Chapter 9

Procedure

The Minister’s decision

• Current practice
• The need for reform
• Options for reform

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

• not eligible for surrender, in which case the person is discharged;458 or
• eligible for surrender, in which case the court will either:

• transfer the case to the Minister of Justice for the final decision on surrender;459 or
• decide there is no reason to transfer the case to the Minister and make a surrender order (this option is only available in relation to a backed-warrant extradition request).460

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.

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:

• Both parties should be allowed to make written submissions to the Minister of Justice attaching any information that they consider to be relevant.
• The new Act should contain a timetable for the provision of submissions. In this regard, the person sought should have to file their submissions first but should also have the opportunity to file a brief reply to any submissions filed on behalf of the requesting country. To prevent this process becoming too rigid, the Minister should be able to grant an extension of time to the parties on request.
• The new Act should state that the Minister must consider the written submissions of the parties and advice from Ministry officials in reaching his or her decision. Ideally, Crown Law should not be involved in drafting the ministerial advice if it is appointed as the central authority under the new extradition regime.
• The new Act should set a deadline by which the Minister must have conveyed his or her decision to the parties. This deadline should be calculated from the date the last submissions are received, to ensure that any extensions given to the parties by the Minister do not cut into his or her substantive decision-making time.
• The new Act should provide that any surrender order will expire if the person sought has not been removed from New Zealand within a certain period of time. This will ensure that New Zealand authorities give due priority to executing the surrender order for the benefit of all of the parties. There would, however, need to be a mechanism to allow for an extension to the surrender order if the New Zealand authorities are unable to locate the person sought despite making reasonable efforts.

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.

Question

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