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. 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), and non-coercive measures (which may be done under the interagency scheme or the Bill, depending on which is more appropriate in the circumstances). 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, 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.
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, and provides that the “FMA may transmit the information, documents, or evidence obtained by it to the overseas regulator”. 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).
- R32 Guidance should be included in the mutual assistance legislation to assist agencies where there is an overlap between that legislation and other interagency mutual assistance schemes.