Contents

Chapter 13
Managing the overlap with interagency mutual assistance schemes

Relationship with MACMA

13.5As we noted in the Issues Paper, there is a degree of overlap between MACMA and certain interagency schemes.417 While some types of highly intrusive mutual assistance can only be provided through MACMA, some less intrusive types of assistance can be provided either under MACMA, or directly via an interagency scheme. This is expressly acknowledged in some New Zealand statutes. For instance, section 32(2)(f) of the Financial Markets Authority Act 2011 provides that in determining whether to comply with a request by an overseas regulator the Financial Markets Authority (FMA) must take into account whether “it would be more appropriate for the request to be dealt with under” MACMA. The problem is that it is uncertain when it will be appropriate to use MACMA, and when it will be appropriate to use the interagency scheme. As such, we think it is necessary to include guidance in a new statute.
13.6In our consultation on the Issues Paper, the Police suggested that the primary distinction might be that requests for information should be appropriately made via the interagency regime, whereas requests for evidence should be made via the formal mutual assistance statute. The distinction between evidence and information may, in some circumstances, be a useful guide as to whether a request should be made under the Bill rather than under the interagency scheme. However, it does not properly explain when a request must be made under the Bill rather than an alternative scheme. To our mind the better distinction is between coercive (which must be done under the Bill, unless specifically provided for under another enactment),418 and non-coercive measures (which may be done under the interagency scheme or the Bill, depending on which is more appropriate in the circumstances).419 Whether the request can be said to be for information or evidence does not adequately explain that distinction.
13.7Furthermore, while the distinction is employed in some interagency schemes,420 we are not convinced it is workable in this context. Fundamentally, we think it would expect too much of the foreign country. If the foreign country has received the information for investigatory purposes and then wants to use it as evidence, and the foreign country has no requirement that the evidence be in a particular form or obtained via a formal mutual assistance process, it would be unreasonable for New Zealand still to require the country to reapply for the same information to be taken as evidence. This is particularly so in relation to requests from Civil Law jurisdictions where the distinction between information and evidence is not as clear as it is in Common Law jurisdictions.421
13.8Furthermore, it is not a distinction consistent with all interagency schemes. For example, section 31 of the Financial Markets Authority Act 2011 provides the FMA with the power to “obtain information, documents, or evidence that … is likely to assist the FMA in complying” with a request by an overseas regulator,422 and provides that the “FMA may transmit the information, documents, or evidence obtained by it to the overseas regulator”.423 Consequently, it would be difficult to introduce the suggested distinction between information and evidence as a means of providing guidance as to whether an interagency regime or the Bill is the more appropriate avenue.

13.9Instead, we have provided some guidance in clause 10(2) of the draft Bill. There is a presumption that, where applicable, an interagency regime should be preferred in the event of an overlap. However, there are three exceptions where requests for assistance should be made under the Bill rather than the interagency scheme:

(a) the foreign country requires the assistance to be provided with a degree of formality (for example, because the requesting country’s laws of evidence requires information to be provided via formal mutual assistance processes);

(b) the person or agency considers the provision or obtaining of assistance is better dealt with under the Bill; or

(c) the agency needs to use coercive measures to provide the assistance sought (where coercive measures are not provided for in another enactment).424

Recommendation

417Law Commission Extradition and Mutual Assistance in Criminal Matters (NZLC IP37, 2014) [Issues Paper] at [19.18].
418There are a few interagency regimes which allow the New Zealand agencies to use coercive measures to fulfil a request from a corresponding foreign agency, but these powers are specifically provided for in statute. See for example s 51 of the Serious Fraud Office Act 1990.
419A request may be more appropriate under the Bill because of the level of formality required by the requesting country, or because the assistance requested, though non-coercive, is not specifically provided for by the interagency regime. See the discussion below at [13.9].
420For example Commerce Act 1986, s 99J.
421See Shannon Cuthbertson “Mutual Assistance in Criminal Matters: The Challenges of the Common Law Tradition” [2012] JCCL 69 at 74, where the author discusses the “often limited understanding and acceptance by civil code jurisdictions for evidence to be provided in compliance with strict evidentiary requirements”. The author notes (at n 11, citing JF Nijboer “Common Law Tradition in Evidence Scholarship Observed from a Continental Perspective” (1993) 41 Am J Comp L 299 at 314):
In common law systems, the inadmissibility of evidence results in the exclusion of evidence from the trial altogether, and the form and source of the evidence is key. [In Civil Law systems], the question tends to be whether the judicial decision on guilt can be properly founded on the evidence [that is, all the information presented to the court].
422Financial Markets Authority Act 2011, s 31(2) (emphasis added).
423Financial Markets Authority Act 2011, s 31(4) (emphasis added).
424For instance, s 51 of the Serious Fraud Office Act 1990 provides that the Director of the Serious Fraud Office may enter into agreements to supply information to overseas agencies involved in the detection and investigation of cases of fraud, or prosecution of any proceedings that relate to fraud. The Director may exercise the coercive powers available under the Serious Fraud Office Act 1990 to gather information to be provided under such agreements: see A Ltd v Director of the Serious Fraud Office HC Auckland CIV-2005-404-6833, 28 March 2007 at [111]–[119].