This review covered the Extradition Act 1999 and Mutual Assistance in Criminal Matters Act 1992. These Acts provide a framework for formal assistance between New Zealand and foreign governments in the investigation and prosecution of crime. They interact closely with New Zealand’s international legal obligations and the Government’s interaction with foreign governments. The legislation needs reviewing in light of developments in the international context, including globalisation, technological change and increasing travel, transnational crime and cooperation between countries. The purpose of the review is to ensure that these Acts contain processes that are efficient, effective, and not overly complex or unnecessarily expensive, but that also provide important checks and balances to protect those being investigated or prosecuted.
Terms of reference
The review has regard to:
- the changing international context, including the opportunities and risks posed by globalisation, technological change, increasing international travel and transnational crime, and increasing cooperation between countries;
- New Zealand’s international legal obligations;
- the wider context of the New Zealand government’s interaction with foreign governments, including the increasing focus on international criminal cooperation at an inter-governmental level;
- the importance of extradition and mutual assistance in effectively combatting transnational and domestic crime; and
- proper safeguards of the rights of those being investigated or prosecuted for committing crimes.
The review aimed to:
- review the alignment of New Zealand’s current legislative framework to international obligations relating to extradition and mutual assistance;
- review the alignment of New Zealand’s extradition and mutual assistance framework and mechanisms with international best practice;
- improve the efficiency, effectiveness and quality of New Zealand’s framework and mechanisms for extradition and mutual assistance;
- consider what changes are required to ensure that New Zealand’s legislative framework for mutual assistance and extradition is appropriate for the modern 21st century context; and
- uphold fundamental principles, rights and protections that ought to be present in New Zealand’s extradition and mutual assistance scheme, including proper protections of human rights.
The review considered:
- the principles and policy of extradition and mutual assistance law;
- technical issues with the Extradition Act and Mutual Assistance in Criminal Matters Act;
- the interaction of the Extradition Act and Mutual Assistance in Criminal Matters Act with other legislation and law enforcement cooperation practices, and with other legislation and other bi-lateral and multilateral treaties; and
- the extent to which New Zealand’s current legislative framework inhibits effective cooperation and imposes unnecessary costs on government.
The review will not consider purely operational matters, including the funding of operational and administrative arrangements.
The review will consider the following issues (in addition to others that arise during the review and particular anomalies in the operation of the Acts):
- modernisation and streamlining of the operation of the Acts;
- the scope and coverage of the Acts, including the circumstances in which assistance may be provided;
- the optimum structure for the way in which the New Zealand government as a whole provides assistance or facilitates extradition, and the role and responsibilities of particular Minsters, departments and agencies within the structure;
- grounds for denying extradition and mutual assistance; authentication and admissibility of evidence/information required for an extradition or obtained pursuant to a mutual assistance request;
- the form and procedure of eligibility hearings for extradition;
- the relationship between the mutual assistance legislation and other regimes for the sharing of information relating to the investigation and prosecution of crime within the New Zealand government and between New Zealand and other governments’ law enforcement agencies;
- the relationship between the Extradition Act and treaty arrangements, including those inherited from the United Kingdom; and
- review and appeal processes.
Extradition and Mutual Assistance in Criminal Matters (NZLC IP37, 2014)
The Commission's Issues Paper, Extradition and Mutual Assistance in Criminal Matters (NZLC IP37, 2014) describes the current infrastructure that governs extradition and mutual assistance in criminal matters in New Zealand, and sets out the Law Commission’s preliminary views on where reform in these areas is needed. The Commission considers the issues or problems that need to be addressed in both the Extradition Act 1999 and the Mutual Assistance in Criminal Matters Act 1992 and sets out its suggestions and options for reform.
In preparing this Paper, the Commission engaged with various public and private sector stakeholders. This has included a group of agencies comprising of the Crown Law Office, the Ministry of Justice, the New Zealand Police and the Ministry of Foreign Affairs and Trade who have met on numerous occasions to discuss various issues.
Modernising New Zealand’s Extradition and Mutual Assistance Laws (NZLC R137, 2016)
The Commission’s Report, Modernising New Zealand’s Extradition and Mutual Assistance Laws (NZLC R137, 2016), recommends that the Extradition Act 1999 and the Mutual Assistance in Criminal Matters Act 1992 should be repealed and replaced by more modern, simplified legislation. To that end, the Commission has prepared draft Extradition and Mutual Assistance Bills for the Government to consider. If enacted, the draft Extradition Bill would create:
- A Central Authority with primary responsibility for managing all incoming and outgoing extradition requests.
- A core statutory process for dealing with incoming extradition requests from any country. This could be supplemented by bilateral extradition treaties in certain limited ways.
- A two-category approach to extradition. There would be a simplified extradition procedure for requests from Australia and approved countries. Requests from any other country would be processed using the standard extradition procedure. The main difference between the two would be that under the standard procedure the District Court would examine the strength of the prosecution case against the person sought to determine if there is a case to answer. The evidence for that inquiry would be presented in summary form. Under the simplified procedure there would be no evidential inquiry.
If enacted the draft Mutual Assistance Bill would:
- Strengthen the core statutory process for dealing with incoming mutual assistance requests from any country. This could be supplemented by international treaties and conventions.
- Broaden the types of assistance that New Zealand can provide to foreign countries in criminal investigations and prosecutions.
- Clarify the relationship between the Act and other mutual assistance arrangements between regulatory agencies and their foreign counterparts.
The Report itself is divided into four parts. Part 1 discusses the Commission’s general approach to the reference and the major themes underlying both extradition and mutual assistance. This Part builds on the detailed introduction of the key actors, concepts and issues that was in the Issues Paper. The two should be read alongside each other. Part 2 of the Report discusses the issues that relate solely to extradition and Part 3 then contains a similar discussion in relation to mutual assistance. Part 4 consists of the draft Extradition and Mutual Assistance in Criminal Matters and for the Recovery of Criminal Proceeds Bills, with commentary on selected provisions.
The Report aims to give readers both a sense of the major policy decisions that lie behind the Commission’s recommendations and a detailed understanding as to how the recommendations could be implemented in practice.
The Government responded to the Law Commission’s report on 29 July 2016. The Government accepted the Commission’s main recommendations to consider the enactment of the Extradition Bill and Mutual Assistance in Criminal Matters and for the Recovery of Criminal Proceeds Bill, which were attached to the Report. Given the complexity of the matters addressed by the proposed legislation, and the potential costs involved, the Government directed the Ministry of Justice to undertake further analysis of the Commission’s more detailed recommendations.