Contents

Chapter 2
The core role of the Central Authority

The new Central Authority’s role in the Extradition Bill

2.8The bigger change to existing law is with extradition. There is currently no Central Authority for extradition. As we explained in our Issues Paper, the way roles and responsibilities are divided under the current extradition regime is complex and compartmentalised. Furthermore, the Extradition Act 1999 itself is unclear as to who should carry out particular tasks.27 Establishing a Central Authority will resolve these issues and will make it plain which agency has overall responsibility for extradition within the public sector. All of those we consulted were supportive of this proposal.

A gatekeeping function for extradition

2.9The Central Authority will have a gatekeeping function in the initial assessment of whether an extradition proceeding can commence. This will be similar to its current role under the Mutual Assistance in Criminal Matters Act 1992 (MACMA). The Central Authority will determine whether the extradition request has a reasonable prospect of success. In addition to considering that formality, the Central Authority will be required to form a judgement about the appropriateness of the proceedings, just as New Zealand’s own prosecutors form a judgement as to whether domestic criminal proceedings should proceed. We envisage that such a consideration would involve not just whether there is a sufficient case against the person sought to justify extradition, but also the realities of the justice system of the country that is making the request, and the degree to which concerns over the grounds of refusal are likely to be satisfied by the time the extradition hearing is completed. In relation to extraditions that are subject to treaty obligations, an important and potentially decisive issue will be the existence of a treaty obligation.

2.10This is an important role. It reflects one of the key aspects of our recommendations: that there should be a standard way of commencing extraditions from any country. At the moment, many extradition requests come from countries with whom we have long-standing criminal justice relationships, and therefore we have fewer concerns about whether substantive criminal proceedings will be conducted in a fashion that New Zealanders will accept as fair. However, we anticipate that over time the number of requests from non-traditional countries will increase, and if there is no treaty confirming that New Zealand is generally accepting of that criminal justice system, there ought to be an expectation that such an evaluation is made before commencing a proceeding. We envisage that this evaluation will be made by the Central Authority, in consultation with the Ministry of Foreign Affairs and Trade, based on readily accessible information.

Responsibility for standard and simplified extraditionsTop

2.11In our Issues Paper, we proposed restricting the Central Authority’s main role to standard extraditions, leaving primary responsibility for the backed-warrant (or “simplified”) process to the Police, as it is effectively organised now.28 Under this model, the Central Authority was to have only a supervisory role in backed-warrant extraditions. We were conscious of not wanting to interfere with the current efficiencies in the backed-warrant process.
2.12We now recommend, however, that the Central Authority should have primary responsibility for all extraditions, be they standard or simplified extraditions. The New Zealand Law Society expressed concerns about the current approved country regime simply because it does not engage the court in considering evidence. It suggested, however, that these concerns would be alleviated to some extent by the Central Authority providing a further layer of assurance.29
2.13Our recommendation also reflects the submission we received from the Police, who agreed that the current procedure worked well, but continued:30

However, Police considers that the establishment of a central authority covering all aspects of extradition and MACMA provides an opportunity to make further improvements to the backed warrant process. The Central Authority will have overall responsibility for and become the centre of expertise on extradition. It would therefore be well placed to undertake the legal and many other procedural responsibilities currently undertaken by Police. This would include formally receiving the request, reviewing its adequacy, and obtaining the warrant to arrest. Following arrest by Police, the management of legal proceedings and communication with the receiving country could also be managed by the Central Authority. This would greatly simplify current responsibilities and streamline processes.

2.14Crown Law also accepted that while it was not necessary to change the current arrangements, giving responsibility for all extraditions to the Central Authority would facilitate the kind of Central Authority oversight that we envisaged in relation to all extraditions.31 We envisage that such a procedure would not remove the Police completely from the process, and we would expect the Police and the Central Authority to work out how best to coordinate their roles. As the Police observed:32

… that under this approach, Police would, and indeed must, remain closely involved with each case. This is needed in order to provide support and advice to the Central Authority and other law enforcement agencies, and to manage any risks to the public from individuals subject to extradition requests. A close working relationship between Police and the Central Authority will need to be established, with appropriate protocols and other arrangements as necessary.

2.15The Police made a further point with which we agree:33

As also emphasised elsewhere, it is critical that the proposed Central Authority has the resources and expertise to undertake its functions in a timely and effective fashion.

Recommendation

The applicant in extradition proceedingsTop

2.16In our Issues Paper, we suggested the Central Authority should be the formal party that seeks extradition in the courts, rather than the requesting country.34 As we noted, this can seem like a technical point, and one that has, perhaps, received somewhat mixed answers from the courts and from commentators. In our view, having the Central Authority control the conduct of the extradition proceedings is an important part of ensuring that the proceedings are conducted according to New Zealand values.
2.17Therefore, our draft Extradition Bill contains a provision that makes the Central Authority the applicant in the Court,35 responsible for the litigation and extradition-specific obligations of disclosure that we describe in Chapter 8.36 In performing this role, the Central Authority must act independently of any requesting country.37 Therefore, if it conducts extradition proceedings it is representing the interests of the New Zealand Government, not acting on instructions from the requesting country. To reflect this, the Central Authority will be able, as New Zealand prosecutors are, to discontinue the extradition if it becomes apparent that the interests of justice demand such a course.38 We envisage that if it is apparent to the Central Authority that the Record of the Case is not likely to satisfy the necessary standard, or that one of the grounds for refusal would likely be found to apply, it would either not commence an extradition, or discontinue it once the difficulty has become apparent.

Recommendation

Challenging the decision to commence an extradition proceedingTop

2.18We have considered whether there ought to be a statutory appeal from the Central Authority’s decision to commence extradition proceedings. We have rejected a statutory appeal. The reality is that most of the matters the Central Authority will consider in making the decision to commence proceedings will subsequently also be matters the extradition court will examine when determining whether the person sought is liable for extradition. To have a statutory appeal seems to us overkill, and would unnecessarily delay extradition hearings. The rights of the person are sufficiently protected throughout the process as a whole without the need for another appeal here.

2.19We have also considered whether that same reality might make it appropriate to have a restriction on the ability to seek judicial review. Our Bill does not contain a clause preventing such a review. But judicial reviews should not be common and the scope for success should be very narrow. This observation is based on our view that the Central Authority’s decision as to whether or not to commence an extradition proceeding is similar to the decision as to whether to prosecute in domestic criminal cases. It has been held that prosecution decisions are reviewable but only in very rare cases, and only in exceptional cases would such a review succeed.39
2.20Again, the reality is that the factors that could provide the basis for a judicial review will almost always be the same factors the Court must consider in the extradition proceeding itself. In response to this point, one could argue that the person sought should not have to go through an entire extradition proceeding just to prove that it was wrongfully commenced at the outset. In many respects we agree with this sentiment. That is why we consider it important that judicial review remains available for those rare cases where an allegation of illegality is made against the Central Authority. In those rare cases, the extradition proceeding could be suspended pending the determination of the judicial review application in the High Court.40 For all other cases, however, we envisage that our new, more efficient extradition process will be capable of determining the merits of the proceeding in a sufficiently timely fashion.

2.21For the reasons outlined above we have decided to leave judicial review available under the new Bill. There is only a small risk that extradition proceedings could be delayed, a risk that seems to us to be manageable when compared with the lengths necessary to limit recourse to judicial review.

27Law Commission Extradition and Mutual Assistance in Criminal Matters (NZLC IP37, 2014) [Issues Paper] at [4.5]–[4.6].
28At [4.19]. The main difference between standard extraditions and the backed-warrant (or simplified) process is that, in backed-warrant cases there is no evidential inquiry. This makes the process more straightforward and faster.
29New Zealand Law Society Submission at [9].
30New Zealand Police Submission at 2–3.
31Crown Law Submission at 3.
32New Zealand Police Submission at 3.
33New Zealand Police Submission at 3.
34Issues Paper, above n 27, at [4.31].
35Extradition Bill, cl 5 (the definition of party).
36Extradition Bill, cls 14 and 95–99.
37Extradition Bill, cl 14(5)(a).
38Extradition Bill, cl 14(2)(c).
39Greymouth Petroleum Ltd v Solicitor-General [2010] 2 NZLR 567 (HC) at [37]–[39]. For confirmation of the difficulties of reviewing a decision not to prosecute, see Osborne v Worksafe New Zealand [2015] NZHC 2991.
40The High Court would be entitled to take this course of action by virtue of clause 66(3) of the Extradition Bill.