Contents

Chapter 2
The core role of the Central Authority

Attorney-General or Solicitor-General

Current situation

2.22The Attorney-General is currently New Zealand’s Central Authority under MACMA. As such, the Attorney is responsible for receiving requests for assistance and deciding whether they are to proceed. The Crown Law Office in fact does much of the work on behalf of the Attorney, and the Solicitor-General and his or her deputies are able, in appropriate cases, to make decisions on the Attorney’s behalf through the provisions of the Constitution Act 1986.41

2.23In partial contrast, there is no formal Central Authority for extradition. The Minister of Justice has ostensible responsibility for extraditions to all countries, other than Australia and the United Kingdom. In practice, however, the Minister’s involvement is limited to deciding whether requests from non-treaty or non-Commonwealth countries should proceed, and whether particular grounds for refusing an extradition request are made out. The reality is that the Crown Law Office fulfils the central role of processing requests from these countries and conducting any associated litigation. The Police are then responsible for receiving and processing the “backed-warrant” extradition requests from Australia and the United Kingdom. This division of responsibility is unnecessarily complex and would be resolved by appointing a Central Authority.

Our proposals in the Issues PaperTop

2.24In our Issues Paper, we argued that it made sense for the Central Authority to be the same body for both extradition and mutual assistance.42 This reflects much of the reality of the current situation. Working on behalf of the Attorney-General, Crown Law does the work of the MACMA Central Authority, and it assists foreign governments with their extradition requests. There are clear advantages to the same body being a “one stop shop”. None of our submitters disagreed.
2.25In the Issues Paper we then expressly asked whether it was better to have the Attorney-General or the Solicitor-General as the Central Authority.43 We pointed to different advantages of designating the Attorney or the Solicitor as the Central Authority.44 Both would act in their capacity as a non-political law officer: namely, the Attorney would emphasise the role of the executive in foreign affairs while the appointment of the Solicitor might emphasise the non-political nature of both processes. We did not prefer any particular option and in practice designating the Attorney, who often delegates the role to the Solicitor, maintains an effective balance and a “best of both” approach. Inevitably either choice would require the Crown Law Office to provide legal and administrative support.

SubmissionsTop

2.26Submitters agreed that there should be one Central Authority and the proper Central Authority was the Attorney-General. The Crown Law Office submitted:45

We consider the legislation should identify the Attorney-General, rather than the Solicitor-General, as the Central Authority for extradition. A key consideration for our view is the inter-governmental context in which extradition takes place. That context makes it appropriate for a member of the executive, rather than an official, to be identified formally as the Central Authority. Comparable jurisdictions (Australia, Canada and the United Kingdom) appear to take a similar approach. We also agree that it makes sense for the Central Authority for extradition to be aligned with the Central Authority for mutual criminal assistance, and see no reason to change the identity of the latter.

2.27Perhaps the only partial reservation was from the Law Society, which would have preferred an independent stand-alone agency:46

Ideally, the central authority would be an independent standalone agency separate from Crown Law, the Police, MFAT and the Ministry of Justice. However, the Law Society recognises that it is desirable to align the extradition and mutual assistance regimes insofar as possible, and that the volume of requests is unlikely to justify the establishment of a separate agency. In that context, the Law Society agrees that the Attorney-General (in practice the Solicitor-General/Crown Law) should assume the role of central authority. At an administrative level Crown Law would need to implement procedures to ensure its objectivity is not compromised when it is required to provide advice and act in proceedings but is also the agency whose decisions and procedures are being challenged

Our recommendationTop

2.28In line with the submissions we received, we recommend that the Attorney-General should be the Central Authority.

2.29We would expect that most mutual assistance functions will continue to be performed by the Crown Law Office, with only the most important decisions being referred to the Attorney. In extradition, most of the decisions will also be made in Crown Law by the Solicitor-General, or the relevant Deputy Solicitor-General. The Constitution Act provides a general delegation of Attorney-General functions to both the Solicitor-General and to the Deputy Solicitors-General, so it is unnecessary to repeat that ability in either of the specific bills.47

2.30Ultimately, we consider that regardless of who performs the functions of the Central Authority, the more important goal in our proposed reform is to provide clarity as to what decisions the Central Authority must make, and the criteria by which they are to be made. In the Bills that are appended to this Report, we have endeavoured to do exactly that.

Recommendation

41Constitution Act 1986, ss 9A and 9C.
42Issues Paper, above n 27, [4.21] and [14.26].
43At Q4.
44At [4.22]–[4.25].
45Crown Law Submission at [8].
46New Zealand Law Society Submission at [8].
47See Constitution Act 1986, ss 9A–9C.