Roles and responsibilities
4.52The Minister of Justice has four key roles under the current regime. They are:
- referring the extradition request to the court (under the standard procedure);
- deciding whether to allow an ad hoc request from a country with which New Zealand does not have an extradition relationship;
- a decision to discontinue proceedings; and
- the final decision whether or not to surrender the individual.
4.53We discuss the last of these decisions in Chapter 8. There is a difficult question as to whether that decision is rightfully a political one or whether it is more appropriately a question for a judicial officer. The other bullet points are discussed below.
4.54A request for extradition under the standard procedure must be transmitted to the Minister of Justice before action may be taken under the Act. It is the Minister that has the discretion to request that a District Court judge issue an arrest warrant for the person sought for extradition. This effectively gives the Minister discretion as to whether extradition proceedings should proceed at all. The Act does not specify any grounds or factors for the Minister to consider in making this decision. As we understand it, it would be extremely rare that the Minister would decline to refer a case to the District Court once a formal extradition request has been received. This is because, by this stage, the request will already have been vetted by Crown Law prior to its formal submission. To have proceeded this far, the request will have some merit.
4.55Without statutory criteria, it is unclear what type of check this step provides on an extradition, especially as the Minister will consider the case again when considering the grounds for refusing surrender, if the court decides that a person is eligible for extradition. Having this ministerial discretion creates the potential for the Minister’s decision to be judicially reviewed, which can contribute to the delay in resolving an extradition case.
4.56We consider that a better approach is to give the central authority the responsibility for vetting extradition requests and requesting the District Court to issue arrest warrants. This would remove the discretionary element of the decision and make it a straightforward application of a statutory test. There would still be potential for the decision to be judicially reviewed. However, our proposals in Chapter 9 for a clear statutory appeal process are designed to reduce the likelihood of judicial review.
Deciding whether to allow an ad hoc requestTop
4.57Where a requesting country has not been designated as either a standard or backed-warrant country but must have its request considered as an individual request under Part 5 of the Act, the Minister of Justice has the discretion to decide whether the request should be dealt with at all. In our view, this should remain a ministerial decision because it involves the instigation of an ad hoc extradition relationship with a country that does not have a formal, permanent extradition relationship with New Zealand. In Chapter 6, we discuss proposals and options for how countries should be categorised under a new Act. Our preference is that there would no longer be a process for consideration of ad hoc requests because all countries would be automatically categorised. If, however, such a process were to be included in new legislation, we consider that the role should be carried out by the Minister of Justice.
4.58Under the standard procedure, the Minister of Justice can refuse to refer the case to the District Court for the issue of an arrest warrant. The Minister may also order proceedings to be discontinued after a provisional warrant has been issued. The Minister has no involvement, however, during the court’s eligibility hearing procedures, including no ability to halt proceedings until after the decision on eligibility has been made.
4.59We consider that these powers, along with more general powers to halt proceedings when necessary or appropriate, are better handled by the central authority as the agency responsible for the administrative and procedural aspects of the extradition process.
Who should make the non-court decisions?Top
4.60The Minister of Justice is currently the decision maker for all non-court decisions under the Extradition Act, and we suggest that the Minister of Justice continues to be the appropriate Minister to make the non-court decisions.
4.61It is desirable to separate the administrative and procedural roles under the Act (to be played by a central authority (being either the Attorney-General or the Solicitor-General under our proposals) from decisions of a diplomatic or political nature under the Act, such as the designation of countries into specific categories and the decision to surrender. These decisions need to be assessed independently, and accordingly, to protect against any perceived conflict of interest, it is important that the extradition request is passed to a separate group of advisers than those involved in earlier stages of advice or representation.