Contents

Chapter 5
Grounds for refusal

Extradition

Role of the grounds for refusal

5.3Extradition treaties and the statutes that give effect to them have always contained grounds for refusal. Traditionally they have given assurance that the requested state can legitimately refuse to extradite in a particular case, while remaining generally committed to the extradition relationship. We dealt with some of that history in our Issues Paper.113

5.4The grounds for refusal have an enhanced importance in our new Bill. We have greatly simplified the procedure for making extradition requests to New Zealand, and suggested that countries using the standard procedure should be allowed to present summaries of evidence in the form of a Record of the Case, rather than real evidence. Although logically procedural inefficiency, for instance through requiring the presentation of actual evidence, is not a valid substitute for necessary human rights protection, there has sometimes been a sense both in New Zealand and elsewhere that such inefficiency does provide a degree of added protection to the person sought by delaying or preventing extradition from taking place.

5.5As we explained in our Issues Paper, human rights protections are an essential part of an extradition regime and our approach to this review.114 However, these should be directly addressed by the Central Authority in deciding whether to bring,115 and then continue, an extradition proceeding, and by the Court when asked to consider such protections by someone resisting extradition.116

The individual grounds for refusalTop

5.6The grounds and the way in which they are worded in clauses 20 and 21 of our new Bill reflect the grounds that we put forward in our Issues Paper. We provide detailed commentary on each of these grounds alongside the Extradition Bill in Part 4. By way of brief summary, the grounds are as follows:

(a) Torture – The Court must refuse extradition:117

…if there are substantial grounds for believing that the respondent would be in danger of being subjected to torture or to cruel, inhumane or degrading treatment or punishment in the requesting country.

This ground is based on New Zealand’s obligations under the Convention against Torture118 and the International Covenant on Civil and Political Rights.119 The wording has been chosen carefully to align with those obligations and with the Immigration Act 2009, which gives effect to the obligations in an immigration context.120
(b) Political offence – The Court must refuse extradition if “the relevant extradition offence is a political offence”.121 This is a traditional ground for refusal that is contained in all of New Zealand’s bilateral extradition treaties. We have included a definition of “political offence” in the Bill. This definition recognises that the understanding of what is a political offence has evolved over time. Now many multilateral treaties exclude certain offences – for example, terrorist acts – from being recognised as political offences for extradition purposes. This reflects an increasing intolerance for those who endanger life and liberty in pursuit of a political cause. By including a definition in the Bill, we have tried to strike an appropriate balance between giving the reader a clear understanding of what is meant by this ground, while providing sufficient flexibility to accommodate the evolving jurisprudence on this point.
(c) Non-discrimination – The Court must refuse extradition if:122

… the extradition of the respondent—

(i) is actually sought for the purpose of prosecuting or punishing the respondent on account of his or her race, ethnic origin, religion, nationality, age, sex, sexual orientation, disability, or other status, or political opinions; or

(ii) may result in the respondent being prejudiced at trial or punished, detained, or restricted in his or her personal liberty because of any of those grounds.

This ground is common to all Commonwealth jurisdictions and reflects New Zealand’s human rights obligations in relation to discrimination as outlined in the International Covenant on Civil and Political Rights. As proposed in the Issues Paper, we have expressly added age, sexual orientation and disability as potential forms of discrimination. Explicit inclusion of these factors accords with the Human Rights Act 1993.

(d) Double jeopardy – The Court must refuse extradition where if “the respondent were tried for the relevant extradition offence in New Zealand, the respondent would be entitled to be discharged because of a previous acquittal, conviction or pardon”.123 Again, double jeopardy is a traditional ground for refusal, which is reflected in all of New Zealand’s bilateral extradition treaties. As proposed in the Issues Paper, we have framed this ground with reference to New Zealand’s domestic double jeopardy law. This makes the task more familiar to New Zealand judges and allows for greater subtlety in how the ground is applied.
(e) Injustice and oppression – The Court must refuse extradition if:124

… extradition of the respondent would be unjust or oppressive for reasons including (but not limited to) –

(i) the likelihood of a flagrant denial of a fair trial in the requesting county; or

(ii) exceptional circumstances of a humanitarian nature.

This is a new ground in New Zealand extradition law but it is based on similar grounds in several Commonwealth jurisdictions. Most particularly, it draws from the jurisprudence that has developed in relation to the equivalent ground in the Canadian Extradition Act. “Unjust” is directed primarily at the risk of prejudice to the person sought in the conduct of the foreign trial. “Oppressive” is directed more at hardship to the person sought that arises from their personal circumstances. The two examples given in the Bill are designed to reflect this distinction and to illustrate that the threshold for engaging this ground is very high. In Canada, the injustice or oppression must “shock the conscience” before the ground will be engaged.125 Notably, we envisage that the person sought may call on New Zealand’s obligations under international human rights law in support of a submission that their exceptional circumstances are of a “humanitarian nature”. We do not intend this ground to be satisfied by considerations that do not meet this high standard. Extradition should not be refused because a foreign justice system operates in a different way or extradition has significant consequences for the person sought.
(f) Must refuse under a treaty – The Court must refuse extradition if “a ground applies on which extradition must be refused under a bilateral extradition treaty”.126 We have reviewed New Zealand’s existing bilateral extradition treaties and all of the “must refuse” grounds overlap substantially with the other grounds for refusal the Court must consider. This is discussed further at the end of this chapter. The reason for limiting this provision to bilateral, as opposed to multilateral treaties, is that the grounds for refusal in the multilateral treaties overlap with both the Court and the Minister’s grounds. For that reason, we did not want to create an avenue for double decision making. Furthermore, we were conscious that it would be inappropriate for the Court to apply the Refugee Convention127 directly (which contains a ground for refusal based on a person’s refugee status) as there are already New Zealand agencies responsible for giving that Convention domestic effect.128 This is discussed further in Chapter 11.
(g) The death penalty – The Minister must refuse extradition if:129

… the respondent has been, or may be sentenced to death in the requesting country for the extradition offence and the requesting country has not given a satisfactory assurance that the sentence will not be carried out.

This ground reflects New Zealand’s commitment to the abolition of the death penalty internationally.130 As proposed in the Issues Paper, we have drafted the Bill so that there is no discretion in death penalty cases. If the death penalty may be imposed and the assurance is not satisfactory in any way, the Minister must refuse the extradition.
(h) May refuse under a treaty – The Minister may refuse extradition if a ground “applies under a bilateral extradition treaty” and relates to citizenship or extraterritoriality or is specifically reserved for a Minister.131 This ground is discussed at the end of this chapter.
5.7One ground that we have not included in the Bill, which is recognised in the current Act, relates to persons who are detained in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992 or in a facility as a special care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003. Under the current Act, the extradition of such persons must be refused. We agree that these persons should not be extradited, but we do not think that this should be considered at the end of an extradition proceeding. Instead, we consider that significant mental health concerns should be addressed at the outset. Under the Bill, the Central Authority may take such matters into account in deciding whether to commence extradition proceedings. In addition, the Court may make a formal finding that the person is unfit to participate in extradition proceedings, due to mental impairment.132 Such a finding will result in the person being discharged.

5.8Overall, the grounds for refusal in the Bill have been drafted to accommodate two overriding concerns:

(a) New Zealand’s commitment to its own domestic human rights values and to international human rights law means that New Zealand should not extradite where those interests are likely to be compromised in the requesting country in a way that might shock the New Zealand conscience.

(b) Extradition should not be frustrated by the simple assertion that differences in the way suspects are treated, trials are conducted or offenders are punished, would be in breach of New Zealand law. As we outlined above, extradition only works if countries acknowledge the importance of comity and of focusing on the substance of what legal and justice systems do.

Central Authority vettingTop

5.9Under our Bill, it will be incumbent on the Central Authority to judge the likelihood of an extradition succeeding before commencing the proceeding.133 We expect that part of that judgement will involve a preliminary assessment of whether the extradition request is likely to trigger substantive issues concerning grounds for refusal, and the degree to which those issues are likely to be resolved by the time that they are considered in the extradition hearing, or might be appropriately dealt with by way of undertakings from the requesting country.

5.10A concern that a ground for refusal might be engaged should not necessarily prevent the Central Authority from commencing the extradition, as that concern might be displaced during the process leading up to the hearing, in the Issues Conference, or resolved by undertakings better sought further along the extradition process. Nor do we expect the Central Authority to second guess possible claims that might be made by the person sought. But equally, at times the Central Authority might refuse to commence extradition proceedings because of concerns over the grounds for refusal.

Who decides?Top

5.11One of the most difficult issues in writing this final Report has been deciding which of the grounds for refusal should be determined by the Court and which should be determined by the Minister of Justice. As we detailed in our Issues Paper, one of the difficulties of the current Act is the number of grounds that must be considered by both the Court and the Minister.134 As suggested in that Paper, decisions should be made once, by the person or institution best placed to make that determination.

5.12We were concerned in our Issues Paper that the extensive role played by the Minister of Justice in determining grounds for refusal was somewhat at odds with the general New Zealand commitment that law enforcement decisions should be made by an expressly non-political actor. Traditionally, there has been a counter concern that the sorts of considerations that might go into determining whether a ground for refusal has been made out are, quintessentially, diplomatic. This particular justification perhaps no longer rings as true as it once did if grounds for refusal are viewed as reflecting international human rights minima that ought to be objectively assessed. We were also concerned in making our suggestion that if grounds were left to the Minister of Justice, the Minister’s determination would inevitably be judicially reviewed, causing delay.

5.13On the other hand, we recognised that some grounds, such as the death penalty, torture, or inhumane treatment might be better assessed by the Minister than by a court because of the nature of the likely evidence and the importance of undertakings by the requesting government as to how the person sought might be treated on return.

5.14As we suggested in the Issues Paper,135 we now recommend that both the death penalty and, where provided for by a treaty, citizenship and extraterritoriality be dealt with by the Minister. As we explain below, after careful consideration we also recommend that all other grounds be dealt with by the courts.

Submissions

5.15The submissions requested clarity as to who was to make the final decision, and were supportive of courts making most of the decisions throughout the process. The New Zealand Law Society would have preferred that the Court deal with all grounds that were not specifically added by treaty. Crown Law and the Police were a little more guarded, agreeing that the Court was the correct institution unless there was likely to be the need for assurances. We also had extensive discussions with our expert advisory committee about the ramifications of switching decisions from the Minister to the Court.

Our general preference: the Court

5.16Our starting point is that the Court is the most appropriate institution to make decisions about grounds for refusal. This is consistent with the basic starting point of the New Zealand constitution that law enforcement decisions are made by non-political actors, albeit that in the case of extradition the Minister might be acting in a non-political capacity.136 Moreover, it is our belief that with the exception of the death penalty, the other refusal grounds fall squarely within the kinds of decisions that courts might normally undertake domestically: considerations of fairness of trial, the nature of an offence, discrimination and the like.

5.17There are a number of reasons to favour a ministerial determination in relation to the death penalty. Once raised, the death penalty ground will often involve gaining undertakings, and further investigations and monitoring. In our view that is best undertaken by a government department. Although similar issues arise with the way that a requested person might be treated in prison on return, in the end we have been able to coherently divide those considerations from others that might be considered under the oppression ground. One of our major concerns has been to avoid double consideration of the same issues. As we still believe that the oppression ground is better dealt with by the Courts, we have decided to keep the torture and inhumane treatment ground within the Court’s jurisdiction.

Treaties and the grounds for refusalTop

5.18In the Issues Paper we proposed that, while treaties might be able to add grounds for refusal or expand the application of existing grounds, no treaty should be able to limit or override any of the statutory grounds for refusal.137

What supplementary grounds for refusal exist?

5.19We reviewed the bilateral and multilateral treaties looking for those grounds for refusal (whether worded as such or not) that are substantially different from the proposed grounds in our Bill. In summary, they are:

(a) “Extradition may be refused if the respondent is a New Zealand citizen/subject/national”. All 45 of New Zealand’s bilateral extradition treaties contain an article to this effect. Some specifically state that this discretion is to be exercised by the “executive authority” (Fiji, United States). Some clearly link the discretion to the possibility of the requested state prosecuting its citizen/subject/national for the alleged crime instead (Hong Kong, Korea). One states that naturalised citizens may not be refused for this reason (Ecuador). Others provide no further guidance.

(b) “Extradition must be refused if the respondent has been sentenced or would be liable to be tried and sentenced in the requesting country by an extraordinary or ad hoc court or tribunal” (Fiji, Hong Kong).

(c) “Extradition may be refused if the requesting country intends to exercise extra-territorial jurisdiction to prosecute or sentence the person sought and New Zealand would not have extraterritorial jurisdiction in the same circumstances” (Korea).

5.20The Minister is best placed to consider the citizenship and extraterritorial grounds as they are discretionary in a way that we do not think is easily resolvable by a court. This is because they imply something further than just whether a particular person is a citizen, or whether a particular enforcement is “extra-territorial”.

5.21The extraordinary or ad hoc tribunal ground is more susceptible to judicial decision. It could be considered by either the Court or the Minister. We have decided, however, that it should be considered by the Court.138 This reflects our overriding policy that, wherever possible, the Court should determine the grounds for refusal.

5.22As a practical matter, however, we have retained an ability for New Zealand to specify in future treaties that a ground should be determined by the Minister rather than the Court.

Could refusal based on a statutory ground breach a treaty obligation to extradite?

5.23This issue was discussed at length in the Issues Paper. We concluded:139

To the extent that our proposed grounds for refusal may seem to be inconsistent with pre-existing bilateral treaties, we think that those grounds in those bilateral treaties would have been inconsistent with the international norms.

The issue is complex.140

5.24We have been mindful of this issue in the way that we have drafted the Bill. We do not believe that there is a significant conflict with any of New Zealand’s extradition obligations, although there are conflicts in language used, which are unavoidable. Overall, those treaty obligations should be interpreted in accordance with general international understanding about extradition, or overlaid with international human rights obligations and, as this is the approach we have taken in our Bill, there is no direct conflict. We foresee three grounds in our Bill that are likely to generate the most discussion relating to pre-existing treaties:

Recommendations

113Law Commission Extradition and Mutual Assistance in Criminal Matters (NZLC IP37, 2014) [Issues Paper] at 87.
114At [1.27] and 22.
115At ch 14.
116At ch 15.
117Extradition Bill, cl 20(a).
118Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1465 UNTS 85 (opened for signature 10 December 1984, entered into force 26 June 1987) [Convention against Torture], art 3.
119International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976) [ICCPR], art 6.
120Immigration Act 2009, s 130.
121Extradition Bill, cl 20(b).
122Extradition Bill, cl 20(c).
123Extradition Bill, cl 20(d).
124Extradition Bill, cl 20(e).
125United States v Burns 2001 SCC 7, [2001] 1 RCS 283 at [60]; Kindler v Canada (Minister of Justice) [1991] 2 SCR 779 at [35] and [63]; and Canada v Schmidt [1987] 1 SCR 500 at 522.
126Extradition Bill, cl 20(f).
127Convention Relating to the Status of Refugees 189 UNTS 150 (opened for signature 28 July 1951, entered into force 22 April 1954) [Refugee Convention].
128Namely, the Refugee Status Branch of the Immigration New Zealand Group in the Ministry of Business, Innovation and Employment and the Immigration Protection Tribunal.
129Extradition Bill, cl 21(1).
130New Zealand is party to the Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty 1642 UNTS 414 (opened for signature 15 December 1989, entered into force 11 July 1991).
131Extradition Bill, cl 21(2).
132Extradition Bill, cls 82–85.
133Extradition Bill, cls 25(2)(a) and 38(2)(a).
134Issues Paper, above n 113, at ch 15.
135At [8.36].
136John McGrath “Principles for Sharing Law Officer Power: The Role of the New Zealand Solicitor-General” (1998) 18 NZULR 197 at 204.
137Issues Paper, above n 113, at ch 8, key proposals box.
138Extradition Bill, cl 20(f).
139Issues Paper, above n 113, at [8.17].
140In Yuen Kwok-Fung v Hong Kong Special Administrative Region of the People’s Republic of China [2001] 3 NZLR 463 (CA) at [18], Keith J stated that the protection against torture in the Extradition Act 1999 justifiably overrides the bilateral extradition treaties because the protection against torture is in “a very widely accepted multilateral treaty”. Later in Zaoui v Attorney-General (No 2) [2005] NZSC 38, [2006] 1 NZLR 289, the Supreme Court was asked to examine whether art 33 of the Refugee Convention, above n 127, had been amended by the later Convention against Torture, above n 118, and the ICCPR, above n 119. Keith J stated, at [50], that the rules in the Vienna Convention on the Law of Treaties 1155 UNTS 331 (opened for signature 29 April 1970, entered into force 27 January 1980) governing the amendment of one treaty by a later treaty are “designed for treaties that create bilateral rights and obligations” and “concern the application of successive treaties relating to the same subject-matter”. His Honour commented: “They do not easily apply to the present situation where the obligations of art 33 are in substance unilateral as well as being owed erga omnes (to all the other parties collectively).”