5.3For the Extradition Act 1999 to apply, the request for extradition must relate to an “extradition offence”, as set out in section 4, unless an alternative formulation of extradition offence applies under an extradition treaty. An “extradition offence” under the Act requires:
- for a request from a foreign country:
- an offence punishable in the requesting country by a maximum penalty of not less than 12 months’ imprisonment; and
- that, if the conduct constituting the offence had occurred in New Zealand at the same time, it would also have constituted an offence punishable in New Zealand by a maximum penalty of imprisonment of not less than 12 months; or
- for a request from New Zealand, an offence punishable in New Zealand by a maximum penalty of not less than 12 months’ imprisonment.
5.4This provision replaced the approach in the Extradition Act 1965 of listing specific offences. The current approach provides increased flexibility and responsiveness as it does not require the Act to be updated in order for new offences to be covered.
5.5The terms of a bilateral extradition treaty between New Zealand and a foreign country may alter the requirements of the section 4 definition of an extradition offence. As is common practice, the existing treaties contain definitions for “extradition offence” for the purpose of the treaty. Often this is in the form of a list of specific offences, but there may be other requirements about which offences are covered. Where a treaty does define “extradition offence”, the section 4 definition does not apply, as the Act must be construed to give effect to the treaty.
5.6This creates three difficulties. First, given the age of most of New Zealand’s bilateral treaties, the list of offences may omit offences for which, in modern circumstances, extradition should be able to be sought or may include offences that are outdated. Second, the maximum penalty threshold in the Act will generally not apply. The exception is where the treaty was settled after the commencement of the Act. Third, dual criminality will not be required unless it is also explicitly included in the terms of the treaty. However, whether particular conduct is an offence in both countries will often have been taken into account during the treaty negotiation and drafting process in which the list of offences was drawn up.
Offences under multilateral treaties
5.7Some multilateral treaties to which New Zealand is a party require certain offences to be read into bilateral treaty obligations. Those offences are scattered across our statute book but are brought together in sections 101A and 101B of the Extradition Act. The multilateral treaties address international crime and include offences relating to:
- organised crime;
- human trafficking;
- defeating the course of justice;
- money laundering;
- forging and falsifying travel documents; and
- offences involving an organised criminal group and punishable by imprisonment of four years or more.
5.8As the offences in sections 101A and 101B are offences under New Zealand law, the dual criminality requirement clearly applies to these offences already. Indeed, this is made explicit in relation to section 101B. The offences are all sufficiently serious to have a maximum penalty of imprisonment in excess of 12 months. This means that these offences will all also qualify as extradition offences for countries that are not a party to the relevant multilateral treaty.