2.10The Extradition Act applies to both extradition requests made by and from New Zealand. The Act provides the procedure through which extradition requests will be considered. It also provides the terms on which extradition can occur. The Act can, however, be supplemented and to some degree supplanted by an extradition treaty in force between New Zealand and a foreign country.
2.11The Act applies only if the request relates to an extraditable person and an extradition offence and comes from an extradition country. An extraditable person is a person suspected of, or who has been convicted of, committing an extradition offence. An extradition offence is an offence under the law of the requesting country punishable by 12 months or more in prison and that, if that conduct had occurred in New Zealand at the relevant time, would also have been an offence in New Zealand punishable by 12 months or more in prison (known as the principle of dual criminality). An extradition country is a country to which the Act applies.
2.12Another important concept that is essential for an extradition request is the principle of speciality. Speciality means that, once extradited, a person cannot be detained and tried in the requesting country for an offence that is different to the one to which the extradition request related.
2.13The Act contains mandatory restrictions on surrender, which prevent a person from being surrendered for extradition, and discretionary restrictions on surrender, which the Minister of Justice may rely upon to refuse surrender, although these may be modified by a treaty. The mandatory restrictions on surrender are:
- the offence or prosecution is of a political character or because of discrimination;
- the person may be prejudiced in the justice system due to discrimination;
- the conduct constitutes an offence under military law only;
- double jeopardy; or
- the person is a patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992 or Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.
2.14The discretionary restrictions on surrender are:
- where it would be unjust or oppressive in the circumstances to surrender the person because:
- of the trivial nature of the case;
- the accusation was not made in good faith in the interests of justice; or
- of the amount of time that has passed since the alleged offence; or
- the person has been accused of another offence in New Zealand, and proceedings are still under way.
2.15The Act contains two different procedures for extradition from New Zealand, depending on which country makes the extradition request:
- The standard procedure, contained in Part 3 of the Act, applies to extradition requests from:
- a Commonwealth country;
- a country that New Zealand has an extradition treaty with;
- a country designated by Order in Council to have Part 3 of the Act apply; and
- for the purposes of a specific individual extradition request, a country designated under Part 5 of the Act.
- The backed-warrant procedure, contained in Part 4 of the Act, is a streamlined procedure (that gets its name from the procedure in which New Zealand is asked to back the overseas warrant for arrest) and applies to extradition requests from:
- Australia; and
- any country designated by Order in Council (currently only the United Kingdom, including the Pitcairn Islands).
2.16Below, we briefly describe how extradition requests are dealt with under the two procedures. They are addressed in more detail in Chapter 9.
2.17Figure 1 illustrates which Part of the Act applies to which countries.
Figure 1: Which Part of the Act applies?
Standard procedure for extradition from New Zealand
2.18Figure 2, below, shows the standard procedure for extradition from New Zealand. The process begins with a request for the surrender of a person by the foreign country. The request must be accompanied by duly authenticated supporting documents, including the arrest warrant and details of the offence. The Minister of Justice must make the decision to either request that a District Court judge issue an arrest warrant for the person or to refuse the request for surrender. The Act does not provide grounds on which the Minister is to make this decision.
2.19If requested to do so, a District Court judge may issue an arrest warrant after considering whether the person is, or is suspected of being, in New Zealand and whether there are reasonable grounds to find that the matter relates to an extraditable person, an extradition country, and an extradition offence.
2.20Under section 20 of the Act, the foreign country may make an urgent request without attaching supporting documents, and a District Court judge may issue a provisional arrest warrant. If the provisional warrant procedure is followed, the supporting documents must be received within a reasonable time before the next stages of the extradition process can be carried out. Once the person is arrested, he or she is brought before a District Court judge, and any bail application may be considered.
2.21Subsequently, the hearing to determine whether the person is eligible for extradition will take place in the District Court. The Court must be satisfied, among other things, that the necessary documentation has been produced and that there is sufficient evidence relating to the offending that would justify the person’s trial if the conduct constituting the offence had occurred in New Zealand. It will also consider whether any mandatory restrictions or discretionary restrictions on surrender apply.
2.22If the Court is satisfied that the person is eligible for surrender, the matter is passed to the Minister of Justice for a final decision. The person or country may appeal to the High Court any questions of law arising from the District Court decision.
2.23In making his or her decision, the Minister will look at the grounds for refusing surrender, any danger that the person will be subjected to torture or the death penalty if surrendered, whether the person is a New Zealand citizen, and whether there are any extraordinary personal circumstances that would make surrender unjust or oppressive. The Minister may then issue a surrender order. The authorities in New Zealand liaise with the foreign country about the logistics of transferring the person.
Backed-warrant procedure for extradition from New ZealandTop
2.24Figure 3, below, shows the current process for extradition from New Zealand to Australia or the United Kingdom. The key differences between this procedure and the standard procedure are:
- the extradition request does not have to be made to the Minister of Justice but comes through the Police;
- the District Court is not required to consider whether there is evidence relating to the offending that would justify trial in New Zealand; and
- generally, cases are not referred to the Minister for a final decision on surrender. Instead, the District Court issues the surrender order following the eligibility hearing (although the District Court may decide that it is appropriate for the Minister to have the final decision).
2.25As a result of these differences, Part 4 is generally a faster, more straightforward process. However, the District Court must still consider whether the matter relates to an extraditable person, an extradition country, and an extradition offence and whether mandatory or discretionary restrictions on surrender apply.
Extradition to New ZealandTop
2.26The Act sets out a procedure through which New Zealand can request that a person in a foreign country who is accused or has been convicted of a New Zealand offence is returned to New Zealand. The Minister of Justice must make the request if the requested country is a country to which Part 3 applies, while the Commissioner of Police (or delegate) makes the request if the country is a country to which Part 4 applies. However, if the law of the requested country requires a request to be made to a particular person, that law applies. The request may be made directly to the competent authorities in the foreign country or through the Ministry of Foreign Affairs and Trade to a diplomatic or consular representative or Minister of that country.
Figure 2: Standard procedure (Part 3 of the Act)
Figure 3: Backed-warrant procedure (Part 4 of the Act)