Chapter 12
The Structure of the new Bill

A principles-based statute

12.2As outlined in the Issues Paper, the purpose of the Law Commission’s review of both the Mutual Assistance in Criminal Matters Act 1992 (MACMA) and the Extradition Act 1999 has been to ensure that the Acts contain processes that are efficient, effective and not overly complex or unnecessarily expensive.395

12.3We have sought to reflect the following principles in the context of mutual assistance:

(a) Powers and investigative techniques that are available to domestic authorities should also be available for use in response to requests for assistance in foreign investigations and prosecutions.

(b) New Zealand must keep pace with international developments on mutual assistance and ensure its legislative regime gives effect to its international obligations in this area.

(c) New Zealand must ensure that it has sufficient oversight and control of any mutual assistance it provides and that it balances law enforcement needs and human rights values.396
12.4In the Issues Paper, we proposed that MACMA should be replaced or substantially redrafted.397 In order to achieve the purpose and reflect the principles stated above, we have decided that a new Act is warranted. In the Mutual Assistance Bill included in this Report, we have aimed for a future-proofed, principles-based statute with a focus on the Central Authority and its role as the gateway and gatekeeper.

The Central Authority’s role as the gateway and gatekeeper

12.5It is appropriate to focus on the role of the Central Authority because requests for assistance, both through MACMA and our Bill, must all be processed by the Central Authority.398 Further, and more importantly, it is the Central Authority that is the key to ensuring that assistance is granted only in accordance with New Zealand values.
12.6Fundamentally, for incoming requests,399 the mutual assistance legislation regulates access to the investigatory and prosecutorial powers of New Zealand authorities. The Central Authority’s role in this regard is one of both “gateway” to and “gatekeeper” of those New Zealand powers in relation to requests from foreign countries.

12.7In its role as a gateway, the Central Authority authorises appropriate requests from foreign countries that seek to use New Zealand’s domestic powers and techniques to investigate and prosecute crime, and to restrain and seek forfeiture of property derived from crime. It also facilitates the fulfilment of the request and transfer of any information or evidence.

12.8In its role as gatekeeper, the Central Authority ensures that access to New Zealand tools is provided only in appropriate circumstances, and that the rights of individuals affected by those requests are sufficiently protected. In our Bill, three primary criteria must be met in any case for the Central Authority to be satisfied that authorisation of the assistance requested is justified.

12.9First, the request is valid under the Mutual Assistance Bill – that is:

(a) it is a request made by a foreign central authority to the New Zealand Central Authority for assistance;

(b) that can be provided lawfully in New Zealand;

(c) in relation to a criminal matter or the recovery of criminal proceeds; and

(d) is the least intrusive means available in New Zealand of fulfilling the request.

Second, the request does not fall within any of the grounds for refusal upon which the request must be refused.400 Third, the request does not fall within any of the grounds for refusal upon which the request may be refused, where it would not otherwise be in the interests of justice and in line with New Zealand’s international obligations to provide the assistance.401
12.10Additionally, where the Bill deals with any particular type of assistance, the request must meet any requirements unique to that specific type of assistance.402 For instance, New Zealand must reach agreement with the foreign country on a number of matters specified in clause 35(1)(b) before it may authorise providing assistance in relation to requests for warrants or orders under the Search and Surveillance Act 2012.

12.11Once these criteria have been satisfied, the Central Authority may authorise that the assistance be provided, at which point, for the most part, domestic procedures will be engaged.

12.12We think this provides a relatively simple and efficient method for assessing whether any request should be authorised, without being overly prescriptive as to the type of assistance that may be requested, and without creating special rules applicable to requests from particular countries.

Giving effect to international commitments403Top

12.13While MACMA recognised international obligations through a categorisation of countries,404 as noted above we have started with the presumption that New Zealand will give the same level of assistance to all countries. That is, a request from any country that crosses the hurdles above will be authorised by the Central Authority.
12.14This leaves the question as to how New Zealand fulfils its international obligations with certain countries. The Bill creates a baseline of obligations. Provided the baseline requirements are met, international mutual assistance treaties may then supplement the Bill in particular ways.405

Criminal matters and proceeds mattersTop

12.15Another major change to the structure of MACMA is the way in which the draft Bill deals with requests relating to the recovery of criminal proceeds. The approach in MACMA was to deem proceeds matters to be criminal matters for the purposes of the Act.406 We have taken a different approach, devoting a subpart of the draft Bill to assistance in the recovery of criminal proceeds.407 Any request for criminal proceeds must still satisfy the criteria outlined above,408 but the specific matters relevant to the assessment of requests in relation to criminal proceeds are set out in a separate subpart. We think this removes an unnecessary element of complexity from the current Act.

12.16For the same reason, we have included a reference to criminal proceeds in the title of the Bill. This makes it more obvious what the Bill actually deals with. We acknowledge that this reference makes the Bill’s title somewhat lengthy. We imagine, however, that in practice it would simply be referred to as the Mutual Assistance Act.

395Law Commission Extradition and Mutual Assistance in Criminal Matters (NZLC IP37, 2014) [Issues Paper] at [1.2] and [12.1].
396At [12.32].
397At 5 (key proposals).
398See Mutual Assistance in Criminal Matters Act 1992, s 25; and Mutual Assistance in Criminal Matters and for Recovery of Criminal Proceeds Bill [Mutual Assistance Bill], cls 8 (Central Authority) and 20 (Making a request).
399Dealt with in Mutual Assistance Bill, pt 2; and Mutual Assistance in Criminal Matters Act 1992, pt 3. To reflect the practical importance of the provisions relating to incoming requests as compared with outgoing requests, we have opted to deal with incoming requests before outgoing requests in the Bill. This is the opposite of the approach contained in the 1992 Act.
400Mutual Assistance Bill, cl 22 (Grounds on which assistance must be refused).
401Mutual Assistance Bill, cl 23 (Grounds on which assistance may be refused).
402These are: requirements relating to the obtaining of evidence, information, documents, articles or things, including under the Search and Surveillance Act 2012 (cls 30–34); requests for search warrants or production and examination orders under the Search and Surveillance Act 2012 (cls 35–40); requests for the service of summons (cl 45); applications for interim foreign restraining orders (cl 47); registration of foreign restraining and forfeiture orders (cl 48); and requests for search warrants or production and examination orders under the Criminal Proceeds (Recovery) Act 2009 (cls 50).
403For further discussion, see ch 3 of this Report.
404Described in the Issues Paper, above n 395, at [13.32]–[13.48].
405There are three minor exceptions where a requirement in the Bill may be varied by a treaty. See cls 26, 46 (definition of “foreign restraining order”), and 43(d)(iii), and associated commentary. See also the discussion of mutual assistance treaties in ch 3.
406Mutual Assistance in Criminal Matters Act 1992, ss 2A–2B.
407See Mutual Assistance Bill, pt 2, sub-pt 3.
408Discussed above at [12.8].