Principal proposals for a new Extradition Act

2Our proposed Extradition Bill is 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.

An integrated scheme for extradition

3As we signalled in our Issues Paper, our Bill would provide for an integrated scheme that would achieve the necessary and appropriate balance between protecting the rights of those for whom extradition is sought, and providing an efficient mechanism for extradition.

4Our Bill would establish a Central Authority that would be responsible for receiving, managing and executing all extradition requests.5 In our Issues Paper, we suggested that responsibility for the streamlined “backed-warrant” (or “simplified”) process would remain with the New Zealand Police, but we now recommend that the Central Authority be responsible for both standard and simplified extraditions.6 Importantly, it would be the Central Authority’s role, in the first instance, to consider whether to commence an extradition proceeding. This would involve assessing the likelihood of success. The Central Authority would also be formally responsible for overseeing the entire extradition process from the time a request arrives until the moment a person sought is discharged or extradited from New Zealand.

5We have recommended that all extradition applications should be heard in one court, the District Court, with appropriate pathways for appeal and review. We have suggested that, given the complexity of extradition proceedings, consideration is given to establishing a small pool of judges who would in fact adjudicate extradition cases. While we have actively considered whether “more serious” extraditions should be heard in the High Court, we have rejected that option. The seriousness of the crimes for which the extradition is sought is not a predictor of complexity, or of human rights concerns. Moreover, splitting extraditions would risk diluting the pool of experience judges will develop. There is an argument that the High Court might deal with standard extraditions while simplified extraditions might remain in the District Court. This runs into the same difficulty of impeding the consolidation of judicial expertise; therefore, if it was felt that standard extradition proceedings should be in the High Court then we would recommend that it deals with all extradition matters.

Reducing complexity in the way that we treat foreign countries’ requestsTop

6Our proposed Bill would resolve much of the complexity in the current Act as to how to give effect to the treaties New Zealand has either inherited or concluded.7 As we explained in our Issues Paper, the current Act has made the technical requirements of those treaties the major focus of much of the extradition litigation that has occurred, causing considerable delay. Our proposed reforms aim to make it clearer how international obligations might supplement the extradition procedure in the new Act.
7Our proposed Bill contains a simpler approach to categorising countries. Two distinct procedures would apply, depending on which country makes the extradition request. There is no evidential inquiry into requests from approved countries (Australia and other close extradition partners like the United Kingdom) and they may use the simplified procedure in the Bill.8 All other countries must present a summary of the evidence against the person sought (the “Record of the Case”) on which the Court would determine liability for extradition. These countries must use the standard extradition procedure.9
8Australia is in a unique position. Under the Bill some of the requirements in the simplified extradition procedure do not apply if the requesting country is Australia. There is a less onerous test for whether an offence is extraditable10 and, unlike for other countries, Australia is not required to provide certain formal assurances.11 These exemptions reflect the particularly close relationship New Zealand has with Australia.

Reducing delayTop

9In our view, both the interests of law enforcement and the administration of justice require that extradition processes be as efficient as possible, taking account of the need to protect the rights of the person sought.

10Our proposed Bill creates a procedure that we believe will make the extradition process far more efficient. We recommend a number of innovations designed to improve efficiency. The Notice of Intention to Proceed, for instance, will clearly identify the basis on which a person is sought for extradition, and give that person the information needed to defend the case. This will reduce unnecessary confusion. We have also recommended a number of case management mechanisms, such as an Issues Conference, at which likely issues can be raised at an early stage. This means that if a person sought for extradition is going to raise human rights concerns, early judicial attention can be brought to how those issues will be resolved.

11We recommend a single appeal route rather than the current regime, which almost encourages a multiplicity of separate appeals, judicial reviews and habeas corpus applications. We do not think it is appropriate to remove habeas corpus or judicial review procedures. We prefer instead to make the need for such reviews as limited as possible, and provide that where they are required they should be dealt with at the same time as the appeal process.

The protection of rightsTop

12We have placed great emphasis in our Bill on protecting the rights of the person sought. The new Act would provide for real protection of rights where necessary. Perhaps most importantly from a human rights perspective is the role that we see the new Central Authority performing in making a judgement as to whether an extradition request ought to proceed, and in formally taking carriage of the extradition proceeding.

13Human rights concerns are reflected in two principal ways:

(a) We have comprehensively reviewed our proposed procedures against the protections within the New Zealand Bill of Rights Act 1990 (NZBORA), including those rights that apply only to those charged with offences. As we said in the Issues Paper, some of those rights cannot apply in the same way simply because the extradition process is not, and should not try to be, a criminal process designed to establish the guilt or innocence of the person sought.12 However, we have taken the approach that the Bill ought to reflect the rights in NZBORA that are applicable given the nature of extradition.

(b) We have also given the Court two principle roles in protecting the rights of the respondent:

(i) The Court would be given a meaningful judicial role in evaluating the evidence of alleged offending in standard extradition proceedings, but one that does not go as far as requiring a pre-emptive trial of the case in New Zealand. It is an important feature of the nature of extradition proceedings that the person whose extradition is sought is not on trial. Evaluating the strength of the evidence in determining the guilt or innocence of the person is to be left to the trial court in the requesting country.

(ii) The new Act would give the Court the sole responsibility for deciding nearly all of the grounds for refusing surrender.13 Only a few grounds would be reserved for sole consideration by the Minister. This would allow the significant matters of the personal circumstances of the individual sought for extradition, the values of New Zealand’s legal system, and the human rights record of the requesting country to be considered directly and openly by the Court.14
5Extradition Bill, cls 12 and 14.
6See discussion in Issues Paper, above n 4, at [4.13] and [4.17]–[4.19].
7New Zealand’s current extradition treaties are listed in sch 3 of the Extradition Bill.
8Extradition Bill, pt 2, sub-pt 3.
9Extradition Bill, pt 2, sub-pt 2.
10Extradition Bill, cl 7(1)(a).
11Under cls 23(2)(c) and 24 of the Extradition Bill, all non-approved countries must provide assurances as to “speciality”, re-extradition, and the duty of candour and good faith, as part of making an extradition request. Countries must provide similar assurances under cl 123(3) in order to be approved to use the simplified procedure. Given that Australia is automatically recognised as an approved country by virtue of the definition in cl 5, there is no statutory requirement for it to provide similar assurances.
12Issues Paper, above n 4, at [1.28]–[1.29].
13Extradition Bill, pt 2, sub-pt 1.
14The grounds on which the Minister “must or may” refuse extradition are related to the death penalty and to bilateral extradition treaties: Extradition Bill, cl 21.