Historically, persons who commit crimes have from time to time decamped from the jurisdiction in which the crime was committed. In the simplest terms, they hope to escape the long arm of the law. This gives rise to the necessity for one jurisdiction to seek the assistance of another jurisdiction in investigating criminal matters and extraditing, or returning, the alleged malefactor to the country where the crime was committed to stand trial. Transnational crime is also increasingly prevalent, with crimes committed in one country while key evidence of the wrongdoing or the profits of the offending is found in another.

The legal problems highlighted by these sorts of incidents have always posed their own difficulties. But things have become even more difficult and new challenges are imposed by an ever more interdependent world. We now live in a world of instant communications and commerce, and shared problems of (for example) security, the environment, trade and health. All these increasingly and pervasively link individuals without any regard to national boundaries.

As Justice Stephen Breyer of the United States Supreme Court has recently put it, “judicial awareness can no longer stop at the border”.1

In particular, the issue arises today as to how a court can effectively protect basic rights when faced with acute security threats. This problem has taken on a particular and compelling urgency as those threats, notably terrorism, have grown amorphous and heedless of borders.

New Zealand is not without law in this subject area. In particular we have the Extradition Act 1999 and the Mutual Assistance in Criminal Matters Act 1992. But as we have said, these are complex and convoluted statutes that are difficult to follow.2 Both statutes fail to come to grips with the realities of New Zealand’s place within a globalised environment. They fail to provide a framework through which to balance New Zealand’s role within the international community and the values important to New Zealanders in this context, which include protecting the rights of those accused of crimes overseas and protecting those here from unwarranted investigations from abroad.

The Commission has struggled with the important and complex questions raised by these issues. We propose a new Extradition Bill designed to give New Zealand a modern, fit-for-purpose extradition regime that is sufficiently flexible to survive future challenges, but also sufficiently robust to ensure that New Zealand values are protected.

In our view, the interests of both law enforcement and justice require that extradition processes are as efficient as possible, taking account of the need to protect the rights of the persons sought.

The Commission also identified certain features as key aspects of the Mutual Assistance in Criminal Matters Act 1992 that need improvement, strengthening and simplification.

We have recommended new legislation: a new Extradition Act, and a new Mutual Assistance in Criminal Matters and for Recovery of Criminal Proceeds Act. We have done so after appropriate consultation and having regard to the regimes in place in other countries so that action taken under either Act, when adopted, will we think accord with New Zealand’s values within the wider context of this country’s international obligations.

The exercise has been demanding and I express the Commission’s thanks to all who have devoted their attention and time to this area of great current significance and importance.

Sir Grant Hammond Signature.

Sir Grant Hammond

1Stephen Breyer The Court and the World: American Law and the New Global Realities (Borzoi Books, New York, 2015).
2See Law Commission Extradition and Mutual Assistance in Criminal Matters (NZLC IP37, 2014) at [1.7].