4.11While the Attorney-General is the formal Central Authority for mutual assistance in New Zealand under the Mutual Assistance in Criminal Matters Act 1992 (MACMA), there is no official central authority for extradition. The various functions that a central authority would have responsibility for are shared between several agencies.
4.12As we see it, the central authority would properly be resourced to receive formal extradition requests under the standard process for extradition and would be responsible for vetting the requests and accompanying information. It would liaise with requesting countries to improve requests where required. It would refer formal requests to the court for extradition proceedings and could act as the formal applicant for extradition before the court. The central authority would have responsibility for instructing counsel and could halt proceedings as necessary.
4.13We have considered whether there is merit in also having the central authority oversee backed-warrant applications. In our view, the backed-warrant procedure seems to work well as currently administered by the Police, who have extensive international contacts through Interpol.
4.14It would not be the central authority’s role to advise the Minister of Justice on the exercise of Minister’s powers. In the model we propose, there would be a clear division between the administrative and procedural functions, which would primarily be carried out by the central authority, and the political role, which would be carried out by the Minister of Justice as advised by his or her Ministry. This alleviates the potential for a perceived conflict of interest and creates a workable separation of responsibilities.
4.15The proposed approach has the advantage of establishing one agency as the central contact point and manager for extradition requests under the standard procedure. It removes the confusion and doubling up of roles that occur in the present system. Having a central authority would not remove the need for other government agencies to play a role but would allow them to carry out specialised tasks that accord with their expertise, while being coordinated by the central authority. The central authority would also have the purpose of ensuring greater oversight and coherence in New Zealand’s overall approach to extradition than can occur under the current approach where no single agency has responsibility for the overall process.
4.16Outlining the role of the central authority in statute would also make the division of roles more transparent. At present, most of what the various agencies do is not described in the Act or is hidden behind a ministerial power or function. This approach would provide more clarity for requesting countries and others seeking to understand how the extradition process functions in New Zealand.
4.17Notwithstanding the approach above, in proposing the appointment of a central authority, we are concerned not to alter the processing of requests that use the backed-warrant procedure under the current Act.
4.18The Extradition Act is silent on who receives backed-warrant requests and who decides whether to refer such a request to the court. In practice, it is the New Zealand Police.
4.19The current process for backed-warrant requests operates relatively smoothly and efficiently. This should not be disturbed by the introduction of a central authority, which is intended to improve the efficiency and effectiveness of the management of requests. It is not proposed that the central authority would vet backed-warrant requests or be involved in the decision to apply to the court regarding these requests. We anticipate that the central authority’s involvement in backed-warrant requests would be restricted to matters such as reporting numbers and outcomes.
4.20Currently, the majority of functions that a central authority would hold are carried out by Crown Law. Crown Law has the necessary expertise to carry out the central authority role in practice, and it is our view that it should do so under the proposed scheme.
4.21It would be helpful to align the central authority for extradition with the Central Authority that currently exists for the purposes of MACMA. This is, in practice, carried out by Crown Law. This would allow a coordinated approach to the assistance New Zealand provides to foreign countries in criminal matters, which is particularly beneficial where a foreign country’s request involves both extradition and MACMA proceedings.
4.22Usually, an individual rather than an agency is named in statute in such a role. We propose that the new Act take the same approach and suggest that the two options are the Attorney-General or the Solicitor-General. In practice, whichever is chosen, the work would be carried out within the Crown Law Office.
4.23The Attorney-General is both a political and non-political actor as he or she is both a Cabinet Minister and the senior law officer of the Crown. In the law officer role, the Attorney-General is responsible for conduct of the prosecution system. In exercising this role, the Attorney-General provides advice to Cabinet and exercises statutory decision-making responsibilities, in particular in relation to the criminal justice system. The Attorney-General has the obligation to act on these matters independently and free from political considerations.
4.25The Attorney-General would be the most appropriate person if it is considered that the central authority’s role should reside in an executive decision maker who is accountable to Cabinet. The Attorney-General would be able to provide senior oversight and a political viewpoint where necessary, which may be suitable to the serious issues that can be raised in extradition proceedings. The role would have some similarity to the Attorney-General’s general prosecutorial oversight in the criminal justice system. In contrast, the Solicitor-General would be the better choice if it is considered that a person with complete political independence is preferable.
4.26Outside of the statutory process in the Extradition Act, an important task must be carried out in informally vetting an extradition request to make sure it meets requirements under the Act. This process is an opportunity to identify any problems or flaws in a request and to seek to remedy them, most likely through a requesting country providing further information or resubmitting information in an acceptable format. It is also possible that very unlikely or spurious requests are able to be dissuaded before a formal request is made. For requests under the standard procedure, this function is currently carried out by Crown Law.
4.31It is desirable to have this issue clarified in legislation to remove the present uncertainty. We propose that the central authority should be the applicant. This role accords with the central authority’s administrative and procedural role in managing an extradition request from a foreign country. It removes any difficulty about according a foreign government status as a party before the courts in extradition proceedings. While extradition is a state-to-state process, New Zealand’s role is to meet its international obligations by carrying out the aspects of the process that occur here. It makes sense, therefore, that the role of applicant sits with the New Zealand Government.
4.32There could be concern that the role of the requesting country, as instigator of the proceedings, would not be as clear as is currently the case, because the central authority would be stated as the party to proceedings. This could be resolved by including wording in the intitulement that makes this relationship clear, such as “[Central Authority] (request by the Government of X)”.
4.33Crown Law has raised with us the uncertain nature of the protection that might be accorded to communications made between it and requesting governments in the context of its role as Central Authority in MACMA cases and essentially as an adviser to those countries in extradition cases.
4.34In the non-litigation context, such communications will be protected under a number of grounds in the Official Information Act 1982 or the Privacy Act 1993, most notably as information provided in confidence by foreign governments. In the litigation context, it is possible that such communications might be covered by legal professional privilege and hence not available for discovery or disclosure, but this is not certain and depends on whether a foreign country might be considered a client seeking legal advice.
4.35It will be clear under our proposals that the foreign country is not a client of the central authority and consequently that there be no legal professional privilege. We accept that the communications with the foreign country, in the ordinary course of events, should not be subject to disclosure, but at the same time, we think that there ought to be an overriding disclosure requirement to the person sought when that information might materially affect the outcome of the application.
4.36Arguably, much of a request to a central authority for extradition will involve significant communication back and forth that one would expect of a legal adviser assisting a client through a difficult process.
4.37One solution is to deem communications between a requesting country and the central authority to be privileged in the same way as more traditional requests for legal advice. The requesting country would then have a privilege in all of its communications with the central authority. It would decide whether that information was disclosed. It might be necessary though, given the role of the central authority as the party to the New Zealand proceedings and the consequent obligation to act fairly, to give the central authority the ability to allow disclosure of such information where fairness requires such a disclosure.
4.38This proposal would have the benefit of essentially invoking a familiar regime. However, in our review, we have been concerned to emphasise that the central authority exercises it functions in its own right. Thus, while there is some benefit in invoking the familiarity of legal professional privilege, equating the central authority with a traditional legal adviser risks somewhat muddying the waters.
4.39The other solution would be a special protection in both statutes for such information that would have a similar effect to privilege. Such a provision would again allow the central authority to make a disclosure when required by fairness and allow the requesting country to withdraw the application if it preferred that to making the necessary disclosure. The separate provision has the advantage of clearly preserving the independent role of the central authority.
4.40We prefer a separate provision that communications between the central authority and the requesting country ought not to be disclosed unless in the interests of justice.
Q3 Do we need a central authority for extradition?
Q4 Who should be appointed as the central authority for extradition?
Q5 What should be the relationship between the role of the New Zealand Police in backed-warrant extraditions and the role of a central authority?
Q6 How should privilege work in extradition?