Contents

Chapter 13
Managing the overlap with interagency mutual assistance schemes

Oversight of interagency mutual assistance regimes

What agency should fulfil the oversight role?

13.10We noted in the Issues Paper that any presumption in favour of using an interagency scheme instead of the mutual assistance legislation means that the request will not then be subject to the safeguards in MACMA or the new Bill. Nevertheless, the reality is that these agreements do exist and are likely to continue to proliferate. To address this, we proposed that there should be some central body with limited oversight over all interagency schemes.425
13.11We suggested three options as to who should fulfil this function: (1) the Central Authority; (2) the Privacy Commissioner; or (3) a new stand-alone central authority that would oversee all international cooperation in criminal matters.426 Submitters were generally agreed that the Privacy Commissioner’s scope is too narrow to cover and advise on all the safeguards we would expect to be considered for inclusion in an interagency regime.427 Equally, as noted in Chapter 2, we do not think a stand-alone central authority is warranted at this stage, particularly given the limited role we envisage for this oversight role. We think the Central Authority is the most appropriate option.

The nature of the oversightTop

13.12We think that the oversight should focus on the establishment or renegotiation of interagency schemes (front-end oversight). Clause 11 of the new Bill therefore provides that the Central Authority would be responsible for publishing and maintaining a set of guidelines to which agencies must have regard when negotiating interagency agreements. Agencies would be required to strive to ensure that the requirements in the guidelines are reflected in any arrangement, to the extent practicable. The Central Authority would also have a role in providing advice to agencies in relation to the guidelines. This front-end oversight will help to ensure that new or renegotiated regimes contain appropriate safeguards and are consistent with other regimes.

13.13The Office of the Privacy Commissioner suggested that ongoing monitoring of the operation of interagency regimes would also be appropriate. This post-hoc oversight might, for instance:

(a) assess request handling, and the provision of assistance and information to foreign agencies;

(b) require verification of compliance with the legislative safeguards by the New Zealand agency; and

(c) assess compliance by foreign agencies with their obligations under the particular scheme.428

13.14While we considered such monitoring, we are not sure that such an expansive role is possible. Given the number of interagency schemes already in operation and the information sharing undertaken under those regimes, alongside the inevitable continued proliferation of such arrangements, we think such post-hoc oversight would be too onerous a task for the Central Authority. This is particularly so given it is an extension of the Central Authority’s current mutual assistance role under MACMA into the regulatory mutual assistance sphere.

13.15Post agreement monitoring would also risk imposing similarly burdensome obligations on agencies. This was the view of the Commerce Commission which, while agreeing with the proposal for an oversight body in principle, was concerned that reporting requirements would be too onerous.

13.16Finally, any kind of post hoc monitoring may also be difficult in practice where an agency has requirements that preclude it from reporting such information. For instance, Inland Revenue noted that the section 81 restrictions in the Tax Administration Act 1994 would probably constrain what it could report.429

Safeguards to be included in the guidelines

13.17We envisage the Central Authority’s guidelines would promote inclusion of the following safeguards in interagency regimes:

(a) Purpose – the purpose of the interagency regime should be made clear, and the type and quantity of information to be shared should be no more than is necessary to facilitate this purpose.

(b) Legality under domestic law – a New Zealand agency should not, under the arrangement, be required to carry out measures at variance with, or supply information not obtainable, under New Zealand’s law or the agency’s own administrative practices.430 This would include a protection against providing legally privileged materials.
(c) Protection of the information – the New Zealand agency should have the ability to impose conditions on how the overseas agency may use, and ensure the security of, the information.431

(d) Privacy protections – the public interest (for example, in the maintenance of law) in facilitating information sharing under the agreement should be required to be likely to outweigh the privacy risks of doing so. Furthermore, in conjunction with the requirement relating to “protection of the information” above, the arrangement should contain adequate safeguards to protect New Zealanders’ privacy. It may be desirable to direct that the agency should consult the Privacy Commissioner in this regard.

(e) Double jeopardy – the agency should be able to refuse to assist with a request under an interagency regime where a criminal proceeding has already been initiated in New Zealand, based on the same facts and against the same person.432

(f) Dual criminality – the agency should have scope to refuse a request if it relates to the investigation of, or proceedings against, a person for conduct that, if it had occurred in New Zealand, would not be subject to investigation or proceedings under New Zealand law.

(g) Public interest or essential national interest – there should be the ability to refuse to provide information based on public interest or essential national interest.433

(h) Payment of costs – the regime should include arrangements providing for the payment of costs incurred by an agency in fulfilling a request.

(i) A ground for refusal in the new Mutual Assistance Bill, not otherwise covered in the guidelines, would be likely to apply – although it is unlikely that grounds relating to the death penalty or torture, for instance, are likely to be engaged in arrangements that relate predominantly to assistance in regulatory matters. In those circumstances where a ground for refusal in the new Mutual Assistance Act is likely to arise, the agency should be able to refuse to assist.434

Informing agencies

13.18Given it details the Central Authority’s role generally,435 the new Bill is the most appropriate statutory instrument in which to include the Central Authority’s obligations to publish guidelines and provide advice. It is, however, an extension into the regulatory sphere as compared with MACMA and the Bill’s focus on criminal matters. As such, there is a risk agencies will not have in mind the Central Authority’s guidelines, and its role in advising on those guidelines, when negotiating an interagency arrangement.
13.19Therefore, we think the Treaty Officer at the Ministry of Foreign Affairs and Trade should provide agencies with the Central Authority guidelines when agencies are negotiating an interagency arrangement, directing an agency to the Central Authority if it seeks advice relating to the guidelines. This is practical, as any agency contemplating entering into an international arrangement is already required to consult with the Treaty Officer.436 We understand, however, that many agencies do not currently comply with this obligation. Therefore, it would be useful for a Cabinet circular to be published reminding agencies of this obligation, as well as providing information about the Central Authority’s guidelines under the new Mutual Assistance Act.

Recommendation


425Issues Paper, above n 417, at [19.29].
426At [19.31]–[19.33].
427See for example Office of the Privacy Commissioner submission at 15–16. There may, however, be space for a subsidiary role for the Privacy Commissioner. See the discussion at [13.17] of this Report.
428Office of the Privacy Commissioner submission at 15.
429Inland Revenue submission.
430See, in relation to Inland Revenue, art 21 of the Convention on Mutual Administrative Assistance in Tax Matters ETS 127 (opened for signature 25 January 1988), as amended by the 2010 Protocol (opened for signature 27 May 2010, entered into force 1 June 2011), given effect in New Zealand through the Double Tax Agreements (Mutual Administrative Assistance) Order 2013.
431As in, for example, Commerce Act 1986, s 99J.
432As provided for in, for example, International Organizations of Securities Commission Multilateral Memorandum of Understanding Concerning Consultation and Cooperation and the Exchange of Information (May 2012) at [6(e)(ii)].
433A ground for refusal along these lines is provided for in both the Mutual Assistance in Criminal Matters Act 1992, s 27(1)(f) and the Mutual Assistance Bill, cl 23(2)(k).
434See the grounds for refusal in Mutual Assistance Bill, cls 22–23.
435Mutual Assistance Bill, cl 8.
436Cabinet Office Cabinet Manual 2008 at [7.115].