Contents

Chapter 7
Categorisation of countries

Is there a special case for Australia?

7.9In our Issues Paper we expressly addressed whether our new Bill ought to place Australia in a different position to all other countries.175 We asked this not just because of New Zealand’s close relationship with Australia, but because the reality is that most extradition traffic is with Australia, and Australia has a legal system that is very similar to New Zealand’s. We raised the possibility of treating Australia differently in three ways:

(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).

Grounds for refusal

7.10We have not recommended that the grounds of refusal should either be different or not considered for Australian requests.

7.11Given the similarity between Australia and New Zealand, and the close connections between the legal systems and societies, it may well be that such grounds will seldom succeed. In this vein, the New Zealand Police submitted:176

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.

SpecialityTop

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.

How New Zealand currently treats Australia

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.

7.15Under Part 3 of the current Extradition Act, the Minister of Justice may not extradite any person unless some kind of undertaking as to speciality and return to a third country is given.177 Under Part 4, the Minister can only recommend that a country be designated to use the backed-warrant process if satisfied that the country will comply with the speciality rule and the prohibition on return to a third country.178 None of these provisions apply to Australia because the Act automatically designates Australia an approved country.
7.16This is not a technical point or an oversight. It is clear from the Extradition Act 1988 (Cth) that Australia will abide by the speciality rule and the prohibition on return to a third country in relation to every country, other than New Zealand.179
7.17Bearing these observations in mind, any further relaxation of the speciality rule between New Zealand and Australia (as suggested in the Issues Paper)180 could only benefit New Zealand. The Australian Act does not require New Zealand to comply with the speciality rule, so all that remains to be done is for the New Zealand Act to reflect this fact and we have done so in our Bill.181

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.

7.19New Zealand’s relationship with Australia has not cooled since 1999; instead it has strengthened. The recent enactment of the Trans-Tasman Proceedings Act 2010 is evidence to that effect. Of particular note is that the Agreement underlying the Trans-Tasman Proceedings Act specifically acknowledges “each Party’s confidence in the judicial and regulatory institutions of the other Party”.182

How Australia currently treats New Zealand

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”.

Preserving speciality for other countries

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.

Dual criminalityTop

7.24Under the Extradition Act there are two components to the main extradition offence test that all countries must currently satisfy:183

(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.

The seriousness thresholdTop

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.

7.27One difficulty with the seriousness threshold, however, is that we are recommending raising it for all other countries from requiring a possible penalty of 12 months’ to a possible period of two years’ imprisonment to better align with the threshold for jury trials in New Zealand.184 However, this change would make extradition to Australia more difficult under the Bill than under the 1999 Act, which only requires a minimum penalty of 12 months’ imprisonment. We recommend that we keep the current threshold of 12 months in relation to requests made to and from Australia and have drafted our new Bill accordingly.185

Recommendation

175Issues Paper, above n 172, at [ 6.22]–[6.24] and Q 13.
176New Zealand Police Submission at [33].
177Extradition Act 1999, s 30(5).
178Extradition Act 1999, s 40(3)(c)–(d).
179Section 42 of the Australian Extradition Act 1988 (Cth) states: Where an extraditable person in relation to Australia is surrendered to Australia by a country (other than New Zealand), the person shall not, unless he or she has left, or has had the opportunity of leaving, Australia or, in a case where the person was surrendered to Australia for a limited period, has been returned to the country:
(a) be detained or tried in Australia for any offence that is alleged to have been committed, or was committed, before the surrender of the person, other than:
(i) any offence in respect of which the person was surrendered or any other offence (being an offence for which the penalty is the same or is a shorter maximum period of imprisonment or other deprivation of liberty) of which the person could be convicted on proof of the conduct constituting any such offence; or
(ii) any other offence in respect of which the country consents to the person being so detained or tried, as the case may be; or
(b) be detained in Australia for the purposes of being surrendered to another country for trial or punishment for any offence that is alleged to have been committed, or was committed, before the surrender of the person to Australia, other than any other offence in respect of which the country that surrendered the person to Australia consents to the person being so detained and surrendered.
We do not believe that this allows Australia to act with an ulterior motive when making an extradition request to New Zealand. Instead it reflects New Zealand’s position that it trusts Australia so much that these particular protections are unnecessary.
180Issues Paper, above n 172, at [6.22] and [11.14]–[11.17].
181Australia will automatically be an approved country by virtue of the definition of approved country in cl 5 of the Bill. This means that it can avoid giving a general undertaking as to speciality to become an approved country under cl 123(3).
182Agreement between the Government of New Zealand and the Government of Australia on the Trans-Tasman Court Proceedings and Regulatory Enforcement [2013] ATS 32 (signed 24 July 2008, entered into force 11 October 2013) at preamble.
183Extradition Act 1999, ss 3–4.
184Criminal Procedure Act 2011, s 4(1)(k): Jury trials are only available to persons charged with a category 3 and 4 offence, or an offence punishable with a term of imprisonment with a maximum term exceeding two years or more.
185Extradition Bill, cl 7(1)(a)(i).