Contents

Chapter 3
The role of treaties

No requirement for a treaty

3.1Both the Mutual Assistance in Criminal Matters Act 1992 (MACMA) and the Extradition Act 1999 currently allow requests from countries that do not have a pre-existing treaty relationship with New Zealand. However, as we explained in our Issues Paper, the statutes present very different models of how treaties might affect requests that are made.51 Under MACMA, a request made under a treaty is essentially the same as if it is not made under the treaty. Under the Extradition Act, a treaty can significantly alter several aspects of the extradition process, including expanding the nature of offences that might lead to extradition.

3.2We recommend continuing the ability of all countries to seek mutual assistance and extradition from New Zealand, and indeed our Bills are designed to provide a satisfactory level of assistance to all countries. However, we also propose to replicate the current distinction between the two statutes: the new Mutual Assistance in Criminal Matters and for Recovery of Criminal Proceeds Bill (Mutual Assistance Bill) will give all countries the ability to make the same requests with only minor scope for treaties to alter how that assistance is given, while under the Extradition Bill, treaties will enable some extradition requests to be made that could otherwise not be made, and allow for other important variations.

Recommendation

51Law Commission Extradition and Mutual Assistance in Criminal Matters (NZLC IP37, 2014) [Issues Paper] at chs 3 and 13.