Contents

Chapter 2
The core role of the Central Authority

Communication with the requesting country

2.31An important part of the role of the Central Authority under both the Extradition and Mutual Assistance Bills will be providing guidance to the foreign country. Much important work is to be done in receiving inquiries and helping foreign countries frame their requests and supporting documents so that they fit the requirements of New Zealand law. This will remain so, even given the flexibility that we have tried to build into the way those requirements are expressed in both Bills.

2.32Under the current statutes, it is not clear whether the Central Authority (in the case of the mutual assistance), or Crown Law (in relation to extradition), are giving “legal advice” when either performs this function and are therefore protected by legal professional privilege. We discussed this problem in our Issues Paper and asked submitters for their views.48 The general consensus in the submissions was that this issue should be addressed through specific provisions in each Bill, rather than relying on the ordinary rules of privilege and confidentiality. The submitters also agreed that, while the requesting country should be able to control disclosure of this information through the usual process of claiming and waiving the protection, there should be some kind of override mechanism.
2.33In keeping with the submissions, we have included confidentiality provisions in both Bills.49 In the extradition context, this includes a provision that makes it plain that if the Central Authority considers itself obliged to disclose the information (by virtue of a court order or otherwise) then it must advise the requesting country that unless it waives the confidentiality protection and disclosure takes place the Central Authority will need to withdraw the Notice of Intention to Proceed and thereby end the proceedings.50 We consider that the provisions strike an appropriate balance between maintaining a proper relationship of openness and trust between the Central Authority and the requesting country, and maintaining New Zealand law enforcement values.

Recommendation

48Issues Paper, above n 27, at [4.33]–[4.40] and Q6.
49Mutual Assistance Bill, cl 14; and Extradition Bill, cls 107–112.
50Extradition Bill, cl 112.