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Imbalance in surrender: the backing of warrants procedure with Australia under Part 4 of the Extradition Act 1999

The backing-of-warrants is a fast-track procedure for extradition regulated under Part 4 of the Extradition Act 1999. This thesis critically scrutinises a recent review of the legislation by the Law Commission as it relates to the impact of its proposed new Act on the current backed-warrant procedure, particularly as it relates to Australia. The Commission’s proposal that its new Act will achieve the Commission’s objective to “strike the necessary and appropriate balance between protecting the rights of those whose extradition is sought and providing an efficient mechanism for extradition” will be analysed and critiqued. It will be shown that, the Commission has tipped the balance towards the liberty interests of the requested person, when it proposed to increase the breadth of grounds by which the courts may refuse surrender under a new “unjust or oppressive” provision. As a consequence, the proposed legislative provisions may risk breaching the doctrine of comity and frustrating the backed-warrant procedure. This thesis further posits that comity should not be over-emphasised, particularly as the Commission has not at all or has inadequately considered the disparity that exists between the way comity is applied in practise by the Australian and New Zealand courts. As a consequence, the proposed less onerous test for Australia, is unjustified. While the Commission’s proposal gives weight to the growing importance of human rights as a determining factor in surrender nevertheless, the Commission’s proposals lack coherency and fail to delineate between the standard procedure and the backed-warrant procedure. In absence of any evidence that the efficacy of the backed-warrant procedure is wanting, the impact of the Commission’s proposals, are unlikely therefore to achieve the balance it strives to achieve. The argument put here is that there is a strong principled case for strengthening human rights protections in the current backed-warrant procedure. In that regard, this thesis advances the proposition that in combination, the Commission’s New Zealand Bill of Rights proposal and a role for a proposed central authority - subject to reconceptualising comity in this context to one that includes a human rights component. To that end, this thesis advocates replacing the balancing act paradigm that purports to reconcile the competing interests underpinning extradition with an assessment of human rights as a primary determining factor in surrender at both the initial stages and latter stages of the backed-warrant procedure. This model, as proposed, will maintain the fast-track nature of the backed-warrant procedure as it would allow the judiciary to differentiate risk between low-level and gross forms of human rights violations or abuse. Finally, this thesis posits that the jurisprudential acceptance in the courts of the extraterritorial effect of the New Zealand Bill of Rights Act 1990 in relation to Australian Police conduct in New Zealand merits attention.
Type of thesis
Butler, R. D. (2017). Imbalance in surrender: the backing of warrants procedure with Australia under Part 4 of the Extradition Act 1999 (Thesis, Master of Laws (LLM)). University of Waikato, Hamilton, New Zealand. Retrieved from https://hdl.handle.net/10289/11444
University of Waikato
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