(a) that the grounds for refusal ought not to apply to Australian requests even if they were to apply to other approved countries;
(b) that the existence of a similar New Zealand offence would not be required before there can be extradition; and
(c) that there be no requirement that Australia not prosecute for an offence that was not the reason for extradition (otherwise known as speciality).
7.10We have not recommended that the grounds of refusal should either be different or not considered for Australian requests.
Given New Zealand’s special relationship with Australia and the United Kingdom, Police believe that further differentiation within Category I countries is warranted to provide that only some of the refusal grounds apply to Australia and the United Kingdom.
7.12On balance, however, we have decided not to remove the possibility that a ground of refusal might be satisfied in a request from Australia. This is not because we expect that there will often be occasions where the grounds will be successfully raised, but that we think it undesirable to essentially prevent New Zealand courts from enquiring into a human rights ground once it has been raised. Many of the delays we have been told about in the case of Australia where grounds have been unsuccessfully raised will be avoided by having those grounds considered by the Court at the extradition hearing, after having been raised by the respondent at the Issues Conference.
7.13In our view there is no principled reason to now require Australia to give an undertaking as to speciality. Nothing has changed since 1999 that merits restoring that requirement.
7.14The speciality rule provides that if New Zealand extradites a person to a requesting country, then that country may only prosecute or detain that person for the offence that was the subject of the extradition request, unless the person is first given the opportunity to leave the country or New Zealand gives specific permission. The prohibition on return to a third country works in a similar way. The extradited person must be given the chance to leave the requesting country or New Zealand must give specific permission before that country may extradite them on to a third country. The speciality rule and the prohibition on return to a third country are important protections for the person sought, as they protect against bad faith or an ulterior motive on the part of the requesting country.
7.18The most important point is that a policy decision had already been made in 1999 to put Australia in a sub-category all of its own, in recognition of the particularly close and trusting relationship New Zealand has with it. It would be difficult to reverse that policy now unless there was significant concern that this approach does not work appropriately.
7.20Part III of the Australian Extradition Act 1988 (Cth) governs extradition from Australia to New Zealand. The Part allows for a simplified indorsed warrant process, which is broadly analogous to New Zealand’s extradition arrangements in relation to Australia. Using the simplified process, New Zealand only needs to make an application in the appropriate statutory form, attach an arrest warrant for indorsement and produce affidavit evidence that the relevant person is in Australia. Of particular note is that there is no requirement for:
7.21Further, instead of the usual “extradition objections” applying, the only bar to extradition is for reasons of: triviality, bad faith, delay or any other reason it would be “unjust, oppressive, or too severe a punishment to surrender the person to New Zealand”.
7.22We have considered whether our policy in relation to Australia could, however, be extended to all approved countries under the new Act. While that would mean not having a specific carve-out for Australia, it might limit the number of countries that New Zealand would feel comfortable approving.
7.23Given that our intention is that over time more countries may be approved, we recommend not extending the exemption further than Australia, despite the fact that Australia will then be in a sub-category on its own. We have drafted our new Bill accordingly.
(a) dual criminality – that the behaviour alleged amounts to a crime in the requesting country and under New Zealand law; and
(b) a seriousness threshold – currently that the offence must be punishable by 12 months’ imprisonment.
7.25In relation to Australia, there is a strong case for removing the dual criminality component. In our view, the similarity between the two countries makes it highly unlikely that Australia and New Zealand would fundamentally disagree as to whether conduct should be viewed as criminal. Therefore, the task of assessing dual criminality in every extradition case is, in relation to Australia, largely redundant. In fact, the assessment may be counterproductive in some cases where technical differences between the two country’s laws prevent otherwise appropriate extraditions from taking place. Furthermore, if in the future there was a case where the Central Authority considered the Australian Police had taken an overly heavy-handed approach in charging, our proposed new unjust and oppressive ground for refusal could be interpreted to refuse extradition.
7.26The case for removing the seriousness component of the extradition offence requirement is, in our view, more complex. Some form of cut-off line is needed. In Australia, the position is that a New Zealand extradition request can simply be refused if the offence is so trivial that extradition would be unjust or oppressive. This provides flexibility, but it does not provide clear guidance to the Australian authorities and the issue is not dealt with until the end of the court proceedings. In this regard, New Zealand’s current seriousness threshold is clearer and more efficient.