Possible areas of reform
6.4Our Issues Paper asked how the wording of the dual criminality requirement in the current Act might be changed. Only the Police argued for a substantial change.
6.5Police submitted that the requirement for dual criminality should be significantly reduced or removed:
The technical and other problems that this can create are well described in the Issues paper. Some countries are slower to pass legislation and recognise new offences (e.g. cybercrime). Different approaches are also taken to the use of standalone offences or more general provisions. Some countries also have a different view on what constitutes criminal behaviour. For example dealing synthetic drugs is not an offence in Thailand.
Removing dual criminality may also increase the speed in which extradition applications are progressed, as it would remove the need to consider the requesting country’s legislation to ensure there is a corresponding offence to New Zealand.
Other safeguards, such as provisions around discrimination and political offences, provide an opportunity to manage any risks associated with removal of dual criminality. Alternatively, if the dual criminality requirement is retained, Police would support provisions that enable a much … broader interpretation than at present, and would ideally avoid requests being delayed or rejected on technical rather than substantive grounds.
6.6We accept that sometimes the requirement might be seen to frustrate law enforcement aims, especially when there has been perhaps broad agreement that New Zealand should change its law to take account of something generally recognised to be criminal, but is yet to do so. With the exception of Australia, we have not, however, recommended abolishing the dual criminality requirement. The requirement might create difficulties, but it is also an important assurance to those who are in New Zealand that their actions will be judged against New Zealand law (or against treaties that have been entered into by the New Zealand Government and approved by Parliament).
6.7For those reasons, the dual criminality provisions in our Bill largely replicate the current Act. It is, however, more apparent on the face of the Bill that the dual criminality requirement does not apply if an offence is recognised as an extradition offence under a treaty. This may deal with some circumstances where New Zealand is yet to implement international obligations through creating New Zealand offences.
- R15 The dual criminality requirement should be retained as part of the “extradition offence” test, in relation to extradition requests from all countries except Australia.
Relying on dual criminality even if there a treaty offenceTop
6.8A further issue we explored in our Issues Paper was whether a country that has a treaty with New Zealand that specifies offences ought to be able simply to rely on an equivalent New Zealand offence, even if our domestic offence is broader than the treaty offence. At the moment such countries have to apply to the Minister of Justice to be treated as non-treaty countries. Submitters were agreed that that this was appropriate, but that care needed to be taken not to restrict the ability of the requesting country to rely on an offence as specified in a treaty. Crown Law observed on this point:
It is not appropriate to diminish the circumstances in which extradition may be granted under an existing treaty. If the Treaty offers an alternative route to extradition which is not available under the statutory definition, that alternative should remain. If the Treaty and the statutory definition don’t cover the criminal concept underlying the foreign offence, the Treaty definition should be able to be relied on if the person sought would be eligible under that definition but not the statutory definition.
6.9We agree, and the way in which we have drafted the provisions in our draft Bill is designed to make the reliance on the treaty offence unnecessary.
Level of potential punishmentTop
6.10The current Act requires that both the foreign offence alleged and its equivalent New Zealand offence have the potential to result in at least 12 months’ imprisonment. In our Issues Paper, we raised the possibility of changing that threshold to two years’ imprisonment. Our principal reason for suggesting the change was to better reflect the categorisation in the Criminal Procedure Act 2011, as covering only the more serious offences for which the accused person can elect a jury trial for domestic offences. The New Zealand Law Society in its submission agreed that the threshold could be appropriately increased, as did Crown Law, which was worried that the 12-month threshold would not deter more trivial requests. Crown Law pointed out the two-year threshold was within the bounds of article 2 of the United Nations Model Treaty, is consistent with the London Scheme for Extradition within the Commonwealth, and has resonance with New Zealand’s current jury trial threshold.
6.11We now recommend increasing the threshold to two years and have drafted our Bill accordingly. The reality is that if the offences involved would not be classified by either the foreign country or by New Zealand as possibly justifying a two-year penalty, it is difficult to justify extradition proceedings. As discussed in Chapter 7, however, we have not raised this threshold for Australia.
- R16 The seriousness threshold in the “extradition offence” test should be raised from a maximum penalty of 12 months’ imprisonment to a maximum penalty of 2 years’ imprisonment, in relation to extradition requests from all countries except Australia.