Will no one rid me of this turbulent German?

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.