The final say on whether Kim Dotcom will stand trial in the US may lie with a politician. Which is just the way the law says it should be.

Following some rather breathless speculation by Patrick Gower over at TV3, Kim Dotcom's fate under a future Labour/Green Government has become quite the talk d'jour. This hasn't been helped, frankly, by some loose language from Russel Norman on the topic. But still, the overall story strikes me as being a bit of a beat up.

Let's start with the facts, then move to the analysis.

The way the Extradition Act 1999 works is a bit tricky – there's a basic overview here, where you can also open a .pdf copy of a flowchart explanation that will do more to confuse than enlighten you. But to simplify matters horribly ... when it comes to extraditions to the USA, there are three steps involved.

First, the USA has to ask NZ to "surrender" someone to them, providing lots of documentation to back up the request.

Second, a District Court has to examine the basis for the request, to check that the person is eligible for surrender. This involves checking that the required documentation is in order, that the alleged offence meets the threshold for sending someone over for trial (and that the alleged offending isn't really a form of political or other persecution), that the alleged behaviour also would be a serious offence here in NZ, and so on. Note that this judicial examination is pretty much formal in nature; the court (by-and-large) isn't interested in the particular circumstances of the request or the individual concerned, rather it just wants to see the process is being complied with.

Third, if the District Court rules that a person is eligible for surrender, the decision to actually surrender her or him to the US authorities is taken by the Minister of Justice. Note that this is a different exercise to that carried out by the court, and looks (by-and-large) at completely different things. There are certain circumstances in which the Minister can never surrender a person that a court has said is eligible for extradition, none of which apply in Dotcom's case. Beyond this, there also is an overarching discretion on the Minister's part whether or not to approve a person's surrender. Because, under s.30(3)(d)&(e):

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

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

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

Now, we need to be a bit careful here. The apparently open-ended language of this discretion is limited somewhat by the context of the Act, which (in terms of the US) is to give effect to the Treaty we've signed with them allowing for extraditions to take place.

A Minister saying something like "I just don't like the US, and I don't want to send people there to stand trial" would not have a reason, in terms of this Act, to refuse to surrender someone a court has determined otherwise is eligible for extradition. A Minister can't use personal beliefs that are in conflict with the very purpose of the legislation as the basis for exercising her or his discretion.

But a Minister who believes that the arrest of and investigation into an individual here in NZ was so tainted by illegality as to make it inconsistent with the rule of law? Well, I'm not going to go so far as to say this definitively would be a sufficient reason to say "no" to surrender, but it certainly looks like the sort of thing that could in theory form a proper ground for the exercise of discretion (subject to a lot more thought about the issue and advice from international lawyers and the like).

Which is pretty much what David Cunliffe said to Patrick Gower, while at the same time saying that "because [Dotcom's case is] currently before the courts I don't think that's a matter politicians should be opining on." Which seems eminently wise to me ... because the only alternative would be to say "I don't care how badly Dotcom's case was handled (or anything else about him, for that matter) – if the court say's he's eligible for surrender, then we're handing him straight over to the US without further question."

And while some commentators have argued that this is how the matter should be handled, to do so would be unlawful. The Minister has a potential discretion under the Act. So the Minister can't ignore this discretion and surrender everyone that the courts say are eligible for extradition without any further thought. Because to do so would be to fail to comply with the Minister's obligations under the statute, meaning that the Minister's decision would inevitably be overturned by the court on the subsequent judicial review.

So, a pass mark for David Cunliffe, then.

Russel Norman, but, went a bit further. Here's the quote from the TV3 story:

3 News: A Government of the day has to sign off on Kim Dotcom's extradition - should the Government sign off on Dotcom's extradition?

Norman: No. I've always said I don't support the extradition process. I mean, I just don't think it's fair. I mean the fairness isn't there - look at the way they have been acting illegally against him... They illegally raided his mansion, they illegally obtained evidence, they illegally gave the evidence to the U.S Government against the directions of a judge. That is not a lawful or fair process...The case that John Key has jacked up with the US Government I don't think stands up.

3 News: So if the Greens were in power, would you fight to keep Kim Dotcom in New Zealand?

Norman: Yes. I think that we would - but if you are in Government you would have to look at the lawful rules around it - you don't want a Government that is acting unlawfully.

This phrasing is a little unfortunate, because it looks a lot like Norman has already made up his mind on the matter. In fact, it more than looks like this – he pretty much explicitly says "the Greens wouldn't send him to the US", before hurriedly remembering at the end that there's a legal process governing that decision.

In a strict legal sense, this probably doesn't matter very much. The final decision on extraditing Dotcom will be taken by the Minister of Justice, and there is zero chance that Russel Norman would hold this position in any future Labour/Green Government.

In fact, it seems unlikely that Justice would be a portfolio the Greens would be targetting for any of their MPs. But if one of them does somehow end up as Justice Minister, Norman's comments will make it tricky for them to make the surrender decision without facing accusations (whether in court or in the public sphere) of predetermination.

So beyond the strict legalities of the matter, the trouble with Norman's words is that they were too honest. As they come closer to power, the Greens are going to have to be more careful how they speak. Because once you are in power, even on matters that you feel really, really strongly about, you need to be able to pretend that you are coming to decisions with a mind that is amenable to change based on the facts before it.

That's government.

Comments (21)

by william blake on February 12, 2014
william blake

There is speculation that theTrans Pacific agreement will allow American business to use  legal recourse if we are conducting business in an unregulated way. Ie sueing Farmac for drug subsidies. I wonder if the agreement will allow for US challenges to any law, including extradition?

by Graeme Edgeler on February 12, 2014
Graeme Edgeler

But if one of them doessomehow end up as Justice Minister, Norman's comments will make it tricky for them to make the surrender decision without facing accusations (whether in court or in the public sphere) of predetermination.

How would it get to Court, the United States is a party to the proceedings in name only. The lawyers who are representing them are the Crown Law Office. Who exactly is going to judicially review any decision to refuse extradition?

by Andrew Geddis on February 12, 2014
Andrew Geddis

Who exactly is going to judicially review any decision to refuse extradition?

David Farrar. Or similar.

Don't think there's political hay to be made here?

by Peter Green on February 12, 2014
Peter Green

The thing that gets me, is Judith Collins has already made up her mind (based on cosy dealings with the Obama administration) that she will extradite Dotcom. But as long as she lies about it on television, that's okay.

Meanwhile, Russel Norman has formed an opinion that's probably sound but might technically be a little bit premature, but if he's honest about it on tv then he's done something "wrong".

by Andrew Geddis on February 12, 2014
Andrew Geddis

Peter.

Yes. 

That's government.

by James Meager on February 12, 2014
James Meager

Kia ora Andrew,

I don't Law very well these days, can you explain what you mean when you say a Minister can't ignore the power to use discretion? Does the Minister have no discretion as to whether they must consider using their discretion?

by Fentex on February 12, 2014
Fentex

Does the Minister have no discretion as to whether they must consider using their discretion?

I do see that there is a real dilemma here. In that, while it has been government policy to regard policy as a responsibility of Ministers and administration as a responsibility of Officials, the questions of administrative policy can cause confusion between the policy of administration and the administration of policy, especially when responsibility for the administration of the policy of administration conflicts, or overlaps with, responsibility for the policy of the administration of policy. 

by Andrew Geddis on February 12, 2014
Andrew Geddis

@James,

It means that, if a person whom the court has determined is eligible for surrender puts a reason to the Minister why she or he should not surrender him or her, the Minister cannot legally say "I'm not even going to consider this reason, yer out of here." Of course, the Minister can always say "I've considered that reason, but I don't think it is good grounds to refuse to surrender you, so yer out of here."

by Rich on February 12, 2014
Rich

there is zero chance that Russel Norman would hold this position in any future Labour/Green Government

I guess that when the Greens overtake Labour and form a Green/Labour government, he'll be PM. Or Metiria will. They'll probably make Keith Locke or John Minto Minister of Justice,

 

by Rich on February 12, 2014
Rich

Seriously though, Labour and/or the Greens might want to form a policy on the limits of criminal copyright legislation. That's legitimate discussion of future legislative policy.

And if such new law were to exclude conduct such as Dotcom's from the scope of criminal sanction, then, although he would still be technically eligible for extraditon (assuming the current court process decided he has a case to answer for criminal copyright violation), there would be pretty firm grounds not to extradite him.

 

 

by Peter Matthewson on February 12, 2014
Peter Matthewson

It puzzles and concerns me that he has become this folk hero of the left, despite his outrageously ostentatious lifestyle, pet giraffes (does importing them here away from their natural habitat really fit with the Greens' animal welfare policy), fleet of Cadillacs, Mercedes, Rolls Royce, Lamborghinis, I've yet to see a photo of him posing with a Toyota Prius, relaxing with spa pools full of playboy bunnies that I wouldn't think would endear him to feminists, and the fact that his first political act in this country was to make a $50,000 dollar donation to John Banks.It is also worth noting that the victims of his alleged offending would be the artistic community, many of whom in this country would be Green supporters. Ultimately it gives the Greens no credence to be publicly identified with him. 

by Ross on February 13, 2014
Ross

It puzzles and concerns me that he has become this folk hero of the left

I wasn't aware he had become a folk hero of the Left, any more than Bob Jones was a folhk hero of the Left for contributing to Rob Muldoon's downfall. If Dotcom can contribute to National's demise at the next election, I doubt the Left will be complaining. Indeed they'd be silly not to talk to Dotcom to further that end.

by Alan Johnstone on February 13, 2014
Alan Johnstone

Making no comment on the law, I do feel obliged to point out that Kim Dotcom doesn't have pet Giraffes, regardless of what some people in the media may report.

He has two statues of Giraffes, nothing more.

by Andrew Geddis on February 13, 2014
Andrew Geddis

They'll probably make Keith Locke or John Minto Minister of Justice,

Difficult, as Keith Locke will not be a member of Parliament, and for John Minto to become one, Mana would have to win 3 seats (at least).

Making no comment on the law, I do feel obliged to point out that Kim Dotcom doesn't have pet Giraffes, regardless of what some people in the media may report.

He has two statues of Giraffes, nothing more.

It's New Zealand's other multi-millionaire political gadfly that has the pet Giraffes.

by Ross on February 13, 2014
Ross

He has two statues of Giraffes, nothing more.

I've seen it reported that he does have real giraffes but they don't look real.

http://www.celebritynetworth.com/articles/entertainment-articles/insanely-lavish-life-megaupload-founder-kim-dotcom/#!/kim-dotcom-s-giraffes_256/

by william blake on February 13, 2014
william blake

Jeff Thomsons' tin giraffes, Gibbs has them too as well as the living creatures. If  .com had the live animals he would have to open his land to the public the way Gibbs has. 

by James Meager on February 13, 2014
James Meager

@Andrew

Thanks. Two supplementary questions:

(1) If the person eligible for surrender puts no reason to the Minister, must the Minister actively look for any reasons there might be for not surrending? I would think not, or else the "may" use discretion would become a compulsory "must consider using their discretion"?
(2) If the answer to (1) is yes, is this a principle specific to the Extradition Act, or does it apply to all scenarios and legislation under which a Minister may use discretion?

by Andrew Geddis on February 13, 2014
Andrew Geddis

@James,

I'm finding it hard to imagine the situation you are outlining in (1) arising!

But here's what the section says. Subsection (1) states that "If the court issues a warrant for the detention of a person ... the Minister must determine in accordance with this section whether the person is to be surrendered." 

Subsection (3) then says; "The Minister may determine that the person is not to be surrendered if [various circumstances apply]." So, in order to decide "in accordance with the section" whether or not to surrender a person, the Minister must think about whether to say "no" under ss.(3). Which means considering each of the circumstances listed (including the catch-all "any other reason" one in para. (e)), in order to be able to say "yes - I'm still happy that this person ought to go".

Now, how far the Minister has to go into inquiring about the various circumstances in ss.(3) is hard to answer in the abstract. Suffice to say, the Minister must have enough information to actually be able to exercise the discretion - she or he can't defeat the purpose of the subsection by simply refusing to look at whether or not the various circumstances it outlines exist.

As for question (2), if a Minister has been given a statutory discretion, then she or he  always must turn his or her mind to how to exercise it. Parliament is saying "we want you to have a think about what is the best thing to do if these sorts of circumstances exist" ... and the Minister must do what Parliament says.

by stuart munro on February 14, 2014
stuart munro

he has become this folk hero of the left

 

by stuart munro on February 14, 2014
stuart munro

That's not why the Greens are defending him. Banks wanted his money, the Greens want to protect his human rights. Oddly enough Dotcom finds the Greens better company than Banks. A friend in need is a friend indeed. But the Greens are not mercenary - this is the same thing that they did for Zaoui, and for the same reasons.

[strange things happen after italics for some reason]

by James Meager on February 24, 2014
James Meager

@Andrew

Thanks, I'm Lawing a bit better now. I suspect my confusion was due to the struggle between  the use of "may" generally providing choice as to action except in these circumstances.

Law is hard. 

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