Categorisation of countries
6.5The present system of categorisation in the Extradition Act involves complexity both in the number and type of categories and the way that countries are categorised. It has not proved effective as a means of creating clear pathways for different types of countries to engage with New Zealand on extradition.
6.6The Extradition Act has two main categories of countries. In addition, there are two subcategories of countries, which add to or alter elements of the decision making process. Countries must fall within one of these categories in order for their extradition request to be able to be considered in New Zealand. The current categories can be summarised as follows:
- Countries covered by Part 4 of the Act (Part 4 Country): Part 4 of the Act relates to Australia and any country designated under section 40. The sole designated country is the United Kingdom. The simpler backed-warrant procedure applies to these countries. Among other features, under that process, requesting countries are not required to provide evidence relating to the offending with their extradition requests.
- Countries covered by Part 3 of the Act (Part 3 Country): Part 3 relates to other Commonwealth countries, countries with which New Zealand has an extradition treaty, and any other country specifically designated to be in this category under Part 5 (no countries have been designated for this purpose). The standard process applies to these countries.
6.7Within a Part 3 Country there are two further subcategories:
- Countries covered by Part 5 of the Act (Part 5 Country): Part 5 provides for a special process by which countries can be designated as falling within Part 3 for the purpose of a specific extradition request.
- Exempted countries: Section 17 of the Act provides that Part 3 countries can be exempted from the aspects of the standard procedure. Rather than having to provide full evidence with their extradition request, they can produce a record of the case, which summarises the evidence of the offending. The exempted countries are Canada, the Czech Republic, Tonga, and the United States.
How countries are categorisedTop
6.8The current categorisation system requires ministerial and Cabinet decisions to include countries under each category. Criteria under the Act guide those decisions.
6.9To summarise, the following range of criteria are contained in the Act:
- The similarities between the processes of arrest and trial in the foreign country and New Zealand.
- The foreign country’s ability and willingness to extradite to New Zealand and the process that applies in that country to an extradition request from New Zealand (reciprocity).
- The rules in the foreign country protecting a person from prosecution for crimes other than those to which the extradition relates (speciality) and from extradition to a third country.
- Giving effect to the commitment to extradite to foreign countries (even those with which New Zealand does not have an extradition treaty).
6.10Designation as a Part 4 Country is made by the Governor-General by Order in Council on the recommendation of the Minister of Justice. The Minister must be satisfied as to the circumstances in which a person may be arrested in the other country and similarities to the process in New Zealand, the other country’s ability to extradite to New Zealand (reciprocity), the other country’s speciality rules, and the other country’s rules about surrendering a person to a third country.
6.11Designation as a Part 3 Country or one of its subcategories can take place in one of the following ways:
- Any Commonwealth country other than a Commonwealth country to which Part 4 applies.
- Where a country has an extradition treaty with New Zealand, the country is brought under the Act following designation by the Governor-General by Order in Council.
- Where a country is not a Commonwealth country and does not have an extradition treaty with New Zealand, the country is brought under the Act following designation by the Governor-General by Order in Council, on advice from the Minister of Justice. The only criterion of which the Minister is required to be satisfied is reciprocity.
- Countries are brought into the Part 5 subcategory by the Minister who must consider any undertakings made by the country that it will extradite to New Zealand (reciprocity), the seriousness of the offence in question, the object of the Act, and any other matters the Minister considers relevant.
- Countries are brought into the exempted countries subcategory by the Governor-General by Order in Council, on the recommendation of the Minister of Justice. The Minister must consider whether the country has a similar process to the record of the case procedure that would apply to an extradition request from New Zealand to that country (reciprocity).