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