Chapter 7
Categorisation of countries

How many categories?

Current situation

7.2The current Extradition Act 1999 contains multiple distinctions between requesting countries. In terms of procedure, the most important relates to the backed-warrant procedure for designated countries (currently Australia and the United Kingdom) that governs whether evidence of the alleged offending must be presented.167 Other important distinctions relate to exemptions that enable some countries (such as Canada, the Czech Republic, the United States, and Tonga) to present evidence in the “Record of the Case” format.168 The Act also makes a seemingly important distinction between countries that are members of the Commonwealth extradition scheme169 or those with whom we have a treaty, as both sets of countries can commence extradition proceedings without reference to the Minister of Justice.170 The Minister of Justice can, however, allow an extradition proceeding to be commenced from any country.171

Our proposalTop

7.3In our Issues Paper, we proposed two main categories: approved countries and all other countries. Approved countries would be able to rely on a simplified procedure for extradition, while all other countries would use the standard procedure using the Record of the Case process to establish that there is a sufficient case to justify extradition.172


7.4The submissions we received all supported a simplification of categories. The New Zealand Law Society, for instance, wrote:173

There is a strong principled case for consistency of treatment of all countries, with robust safeguards applying to requests irrespective of historical relationships. To the extent any departure from procedural protections is based on political considerations, the Law Society is not well placed to address them.

Our recommendationTop

7.5We recommend that there be two main categories of countries recognised in the Act. As we explain, in some limited contexts like the addition of extradition offences, a treaty between New Zealand and another country will be able to supplement provisions of our draft Bill.

7.6Our approach to categorisation means that New Zealand will be able to provide the same minimum standard of extradition to all countries. The process has the clear advantage that the kinds of assistance that we can give countries will not depend on whether there has been prior diplomatic negotiation.

7.7We have been conscious in making this recommendation that the diplomatic process has been invaluable for New Zealand to assure itself of the appropriateness of extradition to a particular country. While the Commonwealth Scheme for Extradition,174 for example, has been an important part of the history of New Zealand extradition law, the reality of its future is that we are as likely to field requests from less traditional partners as we are from the traditional. Indeed, the nature of international travel means that we are quite likely to receive a request from any country, even one which has had limited diplomatic engagement with New Zealand, or which might have simply not have thought that they might need to request extradition from New Zealand until the necessity arose.

7.8This recommendation is only possible because of our other key recommendation: that there be a formal Central Authority, and it makes an independent determination as to the appropriateness of commencing an extradition proceeding. In doing so, the Central Authority will inevitably consider whether the requesting country is one in which there will be a fair trial, as well as addressing other human rights concerns. As we have explained, the Central Authority will take account of the existence of an international obligation, and where relevant a treaty with a requesting state will be an important matter for it to consider.


167Extradition Act 1999, pt 4, particularly ss 39–40.
168Extradition Act 1999, ss 17 and 25.
169London Scheme for Extradition within the Commonwealth (incorporating the amendments agreed in Kingstown in November 2002), formerly known as Commonwealth Scheme on the Rendition of Fugitive Offenders, adopted in 1966.
170Extradition Act 1999, ss 13–16.
171Extradition Act 1999, s 60.
172Law Commission Extradition and Mutual Assistance in Criminal Matters (NZLC IP37, 2014) [Issues Paper] at [6.16]–[6.17].
173New Zealand Law Society Submission at [19].
174London Scheme for Extradition within the Commonwealth, above n 169.