Contents

Chapter 16
Extradition Bill and commentary

Commentary on selected provisions

Clause 5 Interpretation

approved country means

(a) Australia; and

(b) any other country declared by Order in Council made under section 123 as an approved country for the purposes of this Act

Commentary

In the Bill Australia is treated differently than other approved countries. There is a different test for “extradition offence”. Further, Australia is expressly exempted from the usual requirement to obtain assurances as to speciality and non-extradition to a third country. Given Australia’s unique position in the Bill, it is appropriate to automatically recognise it as an approved country.

political offence -

(a) means an offence that is committed primarily to advance a political objective; but

(b) excludes an offence—

(i) that is disproportionately harmful; or

(ii) for which New Zealand has an obligation under an extradition treaty to extradite or prosecute a person

Commentary

We have included a definition of “political offence” in the Bill, because the meaning of this phrase is not intuitive. As explained in the Issues Paper, the understanding of what amounts to a political offence has narrowed significantly over time. This has been the result of changing societal attitudes in the age of terrorism, and the development of alternative human rights protections. In drafting the definition we were conscious of Crown Law’s advice that there is merit in leaving room for case law to develop this concept, particularly in relation to violent crimes. Therefore, we have opted for a definition that provides some general guidance and contains an avoidance of doubt clause to highlight that the multilateral extradition treaties have something to say on this point. The aim of the general guidance is to capture the concepts of “primary purpose”, “political objective” and “disproportionate harm” that are central to the immigration and extradition jurisprudence on this phrase.476 The exclusion clause is designed to signal that offences like genocide, hostage-taking, torture and terrorist acts will not be covered.

respondent means a person –

(a) whose extradition is sought by a request made under section 23 or 37; and

(b) any person arrested under a provisional arrest warrant

Commentary

We opted for the term “respondent” in this Bill for two reasons. First, we wanted to make it plain that the person sought is not just the subject of the extradition proceeding; that person is a party to those proceedings. Second, we wanted to emphasise one of the fundamental principles in the Bill, which is that an extradition proceeding is not a criminal trial. Therefore, the person sought is not a defendant.

Clause 7 Meaning of extradition offence

(1) In this Act, extradition offence

Australia

(a) means, in relation to a requesting country that is Australia, an offence to which 1 or more of the following applies:

(i) the offence is an offence under the law of the requesting country, for which the maximum penalty is imprisonment for not less than 12 months or a more severe penalty:

(ii) the offence is an offence for which extradition may be sought under an extradition treaty:

Any requesting country other than Australia and New Zealand

(b) means, in relation to any requesting country (other than Australia and New Zealand), an offence to which either or both of the following applies:

(i) the offence is—

(A) an offence under the law of the requesting country, for which the maximum penalty is imprisonment for not less than 2 years or a more severe penalty; and

(B) the offence satisfies the condition in subclause (2).

(ii) the offence is an offence for which extradition may be sought under an extradition treaty:

Extradition to New Zealand

(c) means, in relation to an extradition request by New Zealand, an offence to which either or both of the following applies:

(i) the offence is one for which extradition may be sought under an extradition treaty:

(ii) under New Zealand law, the maximum penalty for the offence

(A) imprisonment for not less than 12 months (if the request is made to Australia); or

(B) imprisonment for not less than 2 years (if the request is made to any other country).

Exclusions

(d) excludes a military-only offence.

(2) The condition referred to in subsection (1)(b)(i)(B) is that, had the conduct constituting the offence (or equivalent conduct) occurred in New Zealand at the time at which it is alleged to have occurred, it would, if proved, have constituted an offence under New Zealand law for which the maximum penalty is imprisonment for not less than 2 years.

(3) In determining the maximum penalty for an offence against the law of a requesting country for which no statutory maximum penalty is imposed, a court must consider the level of penalty that can be imposed by a court for the offence.

Commentary

This is a key provision in the Bill. Parts of the definition are prescriptive. For instance, the foreign offence and equivalent New Zealand or treaty offence must be punishable by a particular term of imprisonment. Other aspects, such as the existence of an equivalent offence as described in clause 7(2), will often involve a degree of judicial judgment. The policy behind this definition is discussed in Chapter 6 of the Report. We note here four aspects of the drafting. First, the definition is drafted with reference to the foreign offence. So the question is: Is the foreign offence an extradition offence? This is important because the foreign offence is the one that will ultimately be identified in any extradition order. Second, the headings are designed to draw attention to the fact that different rules apply depending on the country making the request, particularly if the request is to or from Australia. Third, underneath the headings each subsection is broken down into the key components of the relevant definition. This drafting is designed to make it apparent that dual criminality (as described in clause 7(2) and 8) is only relevant if there is an incoming extradition request that is not from Australia or that does not rely on a treaty. If it is an outgoing request, a request from Australia or the offence is said to be an extradition offence because of a treaty, then there is no need to consider whether there is an equivalent offence in New Zealand or the requested country. Further, as discussed in Chapter 6 our policy is not to change the current approach to the dual criminality requirement. Therefore, in this regard clauses 7(2) and 8 use the exact same language as sections 4 and 5 of the 1999 Act. Finally, there is scope for Australia to rely on a definition of extradition offence in a treaty when making a request to New Zealand (clause 7(1)(a)(ii)). We have left this option open because multilateral treaties increasingly identify crimes as extradition offences and there may be symbolic significance in Australia formally relying on such a treaty.

Clause 13 District Court has jurisdiction in most matters

The District Court has jurisdiction to conduct extradition hearings and make judicial determinations in most matters under this Act, except appeals (see sections 86, 87)

Placeholder

Commentary

Part 1 of the Bill introduces some of the key concepts and the main participants in extradition proceedings. In that context we consider that it is logical to indicate, early on in the Bill, that the District Court is responsible for conducting extradition proceedings. The downside of this approach is that it separates this provision from the provision identifying the District Court’s powers. Those powers need to be introduced later in the Bill, in proximity to the other procedural provisions. To reflect this tension, we have simply included clause 13 as a sign post. This clause is substantially repeated at clause 86.

Clause 14 Central Authority to conduct extradition proceedings or make extradition request

(1) Only the Central Authority may conduct extradition proceedings against a respondent.

(2) The Central Authority may do any of the following in respect of those proceedings:

(a) refuse to apply for an arrest warrant or a provisional arrest warrant for a respondent:

(b) refuse to file a notice of intention to proceed against the respondent:

(c) discontinue extradition proceedings against the respondent by withdrawing the notice of intention to proceed.

(3) If the Central Authority withdraws a notice of intention to proceed, the District Court must—

(a) cancel any warrant for the arrest of the respondent; or

(b) if the respondent is detained under a warrant of arrest or detention issued under this Act, discharge the respondent.

(4) Only the Central Authority may authorise the making of a request for the extradition of a person to New Zealand.

(5) In exercising its powers or carrying out its functions under this section or Part 2 or 3 the Central Authority must—

(a) act independently of any requesting country; and

(b) apply the provisions of sections 25 or 38 (as applicable) and any other relevant provisions of this Act; and

(c) take into account applicable international obligations.

Commentary

This is a key provision in the Bill as it frames the role of the Central Authority. This role is discussed in Chapter 2 of the Report. One of the most important features of this role is that the Central Authority is to act independently of the requesting country. This is squarely stated in clause 14(5)(a) and is reinforced by the language used in clauses 14(2) and 14(5)(b) and (c). The combined effect of clauses 14(2) and 14(5)(b) is that the Central Authority is obliged to be mindful, at all times, of whether it is appropriate to commence and continue with an extradition proceeding. Whether an extradition is appropriate will sometimes be a complex matter, which requires weighing a multitude of factors including those listed in clauses 25 and 38. In particular, we have chosen to emphasise New Zealand’s international obligations (including human rights protections and extradition obligations), by expressly referring to these in clause 14(5)(c). This provision is not just referring to New Zealand’s bilateral extradition treaties. It refers to the multilateral treaties with extradition obligations as well. These treaties may create a conflict of obligations and we envisage that the Central Authority will need to maintain a close working relationship with the Ministry of Foreign Affairs and Trade to ensure that any conflict is recognised and managed.

Clause 15 Central Authority entitlements

The Central Authority is entitled to—

(a) be represented by a lawyer at any hearing and need not appear in person:

(b) seek assurances from a requesting country in relation to any of the grounds specified in section 20 on which the court must refuse extradition.

Commentary

This provision is designed to resolve two practical issues. First, the Central Authority is the Attorney-General. We have no desire, however, to deviate from the current practice of Crown Counsel at Crown Law appearing in extradition proceedings or briefing individual cases to the Crown Solicitors’ Network. This is reflected in clause 15(a). Second, diplomatic assurances may be relevant to the grounds for refusal that the Court considers under the Bill. It would not be appropriate, however, for the Court to request these directly from the requesting country, as the assurances are diplomatic in nature and so should be provided on a government-to–government basis. Clause 15(b) clarifies that the onus is on the Central Authority to gather such assurances. This will need to be done in conjunction with the Ministry of Foreign Affairs and Trade.

Clause 17 No extradition of respondent without the opportunity for legal representation

(1) Unless a respondent is legally represented or subsection (2) applies—

(a) a court may not make a determination under section 34 or 44 that the respondent is liable to extradition:

(b) a respondent may not consent under section 18 to extradition.

(2) Subsection (1) applies if the court is satisfied that the respondent—

(a) was informed of his or her rights relating to legal representation, including, where appropriate, the right to apply for legal aid under the Legal Services Act 2011; and

(b) fully understood those rights; and

(c) had the opportunity to exercise those rights; and

(d) refused or failed to exercise those rights, or engaged counsel but subsequently dismissed him or her.

(3) For the purposes of this section, a respondent refuses or fails to exercise his or her rights relating to legal representation if the respondent—

(a) refuses or fails to apply for legal aid under the Legal Services Act 2011 or applies for it unsuccessfully; and

(b) refuses or fails to engage counsel by other means.

Commentary

This provision is based on section 30 of the Sentencing Act 2002. Section 30 provides that no person may be sentenced to imprisonment without first having the opportunity for legal representation. We consider that, like imprisonment, extradition amounts to a significant limitation on a person’s rights to liberty and freedom of movement. Furthermore, the process of being extradited is rare and legally complex. In those circumstances, we consider that the respondent should have statutory entitlements in relation to legal representation. This is reflected in clause 16(1) as well as clause 17.

Clause 18 Extradition by consent

(1) A respondent may at any time, at an appearance before the District Court (whether in the manner provided in section 16 or in the manner provided in the Courts (Remote Participation) Act 2010), consent to being extradited to the requesting country in order to face trial, or to serve part or all of a sentence, for 1 or more offences for which the respondent’s extradition is sought.

(2) If the court receives notice of a respondent’s consent to extradition, the court may—

(a) issue a warrant for the respondent to be detained in a prison; and

(b) record in writing the offences for which the respondent has consented to being extradited.

(3) The court may only take the action in subsection (2) if—

(a) the respondent consented before the court to extradition for the offence or offences; and

(b) the respondent was legally represented in the proceedings or the provisions of section 16 were complied with; and

(c) the court speaks to the respondent in person and is satisfied that the person has freely consented to the extradition in full knowledge of its consequences.

(4) If the court issues a warrant under subsection (2)(a),—

(a) the court may grant bail to the respondent under section 77; and

(b) the respondent is not bailable as of right; and

(c) the respondent may not go at large without bail.

Commentary

The respondent’s ability to consent to extradition is broadly analogous to pleading guilty to a criminal charge. It largely circumvents the need for an extradition proceeding. We consider that it is worth making this option prominent on the face of the Bill by identifying it early on.

The provision is designed to simplify the process of consenting to extradition. A respondent must consent to extradition in person (that is, not through a lawyer) and the Court must inquire into whether consent is informed and freely given. If those requirements are met then the Court may issue an extradition order. This is different from the current practice where, regardless of consent, the case must be referred to the Minister for consideration of the grounds for refusal. In principle, there is considerable merit in the grounds for refusal being fully explored in every case. In practice, however, we understand that this can cause needless delay in cases where the respondent just wants the matter resolved quickly. We acknowledge that by removing the need for the Court to examine the grounds for refusal there is a risk that a respondent may consent to a highly questionable extradition. We have, however, included safeguards in this provision and more generally in the Bill to protect against this. First, the Central Authority is obliged to assess the merits of any request before commencing an extradition proceeding. If an obvious ground for refusal is likely to apply, then the request should never make it before the Court. Second, we envisage that in cases of concern the Court could explore potential grounds for refusal with the respondent in determining whether their consent is truly informed. If this inquiry leads to apprehension as to the respondent’s state of mind, the Court may initiate the process for determining whether they are fit to participate in the extradition proceedings (see clauses 82 to 85). Third, this provision is not mandatory. In extreme cases the Court could use the discretion created by subsection 18(2) to refuse to accept a respondent’s free and informed consent. We envisage that this would only occur in instances where the Court is concerned that New Zealand’s international obligations to protect against torture, discrimination or the death penalty may be engaged. In such cases, the Court (and/or the Central Authority) would be entitled to insist that the grounds for refusal should be considered in full.  

Part 2, subpart 1 – Grounds for refusing extradition

Commentary

The grounds for refusal represent New Zealand’s bottom line in responding to extradition requests. Their effect is that sometimes an otherwise valid request will be refused because something about the request or the way in which the person sought would be treated in the requesting country would shock the “New Zealand conscience”. Being clear that New Zealand will not extradite in some cases is important for New Zealand’s international reputation and for negotiating treaties, as well as in relation to specific cases. The grounds for refusal are identified at the very beginning of Part 2, to emphasise their importance. This structural approach is similar to that taken in the 1999 Act. Initially we were attracted to the idea of structuring Part 2 so that the grounds for refusal appeared chronologically at the point that the Court and the Minister would need to consider them. This would have been a more intuitive approach, but it would not have highlighted the importance of the grounds. It would also have required repetition or extensive cross-referencing between subparts 2 (standard extradition) and 3 (simplified extradition).

Clause 20 Grounds on which the court must refuse extradition

The grounds on which the court must refuse extradition are as follows:

Commentary

As explained in Chapter 5 of the report, this provision is drafted so that all of these grounds either apply or they do not. There is no balancing exercise and there is no discretion for the court to refuse.

(a) that there are substantial grounds for believing the respondent would be in danger of being subjected to torture or to cruel, inhumane, or degrading treatment or punishment in the requesting country:

Commentary

The policy behind this ground is discussed in Chapters 5 and 11 of the Report. In brief, it reflects New Zealand’s international obligations under the Convention against Torture and the International Covenant on Civil and Political Rights. There are two points to note about the drafting. First, the words have been carefully chosen to codify the international obligations. We are confident that the drafting is appropriate in this regard, as it mirrors the wording in sections 130 and 131 of the Immigration Act 2009. These sections recognise the same obligations in the context of deportation, and were redrafted to ensure accuracy at Select Committee stage. Second, this is a ground for the Court to consider, not the Minister. As discussed in the chapters, there are several policy reasons for this. There is also a drafting reason. We opted to expressly recognise the risk of “torture or cruel treatment” as a ground for refusal, to reflect the importance of the international obligations. The reality, however, is that this ground can also be seen as a subset of the “unjust and oppressive” ground and the division is not easily distinguishable. By making the Court responsible for both of these grounds, no artificial distinctions need be drawn. As an alternative we contemplated making the Minister responsible for both grounds. However, this would result in a dramatic increase in the number of cases that would need to be referred to the Minister, as the unjust and oppressive ground is inherently broad. This, in turn, would undermine our policy of making extradition more of a law enforcement exercise, as opposed to a political one. We contemplated drafting the unjust and oppressive ground more narrowly but ultimately rejected this option as well. We consider that this broadly framed ground builds necessary flexibility into the Bill to ensure that the New Zealand authorities can refuse to extradite in appropriate cases. This is discussed further below.

(b) that the relevant extradition offence is a political offence:

Commentary

As explained in Chapter 5, our policy is to retain the bar on extraditing a person to face trial or punishment for a “political offence” as the restriction still has historical and symbolic value. See the commentary to the definition of political offence above. In drafting the operative clause, we considered treating a political offence like a military offence and excluding it from the definition of extradition offence in clause 7. Conceptually this seemed appropriate. The difficulty, however, was that the question of whether an offence is a political offence is intimately connected to the questions of whether there is an ulterior political motive for the request and whether the person will be discriminated against at trial or in terms of punishment because of their political opinions. The latter questions are squarely grounds for refusal. It makes sense for all of these matters to be considered together and, again, we want to avoid putting the Court in the position of having to draw artificial distinctions.

(c) that the extradition of the respondent—

(i) is actually sought for the purpose of prosecuting or punishing the respondent on account of his or her race, ethnic origin, religion, nationality, age, sex, sexual orientation, disability, or other status, or political opinions; or

(ii) may result in the respondent being prejudiced at trial or punished, detained, or restricted in his or her personal liberty because of any of those grounds:

Commentary

The drafting of this clause largely replicates the equivalent grounds for refusal in the 1999 Act. The only significant difference is that, in accordance with what we proposed in the Issues Paper, this clause includes an express reference to discrimination based on age, sexual orientation and disability. This aligns with the approach taken in other Commonwealth jurisdictions. In drafting this clause we considered taking a step further and cross-referencing section 21 of the Human Rights Act 1993, which identifies prohibited grounds of discrimination in New Zealand. This section includes definitions of ‘sex’, ‘age’, ‘disability’, ‘political opinion’ and ‘sexual orientation’ for the purposes of identifying discrimination. It also lists five grounds that are not expressly included in our clause, namely marital status, ethical belief, colour, employment status and family status. Despite cross-referencing the Human Rights Act in the Mutual Assistance in Criminal Matters and for Recovery of Criminal Proceeds Bill (Mutual Assistance Bill), we have opted not to cross-reference it in the extradition context. Our rationale is that, in practice, the additional grounds in the Human Rights Act are less likely to arise in an extradition context. Furthermore, the relationship between extradition treaties and the grounds for refusal is much more complex than the same relationship in the mutual assistance context. Therefore, we do not wish to be overly prescriptive in the way this ground is drafted. We have, however, included the catch-all phrase “or other status” to ensure that, in practice, all of the potential reasons for discrimination in the Human Rights Act will be covered.

(d) that, if the respondent were tried for the relevant extradition offence in New Zealand, the respondent would be entitled to be discharged because of a previous acquittal, conviction, or pardon:

Commentary

As proposed in the Issues Paper, we have drafted this clause so that the usual rules in New Zealand governing double jeopardy will apply. There is no need to consider the rules relating to double jeopardy in the requesting country. The advantage of this approach is that it accommodates an acquittal, conviction or pardon in any country, not just New Zealand or the requesting country.477 It also allows for the subtleties of our domestic approach to double jeopardy to be taken into account. These subtleties include the new provisions in the Criminal Procedure Act allowing for retrials in limited circumstances where there is a tainted acquittal or new and compelling evidence.478 In response to our Issues Paper, the New Zealand Law Society raised concerns about questionable third country pardons and unreliable assertions of “new and compelling evidence”. Our view is that these issues could just as easily arise in a domestic context and that, in this instance, there is no compelling reason to create a different rule for extradition.

(e) that the extradition of the respondent would be unjust or oppressive, for reasons including (but not limited to)—

(i) the likelihood of a flagrant denial of a fair trial in the requesting country; or

(ii) exceptional personal circumstances of a humanitarian nature:

Commentary

As discussed in Chapter 5, this ground for refusal, properly understood, is a corner-stone of our reform. It provides space for the Court to refuse an extradition request if it has grave concerns about how the person will be treated by the foreign authorities upon return (the unjust aspect) or about the impact of extradition given the individual’s personal circumstances (the oppressive aspect). In drafting this ground we struggled with how best to balance the competing needs for flexibility and certainty. The phrase “unjust or oppressive” in itself is very broad and although it is often used in extradition legislation, its boundaries are not immediately apparent.479 We envisage something akin to the Canadian threshold, which requires the circumstances to “shock the conscience”480 or be “fundamentally unacceptable to our notions of fair practice and justice.”481 Therefore, to provide some clarity we have included two illustrative examples in the Bill. These are designed, in part, to show that there is a high threshold. The first example relates to fair trial concerns. It covers issues such as abuse of process and delay. The important point to note here is that this must be assessed with reference to the international minimum standards for a fair trial, not by directly applying the relevant provisions in the New Zealand Bill of Rights Act 1990 as if the trial were to be conducted in New Zealand. If we required all foreign trials to be conducted in the same manner that they would be conducted in New Zealand, then very few extraditions would ever occur. Legitimate differences need to be accommodated in criminal justice systems. Judges may find the concept of a “flagrant denial of a fair trial” from the European Court of Human Rights jurisprudence a useful point of departure in considering this ground.482 The second example is designed largely to be reminiscent of the “compelling or extraordinary personal circumstances” ground in the current Act.483 This will cover issues such as age, and physical and mental health. We have redrafted this ground, using the language from section 207 of the Immigration Act 2009, in an effort to modernise the concept and to tie it to international human rights law. This has the added benefit of making this ground easier to read in a way that is consistent with the extradition treaties.

(f) that a ground applies on which extradition must be refused under a bilateral extradition treaty.

Commentary

This ground is limited to bilateral extradition treaties. For the most part, the refusal grounds in multilateral treaties are recognised in the other grounds for refusal. For instance, the “torture or cruel treatment”, “discrimination” and “death penalty” grounds have all arisen as a direct response to multilateral treaties. Multilateral treaties will also be relevant to the application of the “unjust and oppressive” ground. The Refugee Convention, however, is not the subject of any of the grounds for refusal and we did not want it to be captured by a generic treaty-based ground. That is because, as we discuss in Chapter 11, we consider that this Convention should be the subject of a separate extradition prohibition, so that it may be determined by the designated immigration authorities rather than by the Court or the Minister in extradition proceedings.

Clause 21 Grounds on which Minister must or may refuse extradition

(1) The ground on which the Minister must refuse extradition is that the respondent has been, or may be, sentenced to death in the requesting country for the extradition offence and the requesting country has not given a satisfactory assurance to the Minister that the sentence will not be carried out.

Commentary

In accordance with our proposal in the Issues Paper, we have drafted this ground so that it is more upfront about New Zealand’s position in relation to the death penalty. The Minister must obtain an assurance that the death penalty will not be applied if the death penalty is a potential punishment for the extradition offence according to the law of the requesting country. The Minister must then refuse the extradition unless he or she is satisfied on the basis of the assurance that the death penalty will not be carried out. The Minister has no discretion.

(2) A ground on which the Minister may refuse extradition is a ground that—

(a) applies under a bilateral extradition treaty to which New Zealand and the requesting country are both party (see Part 1 of Schedule 3); and

(b) either—

(i) relates to citizenship or extra-territorial jurisdiction; or

(ii) is identified in the treaty as a ground that must be considered by a representative of the executive branch of government.

Commentary

This ground is designed to recognise that two of the grounds for refusal in New Zealand’s existing bilateral extradition treaties have been drafted in a way that does not raise a legal question that we can expect a court to answer. These grounds relate to citizenship and extra-territoriality. We have also tried to future-proof the ground so that in future extradition treaties if similar grounds are considered necessary they can be designated directly to the Minister. We recognise that theoretically there is space in the drafting for a discretionary ground for refusal to exist that does not fall into one of the three identified categories. Having reviewed the existing treaties we are confident that there is currently no such ground and we see no reason why such a ground would not be designated to the Minister in the future. On the flipside we see considerable benefit in clarifying the types of cases that will need to be referred to the Minister to consider this ground.

Clause 23 Extradition request

(1) A country to which this subpart applies may request the extradition of a person who is, or is suspected of being, in New Zealand or on the way to New Zealand.

(2) The request—

(a) must be made through diplomatic channels by—

(i) a diplomatic or consular representative, or a Minister, of the requesting country; or

(ii) any other person authorised under an extradition treaty to make an extradition request; and

(b) must be made to the Central Authority; and

(c) must include—

(i) a statement that the requesting country reasonably believes the respondent is an extraditable person; and

(ii) for each offence for which the respondent is sought,—

(A) a description of the provision under the law of the requesting country that establishes the offence and the relevant penalty and a summary of the conduct constituting the offence; or

(B) any required information about the offence submitted in accordance with the provisions of a relevant extradition treaty; and

(iii) an assurance (relating to any trial or detention of the person for offences other than the extradition offence) that complies with section 24; and

(iv) an assurance that the requesting country has disclosed, and will continue to disclose, any information known to the requesting country that could seriously undermine any prosecution of the respondent as a result of the request; and

(d) must be accompanied by the previous arrest warrant or a certified copy of that warrant.

(3) The Central Authority may waive the requirements under subsection (2)(c)(iii) or (iv), or both, if the Central Authority is satisfied that the requesting country has made a comparable assurance under an extradition treaty.

Commentary

The requirement that a standard extradition request must be made through diplomatic channels is significant. The involvement of the Ministry of Foreign Affairs and Trade will provide necessary assurance to the Central Authority that any request is authentic and has been made by the appropriate authorities in the requesting country.

Clause 25 Central Authority must decide whether to commence extradition proceedings

(1) If the Central Authority receives a request that complies with section 23(2), the Central Authority must decide whether to commence extradition proceedings against the respondent.

(2) In deciding whether to commence extradition proceedings, the Central Authority must consider—

(a) whether there is a reasonable prospect of extradition; and

(b) the following matters, if relevant to the request:

(i) any extradition treaty to which both New Zealand and the requesting country are party:

(ii) any other request received by the Central Authority for the extradition of the respondent:

(iii) whether the respondent could be prosecuted in New Zealand for the offence for which his or her extradition is sought.

(3) In addition to the matters specified in subsection (2), the Central Authority may take into account any other matter that the Central Authority considers relevant (including any concerns about the reliability of information or assurances provided by the requesting country).

Commentary

This is one of the key provisions in the Bill. It makes the Central Authority responsible for determining whether an extradition request meets the statutory requirements and whether to commence extradition proceedings. In relation to the latter decision, we have listed some of the relevant considerations but have otherwise left the Central Authority to take account of any other consideration. That is because, like the domestic decision to prosecute, this is an area where there needs to be room for discretion. To guide the Central Authority we have indicated that it should ask whether there is a “reasonable prospect of extradition”. This language is borrowed from the test for the decision to prosecute in the Solicitor-General’s Prosecution Guidelines. As part of that test a prosecutor must endeavour to anticipate and evaluate likely defences and challenges to the evidence. We consider that the Central Authority will need to undertake a similar task for the grounds for refusal and potential challenges to the Record of the Case. In practice, this means that the Central Authority will need to see a draft of the Record of the Case before deciding whether to commence extradition proceedings. The final version of the Record, however, does not need to be disclosed to the respondent and the Court until after the preliminary conference.

Clause 26 Commencement of extradition proceedings under this subpart

(1) Extradition proceedings under this subpart are commenced by the Central Authority filing a notice of intention to proceed in the District Court.

(2) A notice of intention to proceed under this subpart must state—

(a) that the Central Authority has received an extradition request; and

(b) the name of the requesting country; and

(c) the name and particulars of the respondent; and

(d) that the Central Authority seeks a determination that the respondent is liable for extradition; and

(e) the offence or offences for which the respondent’s extradition is sought; and

(f) the particulars of the offence or offences; and

(g) the grounds on which the offence or offences are considered to be extradition offences: and

(h) either -

(i) the provisions in the law of the requesting country creating the offence or offences and the equivalent New Zealand offence provisions; or

(ii) the provisions in the law of the requesting country creating the offence or offences and the equivalent offence provisions in the treaty.

Commentary

Our concept of a Notice of Intention to Proceed is loosely based on the Canadian concept of an “authority to proceed” (Extradition Act 1999 (Canada) s 15).

This is what we envisage a Notice of Intention to Proceed in a standard extradition procedure might look like:

I [insert name] certify on behalf of the Central Authority that:

1. The Central Authority has received an extradition request from Canada for the extradition of X, a plumber of Auckland.

2. On the basis of the request and other information supplied by Canada the Central Authority intends to seek a determination that X is liable for extradition on the basis that:

Clause 31 Issues conference

(1) An issues conference must be presided over by a District Court Judge and attended by the Central Authority and the respondent.

(2) At the issues conference, the Judge must—

(a) ascertain whether the respondent consents to extradition and if not order that an extradition hearing be held; and

(b) if a hearing is required,—

(i) identify and refine the issues to be determined at the hearing; and

(ii) set a date for the hearing.

(3) At the issues conference, the Judge may, for the purpose of ensuring the fair and efficient resolution of the extradition proceedings, do all or any of the following:

(a) if the interests of justice require, direct that any application made by a party to the proceedings be dealt with at a separate hearing before the extradition hearing:

(b) direct that the following be considered at separate hearings:

(i) the criteria for extradition:

(ii) the consideration of any grounds on which the District Court must find that the respondent is not liable for extradition:

(c) make a direction about any other matter, including, but not limited to,—

(i) disclosure:

(ii) evidence:

(iii) translators and interpreters:

(iv) representation of the respondent:

(v) the respondent’s fitness to participate in extradition proceedings:

(vi) the conduct of the extradition hearing.

(4) In considering whether to make a direction under subsection (3)(b), the court must take into account the possibility that the Central Authority may intend to seek assurances from the requesting country in relation to 1 or more of the grounds on which the court must refuse extradition.

(5) Despite subsection (1), an issues conference may be held in any manner the court thinks fit, including in any way permitted by the Courts (Remote Participation) Act 2010

Commentary

By including an “interests of justice” test in subclause 3(a) we aim to make it clear that pre-trial hearings should not be the norm in extradition proceedings.

Subclause (4) is designed to recognise that, in some cases, it may not be appropriate to obtain a diplomatic assurance concerning a ground for refusal until the Court has determined whether the criteria for extradition have been met. The process of negotiating a diplomatic assurance can be very resource intensive for both New Zealand and the requesting country. It might therefore be more realistic not to incur that expense unless it is necessary. More importantly, however, the weight to be given to an assurance will depend, to some extent, on how current it is. It is desirable for assurances to be given as close as possible to the date when the actual extradition would occur, so that no intervening changes in circumstance can undermine the commitments made.

Clause 34 Determining liability for extradition

(1) The District Court must determine, in respect of each offence for which the respondent is sought under a notice of intention to proceed, whether the respondent is liable for extradition.

(2) The court must determine that a respondent is liable for extradition if the court is satisfied that—

(a) the criteria for extradition have been met; and

(b) either—

(i) there are no grounds on which extradition should be refused, or the case referred to the Minister, under subsection (7); or

(ii) the case has previously been referred to the Minister and the Minister has notified the court that none of the referred grounds for refusal apply; and

(c) no order has been made under section 83 that the respondent is unfit to participate in an extradition proceeding.

(3) However, for the purposes of subsection (2)(b)(i) and (7)—

(a) the court may decide, without any inquiry, that there are no grounds on which extradition must be refused under section 20 or must or may be refused under section 21 unless either or both parties advise the court that 1 or more specified grounds under either or both of those sections may apply; and

(b) if either or both parties identify 1 or more such grounds, the court need inquire only into those identified grounds.

Criteria for extradition

(4) The criteria for extradition are—

(a) that the respondent is an extraditable person; and

(b) that the offence for which the respondent’s extradition is sought is an extradition offence; and

(c) if the respondent is sought for the purposes of prosecution, that there is a case for the respondent to answer in respect of the offence; and

(d) if the respondent is sought for the purposes of imposing or enforcing a sentence for the offence, that the respondent was convicted of the offence.

(5) In determining whether there is a case for the respondent to answer under subsection (4)(c), the court must—

(a) disregard only evidence that is so unreliable that it could not have any probative value; and

(b) consider whether the remaining evidence, if accepted as accurate at the respondent’s trial, would establish each essential element of the New Zealand offence or the offence in the extradition treaty identified in the notice of intention to proceed (see section 26(1)) that corresponds to the extradition offence.

(6) In making a determination under subsection (5), the court must take into account any relevant evidence offered by the respondent.

Consideration of grounds for refusal or referral to Minister

(7) If the court is satisfied that the criteria for extradition are met, the court, despite that satisfaction, but subject to subsection (2),—

(a) must refuse to extradite the respondent if any of the grounds in section 20 apply; and

(b) must refer the case to the Minister for his or her determination if it appears to the court that either of the grounds for refusal of extradition in section 21 may apply.

(8) If the court refers the case to the Minister under subsection (7)(b), the court must—

(a) specify the grounds on which the referral is made; and

(b) provide the Minister with copies of any documents submitted during the proceedings that are relevant to the referred grounds.

Commentary

Subclause (3) is designed to reflect our policy that, generally speaking, the respondent must raise any ground for refusal. We have not included an evidential burden, so a ground could be raised simply by submitting that it applies. The benefit of including this subclause is two-fold. One, it should motivate respondents to identify potential grounds for refusal as early as possible, preferably at the Issues Conference. Two, it provides the Court with scope to inquire into any ground that has not been raised, but it only needs to do so if it thinks that is appropriate. For example, if there is no suggestion from the parties that there is a risk of double jeopardy then we think the Court should have the option of not calling for evidence or submissions on the point. The inclusion of the Central Authority in clause (3) may seem odd. This is necessary, however, because the Central Authority is obliged to ensure that New Zealand is acting in compliance with its international obligations. Accordingly, regardless of whether a ground is raised by the respondent, the Central Authority may need to raise it in order to explain why, despite any indication to the contrary, the ground does not apply. For an explanation of the definition of a case to answer in subclause (5) and (6), see Chapter 9.

Clause 37 Extradition request

(1) An appropriate authority in an approved country may request the extradition of a person who—

(a) is an extraditable person; and

(b) is, or is suspected of being, in New Zealand or on the way to New Zealand.

(2) The request—

(a) must be made in writing to the Central Authority; and

(b) must include a statement that the requesting country reasonably believes the respondent is an extraditable person; and

(c) must be accompanied by a warrant for the arrest of the respondent issued in the requesting country (the overseas warrant) or a certified copy of that warrant.

Commentary

Under the 1999 Act there are no statutory requirements relating to the form or content of extradition requests to New Zealand under Part 4, which is the backed-warrant procedure. With Australia, a practice has developed whereby such requests are made on a Police-to-Police basis. Our policy is that, from a New Zealand perspective, the Central Authority will be responsible for these requests in the future. However, we want to retain the ability for the Australian Police to send their extradition requests directly to the Central Authority, without having to obtain formal Federal or State Government approval first. For that reason we have included the phrase “an appropriate authority in an approved country” in subsection (1). We envisage that, in relation to other approved countries, the appropriate authorities would be identified during the approval process.

Clause 49 Temporary suspension of extradition order in compelling or extraordinary circumstances

(1) The District Court may determine that an extradition order comes into effect on a date specified in the order if the court considers that there are compelling or extraordinary circumstances justifying the temporary suspension of the operation of the order.

(2) The court may vary the date specified in the order if the circumstances described in subsection (1) continue to apply, or no longer apply.

(3) In this section, compelling or extraordinary circumstances include, without limitation, circumstances relating to the respondent’s health.

Commentary

This clause allows the Court to temporarily suspend an extradition order until a specified date. The requirement for the date to be specified in the order is significant. This drafting is designed to avoid the possibility of the clause being used to indefinitely suspend an extradition. It is not an alternative to the grounds for refusal; rather, it recognises that there could be an exigent circumstance that would justify a temporary delay. The clause allows the Court to act compassionately by accommodating a significant one-off event, such as an impending medical procedure or a family funeral. We acknowledge that a respondent might try to use this clause to delay the inevitable. We consider, however, that this risk is manageable. The issue of suspension will not arise until the very end of an extradition proceeding, when the District Court is making the final order. At this stage, the appeal process will have been completed. Therefore, if the application for suspension is declined and the respondent applies for a judicial review, then the review will be discrete. There will only be one, relatively straightforward issue for the High Court to consider, so the risk of a lengthy delay seems minimal. On the flipside, the existence of this clause may enable the Court to address humanitarian concerns that might otherwise need to be taken into account in the context of the “unjust and oppressive” ground for refusal.

Clause 52 Central Authority may direct temporary extradition of respondent

(1) The Central Authority may direct the temporary extradition of a respondent if a court has determined that the respondent is liable to extradition and the Central Authority is satisfied that—

(a) it is in the interests of justice that a direction be given under this section; and

(b) the requesting country has given to the Central Authority satisfactory undertakings relating to—

(i) the taking place of a trial of the respondent in the requesting country for 1 or more of the extradition offences for which the court has determined that the respondent is liable for extradition; and

(ii) the return of the respondent to New Zealand; and

(iii) the custody of the respondent while travelling to and from and while in the requesting country; and

(iv) any other matters that the Central Authority thinks appropriate.

(2) If a respondent who is subject to a sentence of imprisonment is released from a New Zealand prison under a temporary extradition direction, or is subsequently sentenced to imprisonment for an offence against New Zealand law while subject to the temporary extradition direction, so long as the respondent is in custody in connection with the request (including custody outside New Zealand), the respondent is deemed to be serving that sentence.

(3) If, while a respondent is in the requesting country under the temporary extradition direction, the respondent ceases to be liable to be detained in New Zealand, the Central Authority must inform the requesting country that it is no longer required to comply with the undertakings referred to in subsection (1)(b).

Commentary

This clause is based on section 54 of the 1999 Act. It primarily deals with respondents who are liable for extradition, but who are also the subject of criminal proceedings in New Zealand. The test in subclause (1)(a), however, is broad enough to allow the Central Authority to use this provision in a variety of different circumstances. For instance, in exceptional cases, if there were concerns about a respondent’s safety in a requesting country at the end of the foreign country’s criminal justice process, then the Central Authority could (depending on the respondent’s immigration status) direct that they be returned to New Zealand at the conclusion of their trial and after serving any sentence. Furthermore, if in the future New Zealand signs up to an International Prisoner Transfer Scheme,484 the Central Authority may be able to help give effect to such a Scheme by directing temporary extradition solely for the trial and any sentencing. The actual sentence could then be served in New Zealand. In the vast majority of cases, however, we envisage that this provision will only be used to ensure that a respondent may be the subject of simultaneous criminal proceedings in New Zealand and abroad. Furthermore, we envisage that directions for temporary extradition will be rare.

Clause 55 Discharge of respondent if Minister refuses extradition

(1) If the Minister notifies the court under section 35(5)(a) or section 45(5)(a) that a ground applies on which the extradition of the respondent has been refused the court must—

(a) cancel the warrant authorising the detention of the respondent in prison; and

(b) immediately notify the prison manager or other person in whose custody the respondent is, that the warrant has been cancelled and the respondent must be discharged from custody.

(2) Subsection (1) applies unless the respondent is subject to another order for detention.

Commentary

Under the 1999 Act the Court determines whether a person is eligible for surrender and then, in most cases, the Minister has the final say. Accordingly, it is the Minister who ordinarily signs the extradition order. Our policy, as reflected in the Bill, is different. We propose that all extradition orders should be made by the Court. The Minister has a more limited role. If a case is referred to the Minister under clause 34 or 44 (which will be relatively rare) then the Minister must determine whether the referred ground for refusal applies, and notify the Court. The Minister’s decision itself has no immediate practical effect. That is because the Court retains carriage of the extradition proceeding throughout. That does not, however, mean that the Court may question the Minister’s decision. This provision makes it plain that if the Minister notifies the Court that a ground for refusal applies, then the Court must discharge the respondent immediately. By contrast, if the Minister notifies the Court that a ground does not apply then (given that all of the other requirements will have been met) the Court must find the person liable for extradition (see clauses 34(2)(b)(ii) and 44(2)(b)(ii)).

Appeals and judicial reviews (clauses 59–69)

Commentary

The appeal provisions in this Bill are loosely based on equivalent provisions in Part 6 of the Criminal Procedure Act 2011. Prior to the introduction of the Bill additional work will need to be done to determine the exact procedural rules that should apply to these appeals and reviews. That is because extradition proceedings do not neatly fall into the category of criminal or civil proceedings. Our view is that the Rules Committees are best placed to undertake this work, once the details of the Bill have been finalised.

Clause 59 Appeals to High Court

(1) Either party to an extradition proceeding may appeal to the High Court against a determination of the District Court under this Act that the respondent is—

(a) liable to extradition; or

(b) not liable to extradition.

(2) An appeal under subsection (1) must be made within 15 working days of the date of the notice under section 47(2)(b).

Commentary

As proposed in the Issues Paper, this provision creates a general right of appeal to the High Court. Previously this would have been described as appeal on a question of fact or law, although the Criminal Procedure Act has abandoned that distinction. We acknowledge that the 15-day time limit for filing an appeal does not align with the 20-day time limit for filing an application for judicial review of the Minister’s decision in cl 69. We do not, however, think that this will make any difference to the High Court’s ability to hear the appeal and the judicial review alongside each other, as required by clause 66.

Unfitness to participate in extradition proceedings (clauses 82–85)

Commentary

Our policy in relation to the provisions under this subheading is to adopt the concept of “unfitness to stand trial” from criminal proceedings to the extent possible. This concept is dealt with in sections 4, 7 to 14 and 23 to 27 of the Criminal Procedure (Mentally Impaired Persons) Act 2003. The main difference between that procedure and the procedure in the Bill is that in criminal proceedings the court is required to make a formal finding as to the person’s involvement in the alleged offending. If such a finding is made then there is an option of detaining the person for public safety reasons. In extradition proceedings it is not appropriate to make any formal factual findings about the alleged offending. That is because the determination of guilt or innocence is strictly reserved for the requesting country. Without a finding of involvement, there is also no justification for detaining a respondent for public safety reasons. The sole purpose of these provisions in the Bill is to ensure that no person is subjected to an extradition proceeding unless they are capable of understanding and engaging in the process.

Clause 85 Effect of determination under section 83

(1) If a court determines under section 83 that the respondent is fit to participate in extradition proceedings, the court must allow the proceedings to continue.

(2) If the court determines under section 83 that the respondent is unfit to participate in extradition proceedings, the court must discharge the proceedings and notify a duly authorised officer under the Mental Health (Compulsory Assessment and Treatment) Act 1992.

Commentary

The power to discharge the proceedings in clause 85 is mandatory. As clarified by clause 58, however, a discharge would not preclude the extradition proceeding from being commenced again in the future (for instance if the person’s mental impairment was temporary). The notification requirement in subsection (2) is also mandatory because if a respondent is so mentally impaired that they cannot engage in a court proceeding, then we would expect it to be brought to the attention of the appropriate mental health authorities.

Clause 87 Powers of District Court

(1) The District Court may, for the purpose of ensuring that an extradition proceeding is carried out in a fair and efficient manner, and to give effect to the principles in section 4, make any order and give any direction that the court thinks fit (including an order to adjourn the proceedings).

(2) An extradition proceeding may from time to time be adjourned by a judicial officer to a time and place then appointed.

(3) A Registrar may adjourn any extradition proceeding before the hearing to a time and place then appointed if the respondent is not in custody.

(4) An order under subsection (1) may, without limitation, appoint an amicus curiae to assist the court by gathering evidence and making an independent submission in relation to a ground for refusing extradition.

(5) However, an order or direction under subsection (1), (2), or (3) may not override any provision in this Act or any other enactment.

Commentary

One of our most significant policy recommendations is that, except for the death penalty and some treaty grounds, all of the grounds for refusal should be determined solely by the Court. In cases where a respondent submits that a ground applies based on systemic human rights abuses in the requesting country, we recognise that it may be difficult to get appropriate evidence before the Court. That is because of the sheer volume of information, reliable and otherwise, that exists in relation to a country’s human rights records. To address this concern, we have created a presumption in favour of written evidence and otherwise relaxed the rules of evidence (see clauses 92 and 93). This provision also gives the Court an express power to appoint an amicus curiae. An amicus would be in the position to review the evidence presented by the parties to ensure that it is complete and is the best evidence that is available at the time.

Clause 88 Court may indicate further information required from requesting country

(1) At any time during an extradition hearing the court may indicate that, without further information from the requesting country, the court may not be able to determine that the respondent is liable for extradition.

(2) If the court makes such an indication, the Central Authority may apply for the hearing to be adjourned to allow time for it to consult with the requesting country.

Commentary

The power to adjourn a proceeding to allow the Central Authority to consult with the requesting country is very significant. This is the counter-balance to the fact that the requesting country is not a party to the proceedings under the Bill, and is not subject to New Zealand jurisdiction. For these reasons, and for reasons of comity, it will never be appropriate for the Court to make a disclosure order against the requesting country. We discussed this issue in the Issues Paper and in Chapter 9. The requesting country, however, may well be in possession of information that the Court considers critical to determining the proceeding. If that is the case then the appropriate course of action is for the Court to advise the Central Authority that, without seeing the information, the Court will not be in a position to make a finding that the respondent is liable for extradition. The Court should then adjourn the proceeding to allow the Central Authority to discuss that with the requesting country. If the requesting country would prefer to end the proceedings rather than disclose the information, then that option should be available. We envisage that this power will not be used by the Court routinely and will be reserved for cases where there truly is a vital piece of information missing.

Clause 100 Place of extradition hearing

An extradition hearing must be heard and determined in the registry of the District Court in which the application for the extradition of the respondent was filed.

Commentary

The ordinary rule in domestic criminal proceedings is that a trial must take place in the District Court nearest to where the alleged offending took place or to where the defendant is believed to be.485 We have chosen not to replicate this approach in the Bill. Instead we have left the choice of location in the hands of the Central Authority. The provision contains no particular guidance as to where the Notice of Intention to Proceed should be laid, but our view is that these proceedings should only be heard in the three main centres: Auckland, Wellington and Christchurch. These locations are geographically spread, so no respondent should need to travel too far and the cost of that travel would likely be met by legal aid. The Courts (Remote Participation) Act procedures could also be used. The benefit of limiting extradition proceedings to the main centres is that it will allow a pool of specialised Judges and lawyers to develop. As we discussed in Chapter 10, extradition proceedings are rare and complex and there is a need for lawyers and Judges to have specialised training. Our understanding is that, in practice, this may not be much of a deviation from the status quo as the vast majority of persons sought for extradition to date, have been located in Auckland.

Clause 101 Request for extradition of person to New Zealand

(1) New Zealand may request from another country the extradition of a person who—

(a) is accused, or has been convicted, of an extradition offence against New Zealand law; and

(b) is suspected of being in, or on the way to, the other country.

(2) The request may only be made by the Central Authority.

(3) The request may be made—

(a) directly to the competent authorities in the relevant country; or

(b) through the Minister of Foreign Affairs and Trade to a diplomatic or consular representative, or a Minister, of that country.

(4) Subsections (2) and (3) apply unless a treaty or arrangement with the relevant country, or the law of the relevant country, prescribes a procedure for making requests that is different or supplementary to the procedure set out in subsections (2) and (3).

(5) If subsection (4) applies, the different or supplementary procedure (but only insofar as it relates to the making of requests) must be used.

Commentary

The 1999 Act is largely silent on the question of which agencies in New Zealand may make an extradition request. There is logic to this policy, as ultimately it is up to the foreign country to decide whether to accept an extradition request or not. However, we have been advised that this approach has created confusion, inconsistency and delay. To remedy this situation this provision, in conjunction with clause 14(4), makes it plain that all extradition requests from New Zealand must be authorised by the Central Authority. These requests will also be made in the name of the Central Authority unless an extradition treaty, arrangement or the law of the requested country expressly requires a different person or agency to make the request. We added the further explanation in subsection (5) to clarify that, while the treaty, arrangement or foreign law may alter the procedure in subsections (2) and (3) for who may make the request and how it should be sent, the request must still be made in accordance with the provisions of the Bill. There is no alternative extradition procedure.

Clause 104 Arrest warrant may be issued without prior summons

(1) If the Central Authority has, or is likely to, request the extradition of a person under section 101, a court may issue a warrant for the arrest of that person, if the court is satisfied that—486

(a) a charging document has been filed; and

(b) there are reasonable grounds to suspect that the defendant is in, or on the way to another country.

(2) It is not a requirement that the person be served with a summons, or that any effort be made to serve a summons on the person, before a warrant is issued for the person’s arrest.

Commentary

Under the Criminal Procedure Act the District Court will only issue a warrant to arrest a defendant if a charging document has been filed, a summons has been issued, and reasonable efforts have been made to serve the summons on the defendant. The last two of these requirements are not appropriate in the context of extradition, because the defendant is believed to be overseas and should not be alerted to the possibility of the extradition request. In those circumstances there is little point in even issuing a summons, which must set a court date for within two months. Therefore, we have included this provision in the Bill, which creates an alternative process for obtaining a warrant in cases where it is likely that an extradition request will be made.

Clause 105 Request for information about time spent in custody overseas

(1) The Central Authority may issue a certificate specifying the—

(a) date on which the person was admitted to a prison or any other place to be held in custody in relation to the request:

(b) total period for which the person was detained in custody during the process leading to the extradition of the person to New Zealand in relation to the offence or offences.

(2) A certificate issued under subsection (1)—

(a) may be based on any information held or gathered by the Central Authority that the Central Authority considers sufficiently reliable; and

(b) is presumed to be accurate in the absence of any evidence to the contrary.

Commentary

This provision is designed to rectify a practical difficulty that was bought to our attention. Under the 1999 Act, if a person is extradited to New Zealand, the requested country is primarily responsible for providing a formal certificate of the time that the person spent in custody overseas prior to being extradited.487 This certificate is important under the Parole Act because that time is considered in New Zealand to be pre-sentence detention for the purpose of calculating any resultant sentence.488 We understand however, that in practice it has been difficult to obtain these certificates from requested countries. Instead accurate information is usually obtained through Interpol. Accordingly, this provision creates a more flexible approach by allowing the Central Authority to prepare these certificates based on any information that it considers to be sufficiently reliable.

Clause 113 Transit

A person who is being transported in custody to any country from any other country for the purpose of being extradited may be transported through New Zealand.

Commentary

This provision replicates the first two subsections of section 90 of the 1999 Act. It clarifies that a person may be transported in custody through a New Zealand airport, as a result of an extradition between country X and country Y. No extradition proceedings need to take place in New Zealand to accommodate this. We have decided, however, not to take the extra step of creating statutory authority for the foreign police to use New Zealand detention facilities during the transit period. The 1999 Act allows for that to occur. Currently the transferee may be held in custody at the airport for up to 24 hours and after that, a New Zealand constable may apply to the court for an extension order. The Minister may then step in and order the removal of the person if their transportation is not continued within a reasonable time. We are uncomfortable with the policy behind this provision. There is no indication that the constable, the court or the Minister is required to inquire, to any extent, whether due process has been followed to effect the foreign extradition. In those circumstances, it is difficult to understand the rationale for the New Zealand authorities taking an active role in the extradition. There could be issues of public safety but, if that is the case, then it is no different from any other person being transited in custody through New Zealand and the appropriate solution appears to be for the Police and Immigration New Zealand to handle this as an operational matter. We have been advised that, in practice, this issue has not arisen to date and is unlikely to arise in the future. New Zealand is a natural transit point only in relation to the Pacific Islands. Flights to the Islands are regular and a transit period of more than 24 hours is improbable. Bearing that reality in mind, our view is that there is no need to replicate section 90 of the 1999 Act in full in the Bill. A similar issue arises in relation to the Mutual Assistance in Criminal Matters Act 1992. Under that Act a prisoner may be transited through New Zealand from country X to give evidence in court proceedings in country Y. Again, unless there will be some inquiry into due process, we do not think that such a person should be held in custody in New Zealand under the Mutual Assistance Bill.

Clause 118 Removal orders

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Commentary

Clauses 115 to 118 of the Bill outline the process to be followed after a person has been extradited to New Zealand, and their trial and any sentence has been completed. These clauses largely replicate sections 92 to 96 of the Extradition Act 1999, except that the Central Authority rather than the Minister of Justice has the responsibility for issuing either a removal order or a certificate giving the person temporary authority to remain in New Zealand. We settled on this policy towards the end of the consultation process, after a detailed discussion with Immigration New Zealand about possible alternative options. We have not drafted the clause relating to removal orders because work still needs to be done on how these clauses will operate in practice and, in particular, on how the Central Authority will be notified when the trial or sentence of any extradited person is coming to an end.

Clause 121 Search powers to identify and locate respondent

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Commentary

Towards the end of our consultation process, Police advised us of a practical difficulty that it encounters in attempting to identify or locate individuals who are the subjects of extradition requests. Such individuals are usually actively hiding from the authorities. The best evidence of their identity and location is often bank or telephone records. It is not possible to obtain this type of information without a search warrant or a production order. Since there is no suspected offending in New Zealand, the Police cannot obtain such a warrant or order directly under the Search and Surveillance Act 2012. Instead, the country requesting extradition would need to send a separate mutual assistance request to the Central Authority for search assistance. Under our proposed Mutual Assistance Bill, before providing search assistance, the Central Authority and the requesting country would need to enter into an agreement as to how any information seized or obtained as a result of the request would be dealt with in the foreign country. This is not appropriate. In this scenario, the information of identity and location is only relevant to the New Zealand extradition proceeding and will probably never be sent overseas. Accordingly, we recommend that consideration be given to including a provision in the Extradition Bill, allowing the Police to obtain a search warrant or a production order under the Bill for the sole purpose of identifying and/or locating a person sought in an extradition request.

476Attorney-General (Minister of Immigration) v Tamil X [2010] NZSC 107, [2011] 1 NZLR 721 at [88]–[90].
477See the commentary to s 26(2) of the New Zealand Bill of Rights Act 1990 in Sylvia Bell and others Brookers Human Rights Law (online, looseleaf ed, Brookers at [BOR 26.03(1)], which cites the following Canadian Supreme Court cases on this point: Corporation Professionnelle des Medecins du Quebec v Thibault [1988] 1 SCR 1033; R v Shubley [1990] 1 SCR 3 at [21]–[24]; and R v Van Rassel [1990] 1 SCR 225.
478Criminal Procedure Act 2011, sections 151–156. See also sections 45–48, which relate to special pleas of previous conviction, acquittal or pardon.
479See Extradition Act 1999, s 8(1); the London Scheme for Extradition within the Commonwealth (incorporating the amendments agreed in Kingstown in November 2002), formerly known as Commonwealth Scheme on the Rendition of Fugitive Offenders, adopted in 1966, art 15(2)(b); Extradition Act 1988 (Cth) s 34(2); Extradition Act 2003 (UK), ss 14, 25, 82 and 91; and Extradition Act SC 1999 c 18, s 44(1)(a).
480United States v Burns 2001 SCC 7, [2001] 1 RCS 283 at [60]; Kindler v Canada (Minister of Justice) [1991] 2 SCR 779 at [35] and [63]; and Canada v Schmidt [1987] 1 SCR 500 at 522.
481Suresh v Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3.
482Soering v United Kingdom (1989) 11 EHRR 439 (ECHR).
483Extradition Act 1999, s 30(3)(d).
484For instance the Convention on the Transfer of Sentenced Persons, to which all European Union States, Australia, Canada and the United States are parties: Convention on the Transfer of Sentenced Persons ETS 112 (opened for signature 21 March 1983, entered into force 1 July 1985).
485Criminal Procedure Act 2011, s 14.
486This is how clause 77 will look. This is slightly different from the current Bill.
487Extradition Act 1999, s 62.
488Parole Act 2002, s 91.