Clause 6 Interpretation
criminal matter —
(a) means an investigation or a proceeding—
(i) certified by a foreign Central Authority to have commenced or been instituted in a foreign country in respect of an offence against the law of that country:
(ii) certified by the Central Authority to have commenced or been instituted in New Zealand in respect of an offence against the law of New Zealand:
(iii) including a trial for the particular offence and any related proceedings:
(b) includes an investigation or a proceeding relating to—
(i) revenue (including taxation and customs and excise duties):
(ii) foreign exchange control; but
(c) does not include an investigation or a proceeding concerning an act or omission that, if it had occurred in New Zealand, would have constituted an offence under the military law of New Zealand but not also under the ordinary criminal law of New Zealand
Clause 8 Central Authority
(1) The Central Authority is the Attorney-General.
(2) The Central Authority—
(a) makes and receives requests for assistance in criminal matters and assistance to recover criminal proceeds to and from foreign countries under this Act; and
(b) decides whether New Zealand will assist a foreign country; and
(c) authorises and enables the providing of assistance to a foreign country by taking any steps required or allowed by this Act.
(3) For the purpose of performing any function or exercising any power under this Act, the Central Authority may take any action that the Central Authority considers desirable to the extent that the action is otherwise permitted by law.
(4) The Central Authority must not request or obtain, or agree to provide or provide, assistance from or to a foreign country if it involves any action that is unlawful in the foreign country or would be unlawful if done in New Zealand.
We do not intend subclause (4) to require the New Zealand Central Authority to make proactive inquiries into the lawfulness of actions in the foreign country in relation to outgoing requests. Rather, we expect that if the Central Authority is alerted to some issue with how the foreign country may obtain the requested material, the Central Authority will not make the request.
Clause 10 Act not to limit other providing of assistance
(1) Nothing in this Act affects any other enactment that requires or allows assistance to be provided or obtained in criminal matters or to recover criminal proceeds, by New Zealand, to or from a foreign country.
(2) If a person or agency in New Zealand may provide or obtain a type of assistance under both this Act and another enactment, that person or agency may use this Act to provide or obtain the assistance if—
(a) a foreign country wishes the assistance to be provided under this Act because of the formality of process provided by the Act:
(b) the assistance or part of it involves the use of coercive measures:
(c) the person or agency considers the provision or obtaining of assistance is better dealt with under this Act.
(3) Nothing in this Act—
(a) affects existing forms of co-operation between New Zealand and foreign countries, whether formal or informal; or
(b) prevents the development of other forms of co-operation between New Zealand and foreign countries, whether formal or informal.
This is one of the key provisions in the Bill. It explains the relationship between the Bill and other tools for providing assistance, such as interagency mutual assistance schemes. The provision and its significance are discussed in Chapter 13.
Clause 11 Monitoring of interagency mutual assistance schemes
(1) The Central Authority is responsible for monitoring interagency mutual assistance schemes specifically by—
(a) maintaining guidelines for developing or varying interagency mutual assistance schemes; and
(b) providing advice on the use of the guidelines.
(2) Nothing in this section requires the Central Authority to supervise or monitor any particular interagency mutual assistance scheme.
(3) For the purposes of this section, interagency mutual assistance scheme means any arrangement or agreement between a New Zealand agency and an agency or agencies in a foreign country or countries that has the purpose of providing assistance for regulatory matters, criminal matters, or the recovery of criminal proceeds.
There is no equivalent to this provision in MACMA. We have included it in the Bill to ensure that there is some consistency and oversight in respect of the increasing number of interagency mutual assistance schemes that are being entered into by the New Zealand Government. See Chapter 13 for a more detailed discussion of this issue.
Clause 20 Making request
(1) A request may only be made by a foreign Central Authority to the Central Authority.
(2) A request must include any information required by this Part or any regulations made under section 67, and in the case of a request relating to a criminal matter it must be accompanied by the certificate referred to in paragraph (a)(i) of the definition of criminal matter in section 6.
MACMA includes substantial form requirements in section 26. In our effort to create a more principles-based statute, we decided that, unless specific information is integral to the assessment of a request under our proposals, the Central Authority can decide the appropriate form requirements and these should be contained in regulations. The benefit of this approach is that it will allow form requirements to be amended with much greater ease.
Clause 22 Grounds on which assistance must be refused
A request for assistance under this Part must be refused if, in the opinion of the Central Authority,—
(a) there are substantial grounds for believing that the request was made for the purpose of investigating or prosecuting or taking proceedings of any kind against a person, or otherwise causing prejudice to a person, by reason of any of the grounds of discrimination in section 21 of the Human Rights Act 1993; or
(b) any person will be subjected to torture, or inhumane or degrading treatment, if the assistance is provided.
Whether or not to refuse a request is ordinarily a matter for the judgement of the Central Authority in each particular case. Clause 22 provides two exceptions, under which the Central Authority must refuse the request: (1) if there is a discriminatory purpose underlying the request; or (2) a person will be subjected to torture, or inhumane or degrading treatment, if the assistance is provided.
Clause 23 Grounds on which assistance may be refused
(1) A request for assistance under this Part may be refused if, in the opinion of the Central Authority, any of the grounds in subsection (2) apply after taking into account the matters in subsection (3).
(2) The grounds on which assistance may be refused are:
(a) the request relates to the investigation or prosecution of a person for an offence for which the person may be or has been sentenced to death and the requesting country is unable to adequately assure the Central Authority that—
(i) the person will not be sentenced to death; or
(ii) if that sentence is or has been imposed, it will not be carried out; or
(b) providing the assistance would prejudice, or would be likely to prejudice, the safety of any person (whether that person is in New Zealand or not); or
(c) the request relates to an investigation, a prosecution, or proceedings of any kind of a political character; or
(d) the request relates to the investigation or prosecution of a person for conduct that, if it had occurred in New Zealand, would not have constituted an offence against New Zealand law; or
(e) the request relates to the investigation or prosecution of a person for an offence and the person has previously been acquitted of, convicted of, or pardoned for that offence, or has undergone punishment in relation to that offence or another offence constituted by the same act or omission as that offence; or
(f) the request relates to the investigation or prosecution of a person, or proceedings of any kind against a person, for conduct for which, if it had occurred in New Zealand at the same time, the person could no longer be prosecuted or be the subject of proceedings by reason of lapse of time; or
(g) providing the assistance requested could prejudice—
(i) a criminal investigation or criminal proceeding in New Zealand; or
(ii) a proceeding of any kind under the Criminal Proceeds (Recovery) Act 2009 or sections 142A to 142Q of the Sentencing Act 2002; or
(h) providing the assistance would unreasonably interfere with the privacy of an individual; or
(i) the request relates to a matter that is trivial in nature; or
(j) granting the request would prejudice the national interests of New Zealand; or
(k) it is appropriate in all the circumstances of the particular case that the request should not be agreed to.
(3) If any of the grounds in subsection (2) appear to apply in any case, before deciding whether there is a ground or grounds on which the request may be refused, the Central Authority must consider whether providing the assistance sought would—
(a) be otherwise in the interests of justice; and
(b) comply with New Zealand’s international obligations.
(4) For the purposes of this section, trivial in nature means that, by reason of the trivial nature of the criminal matter or the low value of the likely penalty of any property likely to be forfeited or restrained, New Zealand would not have made a similar request for assistance.
As discussed in Chapter 5, subclause (3) is particularly important for guiding the Central Authority as to whether the general ground for refusal in paragraph (j) should be exercised.
Another key change we have made relates to the wording of the “political offence” ground. Sections 27(1)(a) and (b) of MACMA provide that assistance must be refused if, in the opinion of the Attorney-General: “the request relates to the prosecution or punishment of a person for an offence that is, or is by reason of the circumstances in which it alleged to have been committed or was committed, an offence of a political character; or…there are substantial grounds for believing that the request has been made with a view to prosecuting or punishing a person for an offence of a political character.”
We have chosen the wording in paragraph (c) to allow the Central Authority appropriate leeway in determining whether or not the investigation or proceedings are inherently of a political nature. Its application is, of course, subject to subclause (3). This is slightly different to a request being made for a political purpose, which would be covered under the discriminatory purpose ground in clause 18(a), although there will inevitably be overlap.
The ground for refusal in paragraph (h) is new, requiring that the Central Authority must consider the impact providing the assistance would have on the privacy of any individual. In determining whether the ground for refusal applies, the Central Authority will take into account the guidelines it is required to develop in consultation with the Privacy Commissioner under clause 16 of the Bill.
Clause 24 Criminal investigations
If a request for assistance relates to a criminal investigation, for the purpose of deciding whether to provide the assistance, including whether a ground for refusal listed in sections 22 and 23 applies, the Central Authority may, but is not required to, identify a particular offence that may arise from the investigation or a particular penalty that may be imposed as a result of the investigation.
Clause 26 Assistance may be provided subject to conditions or provided in part or postponed
(1) Assistance may be provided to a requesting country subject to any conditions that the Central Authority considers appropriate for any particular case or class of cases.
(2) If providing assistance would impose an excessive burden on New Zealand’s resources, the Central Authority may require as a condition of providing assistance, —
(a) the foreign country to pay the reasonable costs of doing so (unless a treaty specifically requires assistance to be provided without costs being payable); and
(b) if a treaty to which New Zealand and the foreign country are both parties provides for payment of all or some costs by the foreign country, payment of costs in accordance with the treaty.
(3) The Central Authority may agree—
(a) to provide only part of any assistance that is requested; or
(b) to postpone the providing of assistance to an appropriate date at the sole discretion of the Central Authority.
(2)The Requested Party shall assume all ordinary expenses of executing a request within its jurisdiction, except:
(a) fees of counsel retained at the request of the Requesting Party;
(b) fees of experts;
(c) expenses of translation; and
(d) travel and accommodation expenses and allowances of persons.
(3) If during the execution of the request it becomes apparent that expenses of an extraordinary nature are required to fulfil the request, the Parties shall consult to determine the terms and conditions under which the execution of the request may continue.
Clause 29 Information lawfully obtained for earlier request may be provided for later request
(1) This section applies to requests for assistance in relation to both criminal matters and the recovery of criminal proceeds.
(2) If the Central Authority has authorised the obtaining of information in order to provide assistance to a foreign country under this Act (the first request) and the information is relevant to a subsequent request for assistance, the information may be provided to the foreign country making the subsequent request if—
(a) the information was lawfully obtained and is lawfully in the possession of a person or an agency in New Zealand; and
(b) the Central Authority has authorised the provision of the information in relation to the subsequent request; and
(c) the criminal matters or criminal proceeds matters that are the subject of the first request and the subsequent request are substantially similar.
As we noted in the Issues Paper, MACMA currently involves a double gate-keeping function in relation to access to coercive powers in so far as it requires both agreement by the Central Authority and successful application to the court. This is important, but practically it should be unnecessary to reapply to the court for information already lawfully obtained. The wording of clause 29 is intended to tightly circumscribe the application of this provision. The provision only applies to information sought by two or more different countries that is, in substance, the same information. Take, for instance, a drug smuggling operation between the United Kingdom and the Netherlands where there is information relevant to that operation in New Zealand. The provision would apply if the United Kingdom made a successful request for a search warrant to be executed to obtain information about alleged drug offending, and then later, the Netherlands makes a request for the exact same information. If, however, the Netherlands was to make a request for that information, but in relation to alleged arms offending, it would not be appropriate to use the provision.
Clause 30 Obtaining evidence
(1) The Central Authority may, under section 27, authorise the provision of assistance to obtain evidence or produce documents, articles, or things if the Central Authority has received an adequate undertaking from the requesting country that any evidence, document, article, or other thing provided to it will be used solely for the purpose for which it was requested.
(2) An authorisation is sufficient authority for a Judge to—
(a) take evidence on oath of a specified person; and
(b) require the production of any specified document, article, or thing.
(3) Any action taken under subsection (2) must, subject to this Act, be done in accordance with usual court rules and procedure, with any necessary modifications.
(4) The Judge must certify any evidence taken under this section as having been taken by him or her, and must certify or otherwise mark any documents, articles, or things produced as having been produced by the witness, and the evidence and any exhibits must be sent to the Central Authority.
(5) Documents that are judicial records or official records and that are not publicly available may be produced or examined only to the extent that they could be produced or examined in criminal proceedings in a New Zealand court.
Clause 34 Obtaining information
The Central Authority may, under section 27, authorise the provision of assistance to obtain information of any kind (including arranging for a person to assist with an investigation) if the Central Authority has received an adequate undertaking from the requesting country that any information provided to it will be used solely for the purpose for which it was requested.
We note that, on occasion, after the Central Authority has provided assistance, a requesting country may ask for permission to use the evidence or information for a different purpose. The Central Authority will need to make a decision on this, based on the principles in the Bill and on any applicable international obligations. For the latter, it is worth noting that some of New Zealand’s mutual assistance treaties state that material provided in response to a mutual assistance request may be used for an exculpatory purpose if prior notification is given.
Clause 36 Limit on use of Search and Surveillance Act 2012
The Central Authority or any New Zealand agency or authority must not authorise assistance in the form of, or use the powers for, warrantless searches under the Search and Surveillance Act 2012 for the purpose of assisting a foreign country in any criminal matter.
Clause 37 Agreements between New Zealand and foreign countries relating to warrants and orders under Search and Surveillance Act 2012
(1) When deciding the terms of an agreement with a foreign country under section 35(1)(b), the Central Authority must consider any relevant requirements and limits contained in subpart 6 of Part 4 of the Search and Surveillance Act 2012.
(2) A treaty to which New Zealand and a foreign country are parties, or an agreement between the Central Authority and a foreign Central Authority, may provide for any of the matters listed in section 35(1)(b)(ii) to (vi) to apply generally to all requests made by a foreign country.
Subpart 6 of Part 4 of the Search and Surveillance Act 2012 outlines the procedures to apply to seized or produced materials in the domestic context. These provisions are not applicable because in order to respond to a mutual assistance request at least some of the seized or produced material will need to leave New Zealand’s jurisdiction and the provisions in the Act have a purely domestic focus. However, it is important that the Central Authority still take into account the principles underlying the provisions of subpart 6 of Part 4 in determining how seized and produced materials are ordinarily to be dealt with in New Zealand, when negotiating its agreement with the requesting country. That is the action required by subsection (1).
The Central Authority may choose to create ongoing arrangements with foreign countries to cover the matters to be agreed upon in clause 35(1)(b)(ii)–(vi). This may be in the form of a formal treaty, or may simply be a memorandum of understanding between the New Zealand Central Authority and a foreign central authority, governing all requests for search and surveillance assistance from that particular country. Clause 37(2) allows for this. If there is no ongoing agreement, however, the central authorities must agree on those matters in relation to every request. In respect of the relationships with other countries, we envisage the Central Authority will develop a standard form agreement of the best practice, which will assist the central authorities to agree quickly on those matters. Finally, clause 35(1)(b)(i) – concerning the number, identity and role of any foreign enforcement officers who will assist – will need to be agreed upon in every case (as applicable), regardless of whether there is an ongoing agreement in force, as this will necessarily be case-specific.
Clause 43 Undertakings by foreign country requesting attendance of person
(1) For the purpose of section 41(2), a requesting country must give adequate undertakings—
(a) that, if a person refuses or fails to provide the assistance that is requested, he or she will not be subject to any penalty or liability or other disadvantage for the reason only that the person refused or failed to do so; and
(b) that, while in the foreign country providing assistance, the person will not be detained (subject to paragraph (f)), prosecuted, punished, or subjected to any proceedings for any offence, act, or omission alleged to have been committed or to have occurred before the person departed from New Zealand to travel to the foreign country; and
(c) that, while in the foreign country providing assistance, the person will not be required to give evidence or provide assistance, other than as specified in the request; and
(d) that any evidence given by the person will be inadmissible and otherwise disqualified from use except in relation to—
(i) proceedings to which the request relates; or
(ii) proceedings against the person for perjury; or
(iii) proceedings that are similar to proceedings for perjury and that have been agreed as an exception in a treaty to which both New Zealand and the foreign country are parties; and
(e) that the person will be allowed to return to New Zealand as soon as practicable after giving the evidence or providing the assistance (unless the person chooses of his or her own volition to remain in the foreign country); and
(f) if the person is a prisoner, that—
(i) he or she will be kept in safe custody while he or she is in the foreign country and not released without the prior approval of the Central Authority; and
(ii) if the person is released at the request of the Central Authority, the person’s accommodation and other costs will be met by the foreign country; and
(iii) he or she will be returned to New Zealand by way of travel arrangements agreed to by the Central Authority; and
(g) on any other matters that the Central Authority thinks are appropriate.
Clause 43(1)(d)(iii) is a speciality provision. It ensures that the evidence given by a person in a foreign country, as a result of a mutual assistance request, will only be used for the purpose outlined in the request. There are two exceptions. First, the evidence may be used against the person if they are later charged with perjury in relation to giving the evidence. Secondly, a treaty may specify that the evidence may be used in relation to a charge that is similar to perjury.
Part 2, subpart 3 – Requirements and procedures for providing assistance to recover criminal proceeds
This means, once the assistance has been authorised by the Central Authority, almost everything is dealt with under CPRA, rather than the mutual assistance legislation. This is consistent with the Central Authority’s core “gateway/gatekeeper” function in our Bill.
Clause 46 Interpretation
foreign restraining order means an order made under the law of a foreign country by any court or judicial authority or, if a mutual assistance treaty specifically permits, any other body authorised in that country to make a restraining order that—
(a) restrains a particular person, or all persons, from dealing with the property specified in the order; and
(b) relates to criminal proceeds
Clause 47 Interim foreign restraining orders
(1) The Central Authority may, under section 27, authorise the provision of assistance to apply for an interim foreign restraining order if the Central Authority—
(a) has received adequate assurances from the foreign Central Authority that—
(i) a request under this Act for a foreign restraining order relating to the same property will be made within 28 days from the date the interim order is made; and
(ii) the foreign country will reimburse any costs or damages ordered by a court in relation to the making, operation, or extension of the interim order; and
(b) is satisfied that—
(i) the foreign Central Authority understands the requirements for registration of a foreign restraining order in New Zealand; and
(ii) the later request for a foreign restraining order is likely to be agreed to.
(2) The authorisation must certify that the Central Authority has received the assurances required by subsection (1)(a) and is satisfied of the matters in subsection (1)(b).
(3) An application made under section 128 of the Criminal Proceeds (Recovery) Act 2009, and the application must be made and dealt with, and any order made must be enforced, under that Act.
Under section 29 of CPRA, the Commissioner of Police may be required to give the High Court an undertaking as to costs upon filing an application for an interim foreign restraining order. Clause 47(1)(b)(ii) is intended to require the foreign country to underwrite that undertaking, thereby substantially decreasing the financial risk to the New Zealand Government.
Clause 50 Search warrants, production orders, and examination order
(1) The Central Authority may, under section 27, authorise the provision of assistance to apply for a search warrant, a production order, or an examination order under the Criminal Proceeds (Recovery) Act 2009 if—
(a) satisfied that there are reasonable grounds to believe that some or all of the property that is the subject of the application, or information about that property, is in New Zealand; and
(b) satisfied that the request relates to criminal proceeds (as defined in section 46); and
(c) agreement has been reached with the requesting country on the matters listed in section 35(1)(b).
(2) An agreement under subsection (1)(c) must be in writing and must take account of the matters in sections 103, 105(5), 107(4), 111, 112, and 113 of the Criminal Proceeds (Recovery) Act 2009.
(3) The authorisation must—
(a) certify that the Central Authority is satisfied of the matters in subsection (1)(a) and (b); and
(b) include a copy of the agreement made under subsection (1)(c); and
(c) specify which of sections 101,102, 104, 106, and 110 of the Criminal Proceeds (Recovery) Act 2009 may be used by the person authorised to provide the assistance.
(4) An application must be made under section 124, 125, or 125A to 125C of the Criminal Proceeds (Recovery) Act 2009, and the application must be made and dealt with, and any warrant or order made must (except as provided by this Act) be executed, under that Act.
(5) The New Zealand Police may be assisted by a foreign enforcement officer if the requirements in section 38 are not met.
(6) Anything seized or produced must be dealt with in accordance with sections 39 and 40.
As noted in the commentary to subpart 3, above, further consequential amendments to CPRA will be necessary to complete the scheme. Sections 125A–125C, referred to in subclause (4) of clause 50 fall into this category.
New section 125C should provide the Commissioner of Police with the power to apply for an examination order under section 106 of CPRA, if authorised under clause 50 of the Mutual Assistance Bill. It should specify that sections 106 and 107(1), (2) and (3) of CPRA apply with any necessary modifications to an application and determination of an application, and that the order must be executed in accordance with section 107(4)–(7) of CPRA and the agreement referred to in clause 50(1)(c) of the Mutual Assistance Bill.
Clause 55 Admissibility of evidence
(1) Any statement of evidence (by whatever name called) received from a foreign country, and any documents referred to in the statement that have been authenticated under section 66, may be admitted in evidence at the hearing of criminal proceedings to which the request relates, unless excluded under the law of evidence.
(2) Any statement of evidence or document to which this section applies must not be excluded for the reason only that a requirement as to form is not met.
Schedule—Amendments to Criminal Proceeds (Recovery) Act 2009
Replace section 128 with:
Clause 128 Application for foreign restraining order
(1) The Commissioner may apply to the High Court for an interim foreign restraining order if authorised by the Central Authority under section 47 of the Mutual Assistance in Criminal Matters and for Recovery of Criminal Proceeds Act 2015.
(2) An application under subsection (1) is made without notice.
(3) Sections 19 and 22(2) and (3) apply to an application made under this section, with any necessary modifications.
Clause 128A Order by court
(1) The court must make an interim foreign restraining order—
(a) if satisfied that the Central Authority has authorised the making of the application under section 47 of the Mutual Assistance in Criminal Matters and for Recovery of Criminal Proceeds Act 2015; and
(b) if the authorisation complies with the certification requirements of section 47(2) of that Act.
(2) The order must—
(a) identify the property in respect of which the authorisation has been given; and
(b) state that, for the duration of the order, the property—
(i) is not to be disposed of, or dealt with, other than as provided in the order:
(ii) is to be held by the Official Assignee.
(3) Subject to subsection (4), sections 27 to 29 apply to an order made under this section, with any necessary modifications.
(4) The reference in section 28(2) to legal expenses must be read as a reference to any legal expenses incurred by the defendant, including in defending allegations of criminal activity in the foreign country seeking the order.
After section 134, insert:
Clause 134A Registration of foreign restraining order
(1) A foreign restraining order does not have effect and cannot be enforced in New Zealand unless it is registered.
(2) The court may register a foreign restraining order if satisfied that—
(a) the Central Authority has authorised the making of an application to register the order under section 48 of the Mutual Assistance in Criminal Matters and for Recovery of Criminal Proceeds Act 2015; and
(b) subject to subsections (5) and (6), the order is authenticated under section 66 of that Act; and
(c) the order is in force in the foreign country seeking registration of the order.
(3) Subject to subsection (4), sections 19, 21 to 23, and 27 to 29 apply to an order made under this section, with any necessary modifications.
(4) The reference in section 28(2) to legal expenses must be read as including reference to a respondent’s legal expenses in defending allegations of criminal activity in the foreign country seeking the order.
(5) An exact copy of a sealed or an authenticated copy of a foreign restraining order must, for the purposes of this Act, be treated as a sealed or authenticated copy.
(6) However, registration of an exact copy ceases to have effect on the expiry of a period of 21 days commencing on the date of registration unless, before the expiry of that period, the sealed or authenticated copy is registered.
(7) For the purpose of this section, foreign restraining order includes an amendment to a foreign restraining order.