- R1 The Extradition Bill attached to this Report, which simplifies and modernises the Extradition Act 1999, should be considered for enactment.
- R2 The Mutual Assistance in Criminal Matters and for the Recovery of Criminal Proceeds Bill, which simplifies and streamlines the Mutual Assistance in Criminal Matters Act 1992, should be considered for enactment.
The core concept of a Central Authority
- R3 There should be one Central Authority that is responsible for processing any incoming or outgoing extradition or mutual assistance request.
- R4 The Central Authority should be the applicant in any extradition proceeding.
- R5 The Attorney-General should be the Central Authority.
- R6 New extradition and mutual assistance legislation should contain provisions that explain when communication between the New Zealand Central Authority and a foreign central authority or government is confidential.
The role of treaties
- R7 A treaty should still not be necessary for an extradition or to provide mutual assistance.
- R8 An extradition or mutual assistance treaty should only be able to modify the statutory process in limited ways. The areas of possible modification should be expressly identified in the legislation.
The relationship with NZBORA
- R9 The values underlying the New Zealand Bill of Rights Act should continue to inform extradition and mutual assistance legislation, and should be recognised more prominently.
Grounds for refusal
- R10 All of the statutory grounds for refusing extradition (as opposed to those contained in a treaty) should be framed so that if they apply, extradition must be refused. There should be no discretion.
- R11 All extradition requests should be subject to the same grounds for refusal, regardless of the requesting country.
- R12 Each ground for refusal should be determined by either the Court or the Minister, not both. Most of the grounds for refusal should be determined by the Court. Only the death penalty ground and certain treaty grounds should be reserved for the Minister.
- R13 Most of the grounds for refusing a mutual assistance request should be drafted in discretionary terms.
- R14 The Central Authority should have a general discretion to refuse a mutual assistance request in appropriate circumstances.
- R15 The dual criminality requirement should be retained as part of the “extradition offence” test, in relation to extradition requests from all countries except Australia.
- R16 The seriousness threshold in the “extradition offence” test should be raised from a maximum penalty of 12 months’ imprisonment to a maximum penalty of 2 years’ imprisonment, in relation to extradition requests from all countries except Australia.
Categorisation of countries
- R17 There should be two main categories of countries in new extradition legislation. Requests from approved countries should be processed using the simplified extradition procedure. Requests from all other countries should be dealt with using the standard extradition procedure.
- R18 There should be a different test for “extradition offence” if the extradition request is from Australia.
Overview of court procedure
- R19 New extradition legislation should contain its own, tailor-made procedural rules.
- R20 All extradition requests should be heard and determined in the first instance in the District Court.
- R21 An extradition proceeding should be commenced by the Central Authority filing a Notice of Intention to Proceed.
- R22 Extradition legislation should specify what must be disclosed as part of the proceedings.
- R23 Either party should be able to appeal to the High Court against a finding that the respondent is, or is not, liable for extradition. The appeal should be a general appeal.
The evidential inquiry
- R24 There should continue to be an evidential inquiry in standard extradition proceedings. In conducting the inquiry the Court should determine whether there is a case to answer in respect of each offence identified in the Notice of Intention to Proceed.
- R25 In conducting the evidential inquiry, the Court should consider a Record of the Case prepared by the requesting country and, where relevant to the test, evidence offered by the respondent.
- R26 Evidence should ordinarily be presented for extradition hearings in written form. However, in limited circumstances the Court should have the power to make an oral evidence order.
Extradition and refugee proceedings
- R27 Where a person is the subject of an extradition request and is also an asylum seeker, there should be scope for extradition and refugee proceedings to be run concurrently.
- R28 The fact that a person has refugee status should not be an automatic bar to commencing extradition proceedings.
- R29 Extradition and immigration legislation should facilitate information sharing between the Central Authority and the Ministry of Business, Innovation and Employment.
- R30 Extradition and immigration legislation should contain enabling provisions that allow for an extradition proceeding to be suspended pending a determination in a refugee proceeding and vice versa.
- R31 Extradition legislation should prohibit the extradition of a refugee or an asylum seeker except in limited circumstances.
Managing the overlap with interagency mutual assistance schemes
- R32 Guidance should be included in the mutual assistance legislation to assist agencies where there is an overlap between that legislation and other interagency mutual assistance schemes.
- R33 The Central Authority should be responsible for producing and maintaining guidelines on entering or modifying interagency mutual assistance schemes, and should be available to provide advice to agencies on their application.
Requests for information
- R34 The mutual assistance legislation should include a mechanism for the Central Authority to request information for New Zealand public sector agencies.
- R35 The Central Authority ought to be made primarily responsible for guarding privacy interests in relation to mutual assistance requests.
Defendant requests under the mutual assistance bill
- R36 New Zealand’s mutual assistance legislation should make explicit provision for requests for assistance to be made to foreign countries on behalf of defendants.