Chapter 13
Managing the overlap with interagency mutual assistance schemes


13.1The Mutual Assistance in Criminal Matters Act 1992 (MACMA) does not establish an exclusive code for assisting foreign countries in relation to criminal matters. As provided in section 5, nothing in the Act “derogates from existing forms of co-operation (whether formal or informal) in respect of criminal matters between New Zealand and any other country”, nor does it prevent “the development of other forms of such co-operation”.414 As other forms of cooperation have proliferated, some overlap with MACMA has arisen.

13.2This chapter addresses that overlap between assistance to be provided under the new Mutual Assistance in Criminal Matters and for Recovery of Criminal Proceeds Bill (Mutual Assistance Bill), and interagency mutual assistance schemes (interagency schemes) – those various cooperation arrangements between New Zealand regulatory and law enforcement agencies, and their foreign counterparts.

13.3A large number of such arrangements are already in force, and the parameters and terms of each differ significantly. They do not appear to be causing any significant problems in practice. In light of that, we do not propose fundamentally to alter this form of providing assistance. Rather, our concerns are twofold. First, to the extent that there is overlap between MACMA and particular interagency regimes, there is no clear rule directing which should apply. Secondly, there is a lack of common safeguards across all interagency regimes, which risks becoming even more pronounced as these arrangements proliferate.

13.4To address these concerns, we make two recommendations in this chapter:

(a) Where there is overlap, a provision should be included providing guidance as to whether it is more appropriate for the assistance to be provided under the new Mutual Assistance Act, or under the particular interagency schemes.415
(b) The Central Authority should publish and maintain guidelines for safeguards that must be considered for inclusion in any new or renegotiated interagency schemes. The Central Authority would also provide advice to agencies negotiating these arrangements on how best to comply with the guidelines.416
414The effect of which is retained in Mutual Assistance in Criminal Matters and for Recovery of Criminal Proceeds Bill [Mutual Assistance Bill], cl 10.
415This guidance is in cl 10(2) of the Mutual Assistance Bill. The subclause does not specifically mention interagency schemes. Instead it refers to a non-Mutual Assistance Act statutory power to provide assistance. This power may, in practice, be exercised by providing assistance under an interagency scheme. On the other hand, the power may be exercised directly. For instance, the Policing Act 1998 has recently been amended to allow the Police to share personal information internationally without necessarily having an interagency scheme. Clause 10(1)–(2) makes it plain that this type of assistance may be provided without recourse to the Mutual Assistance Bill. An interagency scheme is not the only alternative.
416Provided for in cl 11 of the Mutual Assistance Bill.