Law change needed to tackle cross-border crime

The commission said the litigation surrounding the Kim Dotcom extradition case highlighted that procedural uncertainty can cause considerable delay. Photo / Nick Reed

A central authority should be set up to deal with extradition requests and tailor-made rules should be followed to avoid the kind of uncertainty and delay that has characterised the Kim Dotcom case, the Law Commission says.

The growing problem of cross-border crime means the law should be changed to ensure New Zealand does its part, a review by the commission has concluded.

The report, released today, contains three key recommendations:

•Requests from the vast majority of countries should be processed in the same way. Currently, the formal extradition steps vary considerably depending on which country is making the request, and treaties in place that are mostly over 100 years old.

The commission recommends that only Australia and probably the United Kingdom should be entitled to have requests dealt with through a "simplified" process, meaning the District Court would not examine the strength of the prosecution case against the person sought.

•Tailor-made rules should guide extradition proceedings. There should be a single appeal route, rather than the current regime that enables multiple and separate appeals and judicial reviews.

The commission said the litigation surrounding the Kim Dotcom extradition case -- Dotcom and his three co-accused were arrested in January 2012 -- highlighted that procedural uncertainty can cause considerable delay.

•A new central authority should be created to manage all extradition requests. It would consider whether to commence an extradition proceeding, a call that would involve assessing the likelihood of success.

Geoff McLay, the lead commissioner on the project, said currently extradition requests cut across many departmental boundaries.

"If our recommendation for a central authority is adopted, then there will be one agency with primary responsibility for extradition. It will have a clear role and ownership of this work."

The commission has also recommended making it easier for New Zealand authorities to give "mutual assistance" to another country in a criminal investigation or prosecution -- for example, by obtaining a New Zealand search warrant or freezing funds here.

The Law Commission said making the extradition process more straightforward could be done at the same time as protecting the rights of the person sought.

The new central authority would make an independent decision on an extradition request, in much the same way as a prosecutor decides whether to take a case to trial.

If extradition proceedings are commenced, the District Court would examine whether the criteria for extradition are met. If they are, the court would consider if there are other grounds that require extradition to be refused -- such as how a person would be treated in the requesting country.

The Law Commission has recommended that the court be given sole responsibility for deciding on nearly all of the grounds for refusal, with only a few grounds reserved for sole consideration by the Minister of Justice.

Currently, the Minister of Justice decides on grounds for refusing surrender.