.70Our understanding is that the Minister of Justice currently calls for written submissions from both parties and then makes a decision based on advice from officials at the Ministry of Justice and Crown Law. The parties are then notified of the decision by letter, and if the Minister decides that the person should be surrendered, the surrender order is signed. The order is then executed by the New Zealand Police.

9.71Under the Extradition Act, this process must be completed within two months of the date on which the Court’s eligibility decision became final, otherwise the person sought may apply to the High Court to be discharged.461

The need for reformTop

9.72Where a ministerial decision is required, there should be some statutory guidance surrounding the procedure that should be followed. Such an approach would be more transparent than the current practice because the Minister and the parties would know what to expect in advance.

9.73The new extradition legislation should continue to place a timeframe around the Minister’s decision. That is because the liberty of the person sought is at stake, so he or she is entitled to have their case resolved in a timely manner. It is important, however, not to be overly prescriptive in this regard, as most of these cases will require complex diplomatic discussions.

Options for reformTop

9.74Bearing these observations in mind, we recommend that new extradition legislation should provide for the following:

9.75Once the Minister has made a final decision on surrender, the only possible remaining step is that either party may apply for a judicial review. New extradition legislation should allow for the review to be heard alongside any appeal against the Court’s eligibility decision. This is a practice that has developed in Canada, and it has the potential to be a more efficient use of time and resources.


Q40 Does the new Extradition Act need to provide for procedural rules governing the Minister’s final decision on surrender?

458Extradition Act 1999, ss 26(4) and 46(4).
459Extradition Act 1999, ss 30 and 48.
460Extradition Act 1999, s 47.
461Extradition Act 1999, ss 36 and 57.