Contents

Chapter 4
The relationship with the New Zealand Bill of Rights Act

How the Extradition Bill reflects NZBORA

4.16In developing our policy for the Extradition Bill we analysed the rights contained in sections 21–27 of NZBORA and broke them down into the following categories:

4.17Category One – rights that apply directly to the extradition process.

NZBORA section Summary of right Clauses in the Bill How the Bill reflects NZBORA principles
21 Protection against unreasonable search or seizure. 119 and 121 The Extradition Bill will only allow for search associated with arrest and extradition in terms that are similar to the current position in the Search and Surveillance Act 2012. Other non- warranted searching – for example, to investigate the offence in the foreign country – will not be authorised by this Bill.
22 Right not to be arbitrarily arrested or detained. 28, 29, 40, 41, 57, 68, 71, 72, 75–80 The Bill contains provisions governing arrest and detention. The provisions in our Bill closely mirror existing domestic bail procedures.
23(1)(a) Right to be informed of the reason for arrest or detention. n/a A separate provision is not needed in the Extradition Bill. The NZBORA provision is directly applicable as the arrest will happen in New Zealand.
23(1)(b) Right to consult and instruct a lawyer without delay when arrested or detained. n/a The NZBORA requirement that everyone who is arrested is entitled to a lawyer is clear, and there is little that would be achieved by repeating that in the Extradition Bill.
23(1)(c) Right to habeas corpus and lawful detention. 47(2)(b)(ii)(A) The Bill contains a provision that prevents any extradition from occurring before a person has had a chance to make a habeas corpus application. There is nothing in our Bill that would make habeas corpus unavailable.
27(1) The right to natural justice. n/a There is no need to specifically replicate this right in the Bill for two reasons. First, it applies directly. Second, several provisions in the Act are designed to reflect the right to justice, for instance those governing the disclosure regime, the general principles and the entitlements of respondents.
27(2) The right to judicial review. 66 and 69 There is nothing in the Bill to prevent a person sought from seeking judicial review of a determination made by any public authority during extradition proceedings. The Bill does state, however, that the judicial review should be heard alongside any appeal unless that course of action would be impractical. We consider that this is appropriate in the context of extradition and that it does not curb the right to judicial review in any way because of the flexibility we have built into the Bill.
26(2) Double jeopardy. 20(d) Double jeopardy is a ground for refusal under the Bill.

4.18Category Two – rights that do not apply directly to extradition but that inform the provisions of the Bill. Principally this is because no New Zealand offence exists.

NZBORA section Summary of right Relevant provision in the Bill How the Extradition Bill reflects NZBORA principles
23(2) The right to be charged promptly or released. 28(2)(a), 40(2)(a), 71, 74 It is an essential part of our Bill that the person sought should know exactly why they are sought, the charge in the foreign jurisdiction, and the parallel New Zealand or treaty offences. The closest thing to charging in the extradition context is the process of filing the Notice of Intention to Proceed (NIP), which commences proceedings.

Under the new Bill, the NIP must be filed before arrest unless the person is arrested by virtue of a provisional arrest warrant. If a provisional arrest warrant is issued, the Central Authority will have 15 days (simplified)/45 days (standard) to file the NIP.
23(3) Everyone who is arrested for an offence and is not released shall be brought as soon as possible before a court or competent tribunal. 28(4), 40(5), 71(1) This right is to limit the intrusion on a person’s right to liberty as far as possible, and requires that detentions be under judicial supervision. That is equally relevant when a person is arrested in extradition proceedings. Our Bill provides that an arrested person “must be brought before the District Court at the earliest opportunity”.
23(4) The right to silence and against self-incrimination. 16(1)(a) This right is to protect defendants against self-incrimination at trial. While the right as framed in NZBORA does not technically apply, because the arrest is not for a New Zealand offence but is part of an extradition process, we consider that the values underlying the right should be equally respected in the extradition context.

There is a risk that without a warning about the right to silence, a person arrested under the Extradition Bill might volunteer information to the New Zealand Police about the underlying foreign criminal charges. Given the voluntary nature of the statement, the Police may feel obliged to pass this information on to the requesting country. It would then depend on the foreign country’s laws whether it could be admitted at trial. We do not think that this would be appropriate.
24(a) The right to know the details of your charge. 95(1), 96(1) This right is to ensure that any charged person truly understands, as soon as possible, why they have been charged.

As explained above, the closest analogy to charging in the extradition context is the filing of the NIP. This will either be filed before arrest, or within 45 days of issuing the arrest warrant. Under the Bill, a copy of the NIP and the extradition request must be disclosed to the respondent within 15 days of the arrest or the filing of the NIP, whichever is latest. This provision is designed to ensure that the respondent knows the nature of the proceedings, in detail, as soon as possible.
24(b) The right to bail unless there is just cause for continued detention. 75, 76, 77 The Bills contain specific provisions governing bail that are similar to those that apply domestically. As under the Bail Act 2000, our proposed bail provisions create a presumption in favour of bail for those accused of criminal offending and a presumption against bail for those allegedly convicted of criminal offending and those who are found liable for extradition and are awaiting appeal or the extradition itself.
24(c) The right to consult and instruct a lawyer. 16(1)(b), 17 It is important for the person sought to be able to consult with a lawyer following initial, further and final disclosure. In particular, they will need advice on whether to consent to extradition, or oppose it, before the Issues Conference. The Bill also provides that no person may be extradited without first having had the opportunity to get legal representation.
24(d) The right to adequate time and facilities to prepare a defence. 16(1)(c) It is important that a respondent is given the opportunity to meaningfully engage in extradition proceedings, as their liberty is at stake. We believe our Bill sets up an appropriate regime.
24(f) The right to free legal assistance. 16(1)(d), 17 We have included specific provisions that the person sought should be eligible for legal aid as if they were facing a criminal charge. It is very important for respondents under the Extradition Bill to be able to receive legal aid. Legal assistance is clearly required to meaningfully engage in extradition proceedings.
24(g) The right to an interpreter. 16(1)(e) We have proposed the provision of interpreters and translation facilities. Extradition is more likely than most proceedings to require these facilities.
25(a) Everyone has, at minimum, the right to a fair and public hearing by an independent and impartial court. 81 The principles underlying this right apply equally in the extradition context and are replicated in the presumption that Court hearings will be held in public.
25(b) The right to be tried without undue delay. 4(c) Various provisions in the Bill require proceedings to be undertaken within particular timeframes unless extensions are granted by the judge. The need to avoid undue delay is also recognised as one of the underlying principles in the Bill.
25(d) The right not to be compelled to be a witness or to confess guilt. 16(1)(a) Nothing in the Bill compels the respondent/any person to be a witness or to confess guilt, but the Bill does guarantee the respondent’s right to silence as to the foreign offence throughout the procedure.
25(e) The right to be present at the trial and to present a defence. 16(1)(f) Like the rights in s 24(c), (d), (f) and (g) of NZBORA, this right ensures that defendants can participate in their trials. There is a clear analogy to extradition in this regard.
25(h) The right, if convicted of the offence, to appeal. 59, 61, 64 Under the new Bill, all respondents will be able to appeal by way of general appeal to the High Court, and from there with leave to the Court of Appeal and the Supreme Court.
25(i) The right, in the case of a child, to be dealt with in a manner that takes account of the child’s age. n/a This reflects an important general principle in New Zealand law, and we would expect that the age of a person sought would be a factor in the decision of the Central Authority to proceed.
26(1) No one shall be liable to conviction of any offence on account of any act or omission that did not constitute an offence by that person under the law of New Zealand at the time it occurred. n/a We would expect this to be a factor in the decision of the Central Authority to proceed with an extradition.

4.19Category Three – rights that do not apply in the extradition context because the right is only relevant to trial or sentencing procedure.

NZBORA section Summary of right Relevant provision in the Bill How the Extradition Bill reflects NZBORA principles
24(e) Trial by jury for an offence of two years’ imprisonment or more. n/a The right to a jury trial cannot apply to extradition as the form of the trial is a matter for the requesting country.

Fairness of the ultimate trial is an important consideration for the Central Authority in commencing the extradition and for the Court in considering possible grounds of refusal. There cannot necessarily be an expectation of a jury trial in a country that does not have juries for domestic cases.
25(c) To be presumed innocent until proven guilty. n/a Extradition proceedings do not involve a conclusion as to guilt or innocence.

Again, the fairness of the ultimate trial is an important consideration for the Central Authority and the Court.
NZBORA section Summary of right Relevant provision in the Bill How the Extradition Bill reflects NZBORA principles
25(f) To examine witnesses. 92, 93 Traditionally, evidence in extradition proceedings has been presented in written, rather than oral form. This is for the practical reason that this is a preliminary step in a criminal proceeding and most of the evidence will be sourced from overseas. Our Bill, however, recognises that in rare circumstances oral examination of a witness may be necessary and provides an oral evidence order process to enable that to take place.

In Canada, this process has been held to be consistent with the right to justice under the Canadian Charter of Rights and Freedoms.109 The right to justice (s 27), the right to present a defence (s 25(e)) and the right to a fair hearing (s 25(a)) provide sufficient protection in regard to any evidence that is necessary to make out a reason why extradition should be refused.
25(g) The right to the lower penalty provided in statute if the penalty has changed. n/a This right is irrelevant to extradition. This is a matter that will be governed by the law of the country that seeks the extradition.
109United States of America v Ferras 2006 SCC 33, [2006] 2 SCR 77 at [94].