Surrender and temporary surrender

30 Minister must determine whether person to be surrendered

(1)

If the court issues a warrant for the detention of a person under section 26(1)(a) or section 28(2)(a), the Minister must determine in accordance with this section whether the person is to be surrendered.

(2)

The Minister must not determine that the person is to be surrendered—

(a)

if the Minister is satisfied that a mandatory restriction on the surrender of the person applies under section 7; or

(ab)

if the Minister is satisfied that a mandatory restriction on the surrender of the person applies under the provisions of the treaty (if any) between New Zealand and the extradition country; or

(b)

if it appears to the Minister that there are substantial grounds for believing that the person would be in danger of being subjected to an act of torture in the extradition country; or

(c)

if the person is a New Zealand citizen, and—

(i)

an extradition treaty in force between New Zealand and the extradition country; or

(ii)

an Order in Council made under section 16 in relation to the extradition country; or

(iii)

if there is no applicable treaty or Order in Council, any undertakings or arrangement in relation to extradition between New Zealand and the extradition country,—

provide that no New Zealand citizen may be surrendered.

(3)

The Minister may determine that the person is not to be surrendered if—

(a)

it appears to the Minister that the person may be or has been sentenced to death by the appropriate authority in the extradition country, and the extradition country is unable to sufficiently assure the Minister that—

(i)

the person will not be sentenced to death; or

(ii)

if that sentence is or has been imposed, it will not be carried out; or

(b)

it appears to the Minister that a discretionary restriction on the surrender of the person applies under section 8; or

(c)

the person is a New Zealand citizen and—

(i)

if there is a treaty in force between New Zealand and the extradition country, it does not preclude the surrender of New Zealand citizens; or

(ii)

if there is an Order in Council made under section 16 in relation to the extradition country, it does not preclude the surrender of New Zealand citizens; or

(iii)

if there is no applicable treaty or Order in Council in relation to the extradition country, any undertakings or arrangement in relation to extradition between New Zealand and the extradition country do not preclude the surrender of New Zealand citizens—

but the Minister is satisfied that, having regard to the circumstances of the case, it would not be in the interests of justice to surrender the person; or

(d)

without limiting section 32(4), it appears to the Minister that compelling or extraordinary circumstances of the person including, without limitation, those relating to the age or health of the person, exist that would make it unjust or oppressive to surrender the person; or

(e)

for any other reason the Minister considers that the person should not be surrendered.

(4)

Subsection (3)(c) applies even if the person is a citizen of both New Zealand and the extradition country.

(5)

The Minister must not determine that the person is to be surrendered unless by virtue of—

(a)

the law of the extradition country; or

(b)

a provision of an extradition treaty in force between New Zealand and the extradition country; or

(c)

an undertaking given by the extradition country to New Zealand—

the person, after being surrendered to the country, will not, unless the person has left or had the opportunity of leaving the country,—

(d)

be detained or tried in that country for any offence committed, or alleged to have been committed, before the person’s surrender other than—

(i)

an extradition offence to which the request for the person’s surrender relates; or

(ii)

any other offence carrying the same or a lesser maximum penalty of which the person could be convicted on proof of the conduct constituting any extradition offence to which the request for the person’s surrender relates; or

(iii)

an extradition offence in relation to the country (not being an offence for which the country requested the surrender of the person) in respect of which the Minister consents to the person being so detained or tried; or

(iv)

an offence (not being an extradition offence) for which the person has consented to surrender under section 29; or

(e)

be detained in that country for the purpose of being surrendered to another country for trial or punishment for any offence that is alleged to have been committed, or was committed, before the person’s surrender to the first-mentioned country, other than an offence in respect of which the Minister consents to the person being so detained and surrendered.

(6)

For the purposes of determining under this section whether the person is to be surrendered, the Minister may seek any undertakings from the extradition country that the Minister thinks fit.

Compare: Fugitive Offenders Act 1881 s 29A(3), (4) (Imp); 1965 No 44 ss 5(1)(c), (2), 5A; Extradition Act 1988 s 22(3), (4) (Aust)

Section 30(2)(ab): inserted, on 19 December 2002, by section 9 of the Extradition Amendment Act (No 2) 2002 (2002 No 64).