Contents

Chapter 17
Mutual Assistance in Criminal Matters and for ​Recovery of Criminal Proceeds Bill
and commentary

Commentary on selected provisions

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

Commentary

The Mutual Assistance in Criminal Matters Act 1992 (MACMA) provides that assistance must be refused if the request: “… relates to the prosecution or punishment of a person in respect of 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 criminal law of New Zealand.”489
We noted in the Issues Paper that although the ground is rarely applicable, its retention as a potential ground for refusal in New Zealand’s mutual assistance statute was important.490 We have, however, decided it is more appropriately dealt with in the definition of “criminal matter”. This is consistent with the Extradition Bill, in which we excluded military-only offences from the definition of “extradition offence”.491

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.

Commentary

This clause sets out the role of the Central Authority. We have sought to make clear that the Central Authority is the key player, emphasising the role it plays in making and receiving requests for assistance, and evaluating and authorising incoming requests.492
As noted in the Issues Paper, the Central Authorities for mutual assistance and extradition should be aligned to allow a coordinated approach to the assistance New Zealand provides to foreign countries in criminal matters. This will be particularly beneficial where a foreign country’s request involves both extradition and mutual assistance proceedings.493

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.

Commentary

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.

Commentary

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.

Commentary

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.

Commentary

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.

In relation to torture, the prohibition against torture under the Convention against Torture and in customary international law is absolute. It is impossible to justify providing assistance if torture may be the end result.494
In relation to discriminatory purpose, if the Central Authority is satisfied the request was made for such a purpose, it should always refuse the request. This is consistent with the value New Zealand places on combatting discrimination in its domestic law,495 and is important in demonstrating New Zealand’s commitment to its international obligations under the International Covenant on Civil and Political Rights.496
In terms of the possible grounds of discrimination, we have chosen to cross-reference the list in section 21 of the Human Rights Act 1993. In the Issues Paper, we noted that MACMA contains a fairly limited range of potential grounds of discrimination and we proposed an expansion.497 In the Issues Paper, we focused specifically on including discrimination on the basis of sexual orientation, age and disability, and all submitters agreed that this was appropriate. The benefit, however, of cross-referencing the Human Rights Act is that it contains an even more comprehensive list, including those grounds we previously proposed for inclusion, as well as others, such as marital, employment and family status. Furthermore, by cross-referencing the Human Rights Act rather than repeating the grounds we ensure that any extension of the discrimination grounds under the Human Rights Act would automatically be included in the Mutual Assistance Bill. We acknowledge that this approach is different from the approach we have taken to the equivalent discrimination ground for refusal in the Extradition Bill. See the commentary to clause 20(c) of the Extradition Bill for an explanation of that difference.

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.

Commentary

Our view is that almost all of the grounds for refusal should leave some discretion for the Central Authority. As discussed in Chapter 5, it is not always clear that the substance of the ground will be engaged. MACMA similarly includes several discretionary grounds for refusal, but the Act provides no guidance on what the Attorney-General should consider in determining whether to refuse on the basis of the relevant ground.498 Subclause (3) is designed to provide some guidance on this, by directing the Central Authority to consider whether provision of assistance would otherwise be in the interests of justice and comply with New Zealand’s international obligations.

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.

Subclause (4) of clause 23 is designed to provide some guidance as to the threshold for the triviality ground for refusal. It follows the definition of what constitutes triviality under the Harare Scheme.499 The triviality ground in MACMA is bundled with a ground for refusal on the basis that “the provision of assistance … would impose an excessive burden on the resources of New Zealand”.500 We think the issue of “excessive burden” is more appropriately dealt with in relation to considerations as to whether assistance may be provided subject to conditions. This is dealt with in clause 22 of the Bill, and also in the commentary below.

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.

Commentary

This clause clarifies that the grounds for refusal in clauses 22 and 23 apply to the investigation, as well as the prosecution and punishment, of offences. In the Issues Paper, we noted that many of the grounds for refusal in MACMA do not apply to the investigation stage, but only to assistance with the prosecution or punishment of an offence.501 The difficulty in relation to the investigation stage is that a particular offence may not have been identified at that time. For the same reason, this may cause problems for the definition of “criminal matter” in clause 6. Clause 24 is included to make it clear that the Central Authority is not required to identify a particular offence for requests for assistance made in relation to investigations.

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.

Commentary

In the Issues Paper, we queried whether the Bill should include a specific cost-contribution provision as a condition of the Central Authority agreeing to requests.502 All submitters who responded to this question agreed that there should be such a provision. The wording of clause 26(2) recognises that it is traditional for the requested country to bear the costs of providing assistance, but if providing that assistance would impose an excessive burden on New Zealand’s resources, payment of reasonable costs can be required as a condition of providing the requested assistance. This incorporates the “excessive burden” ground for refusal from MACMA.
The other key element of clause 26(2), is that the discretion to require cost contribution is subject to arrangements for costs in any mutual assistance treaty to which New Zealand is a party. This is necessitated by New Zealand’s current international obligations. For instance, the Treaty with Hong Kong provides:503

(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.

Commentary

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.

Commentary

In the Issues Paper, we queried whether the Bill should include a “speciality” ground for refusal; that is, a ground to refuse to provide assistance on the basis that there is no assurance that the material to be provided to the requested country will be used solely for the requested purpose.504 This suggestion found broad support amongst submitters. Rather than dealing with speciality in the grounds for refusal, we think that it is more appropriately included as a prerequisite for obtaining any evidence or information. We have limited this to evidence and information because with requests for other types of assistance, speciality will never be an issue (for example, requests for assistance to serve a summons in New Zealand). 

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.

Commentary

Access to search and surveillance assistance under MACMA is arguably very limited,505 and this is inconsistent with the principle that powers and investigative techniques available to domestic authorities should be available to assist foreign investigations and prosecutions. As such, in clause 35 we have broadened the assistance that can be provided by New Zealand to a requesting country to any warrant or order under the Search and Surveillance Act 2012. We do not, however, think that it is appropriate to give foreign countries access to warrantless search powers under the Search and Surveillance Act and clause 36 is included to make this absolutely clear.

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.

Commentary

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.

Commentary

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

Commentary

The way in which MACMA currently interacts with the Criminal Proceeds (Recovery) Act 2009 (CPRA) is unnecessarily complex and confusing. For instance, the Central Authority’s power to authorise the Commissioner of Police to apply to the High Court to register a foreign order is contained in MACMA.506 The power for the Commissioner to apply to make the registration, the list of CPRA provisions applying to the registration of foreign orders, and a number of other matters relating to registration, are all contained within CPRA.507 However, the High Court’s registration of the order is dealt with under MACMA.508 From there, the effect of the order is covered in MACMA and CPRA.509 This creates an unnecessarily complex back-and-forth between the two Acts.
We think the better approach is the one we have taken in our Bill. Under this approach, the mutual assistance legislation would cover the Central Authority’s authorisation to the Police/Commissioner/Official Assignee to apply for the relevant order under CPRA (including the matters the Central Authority must take into account in making this authorisation).510 Subpart 8 of Part 2 of CPRA would then contain the provisions related to the application for, registration of and effect of the foreign orders, cross-referencing any applicable domestic provisions of CPRA.511

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.

The provisions contained in subpart 3 of Part 2 and the Schedule of our draft Bill have been designed to illustrate two things: (1) the way in which the Bill and CPRA should interact (as described above); and (2) our policy relating to interim foreign restraining orders. In order to illustrate these, we have drafted the relevant provisions of the Mutual Assistance Bill and the main amendments that should be made to CPRA. It is important to note, however, further consequential amendments to CPRA will be necessary to complete the scheme.512

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

Commentary

MACMA provides that foreign restraining orders must be made by a “court or judicial authority”.513 Although it remains appropriate that foreign forfeiture orders must always be made by a court or judicial authority, we understand that in a number of countries restraining orders are routinely made by non-judicial authorities.514 We think that the basic requirement should remain that a court of judicial authority has made the order because it imports notions of impartiality and independence. It is important to leave room, however, for the New Zealand Government to agree by treaty with a foreign country that orders made by a different authority in that country will be acceptable. We acknowledge that dealing with this issue by treaty may take some time, and would need to be dealt with on a country-by-country basis. However, given the impact such an order has on a person’s private property rights, it is important that New Zealand is satisfied that the order has been made by an appropriately independent and impartial authority before it recognises such an order. Requiring this to be dealt with by treaty will ensure that the non-judicial authority in the foreign country will have been subjected to close scrutiny, and that recognising an order made by that authority would not be inconsistent with New Zealand values.

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.

Commentary

The scheme for interim foreign restraining orders contained in this provision and in new sections 128–128B (contained in the Schedule to this Bill),515 is designed to implement our proposal from the Issues Paper.516 It resolves two fundamental issues inherent in the current interim foreign restraining order scheme: (1) inappropriate delays at the request and authorisation stage; and (2) unnecessary discrepancies between the tests for authorisation applied by the Central Authority, and for registration applied by the court.517 The provisions in the new Bill streamline the existing process for obtaining an interim foreign restraining order, while balancing the need for expeditious restraint of property and protection of individual property rights.

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.

Commentary

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 125A should provide the Official Assignee with the power to apply for a search warrant under section 110 of CPRA, if authorised under clause 50 of the Mutual Assistance Bill. It should specify that sections 110(1), (2) and (4) of CPRA apply with any necessary modifications,518 and that any search warrant should be executed in accordance with section 114 of CPRA.
New section 125B should provide the Commissioner of Police with the power to apply for an examination order under section 104 of CPRA, if authorised under clause 50 of the Mutual Assistance Bill. It should also provide that sections 104(2), (3) and (4) and 105(1), (2), (3) and (4) apply with any necessary modifications to an application and determination of an application.519

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.

Commentary

Clause 55 is designed to ensure that evidence will not be inadmissible solely because it does not comply with requirements as to form. As we noted in the Issues Paper, there may be difficulties getting evidence in the appropriate form, particularly from civil law jurisdictions in which, for example, the concepts of oath and affirmation are not used.520 Clause 55 makes it clear that evidence should not be excluded solely for the reason that it does not meet form requirements.

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.

Commentary

As noted above, in the commentary to clause 47 of the Mutual Assistance Bill, one of the problems with the current scheme relating to the interim foreign restraining orders is the unnecessary discrepancies between the tests for authorisation applied by the Central Authority, and for registration applied by the court. Under the current scheme, the Central Authority considers whether there is a criminal investigation in the foreign country in relation to the four categories of criminal proceeds: (a) tainted property; (b) property that belongs to a person who has unlawfully benefited from significant foreign criminal activity; (c) an instrument of crime; or (d) property that will satisfy some or all of a foreign pecuniary penalty order. By contrast, the court must treat an application for an interim foreign restraining order as if it is an application for a domestic order, and so must consider whether the property does, in fact, fall within one of the four categories of property described above (as required under sections 24–26 of CPRA). This requires a much more extensive examination of the foreign evidence than that conducted by the Central Authority. These tests are too dissimilar. As was noted in the Issues Paper, the Central Authority may be satisfied as to the nature of the foreign investigation; however, on the same information, the High Court may not be able to ascertain a clear enough understanding of the connection between the relevant property and the criminal activity to satisfy itself of the requirements in sections 24–26 of CPRA.521 As such, in the amendments to CPRA in the Schedule to our Bill, sections 24–26 of CPRA do not apply. Instead, the court is focused upon whether the Central Authority has followed the process outlined in clause 47 of the Bill (that is, that it has certified under clause 47(2) satisfaction with the relevant matters outlined clause 47(1)).

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.

Commentary

While the court may make a domestic restraining order subject to any conditions it considers fit, section 28(2) provides that the court “may not allow any legal expenses to be met out of a respondent’s restrained property”. Currently, this exception does not apply to foreign restraining orders registered in New Zealand.522 We see no basis to distinguish between domestic and registered foreign restraining orders.523 As such, new section 134A of CPRA makes it clear that section 28 applies in its entirety, including the legal expenses exception. The same applies to new section 134A(4) of CRPA.

489Mutual Assistance in Criminal Matters Act 1992, s 27(1)(e).
490Law Commission Extradition and Mutual Assistance in Criminal Matters (NZLC IP37, 2014) [Issues Paper] at [15.16]–[15.17].
491Extradition Bill, cl 7(1)(d). See the discussion in relation to extradition in Issues Paper, above n 490, at [8.52]–[8.55].
492See ch 12 of this Report for further discussion.
493See Issues Paper, above n 490, at [14.26].
494See Issues Paper, above n 490, at [15.50].
495See New Zealand Bill of Rights Act 1990, s 19; and Human Rights Act 1993, s 21.
496International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 12 December 1966, entered into force 23 March 1967); entered into force in New Zealand on 28 March 1979.
497See Issues Paper, above n 490, at [15.11].
498See Mutual Assistance in Criminal Matters Act 1992, s 27(2).
499Scheme Relating to Mutual Assistance in Criminal Matters within the Commonwealth including amendments made by Law Ministers in April 1990, November 2002, October 2005 and July 2011 [Harare Scheme] at [8(1)(g)]. See discussion in Issues Paper, above n 490, at [15.39]–[15.40].
500Mutual Assistance in Criminal Matters Act 1992, s 27(2)(g).
501Issues Paper, above n 490, at [15.58]–[15.60].
502Issues Paper, above n 490, at [21.21]–[21.28], particularly [21.26]–[21.28].
503Agreement between the Government of New Zealand and the Government of the Hong Kong Special Administrative Region of the People’s Republic of China Concerning Mutual Legal Assistance in Criminal Matters 2132 UNTS 129 (signed 3 April 1998, entered into force 1 March 1999). For full discussion of the effect of mutual assistance treaties on cost contribution, see ch 3 of this Report.
504Issues Paper, above n 490, at [15.51]–[15.56].
505See Issues Paper, above n 490, at [17.14]–[17.16].
506Mutual Assistance in Criminal Matters Act 1992, ss 54(2) and 55(2).
507Criminal Proceeds (Recovery) Act 2009, ss 132–134 and 140–147.
508Mutual Assistance in Criminal Matters Act 1992, s 56.
509See Mutual Assistance in Criminal Matters Act 1992, s 57; and Criminal Proceeds (Recovery) Act 2009, ss 135–139 and 140–149.
510There are two exceptions. Firstly, the duration of a registered foreign restraining order will be dealt with in CPRA, but cancellation is dealt with in the Mutual Assistance Bill (Mutual Assistance Bill, cl 49). This is because the Central Authority will need to initiate this process. Secondly, any material seized or obtained as a result of a search warrant, production order or examination order issued under CPRA must be dealt with in accordance with an agreement negotiated between the New Zealand Central Authority and the foreign central authority before the New Zealand Central Authority authorises the provision of assistance (Mutual Assistance Bill, cl 50). It is important that this is dealt with in the Mutual Assistance Bill because it is fundamental to the Central Authority’s authorisation of the provision of assistance.
511The necessary amendments to be made to the Criminal Proceeds (Recovery) Act 2009 are contained in the Schedule to the Mutual Assistance Bill.
512For instance, much of s 134 of the Criminal Proceeds (Recovery) Act 2009 is contained in new s 134A (in the Schedule to the Mutual Assistance Bill), thus s 134 will need to be substantially amended.
513Mutual Assistance in Criminal Matters Act 1992, s 56.
514For instance, we understand that under Chinese criminal procedure law, initial asset forfeiture power is vested in the administrative arm of the Police and Prosecutors Office. Confiscation powers, however, are retained in the hands of the courts.
515Dealing with the necessary amendments to the Criminal Proceeds (Recovery) Act 2009.
516Issues Paper, above n 490, at [16.38].
517For a full discussion of the issues arising out of the current scheme governing interim foreign restraining orders, and our proposal, see Issues Paper, above n 490, at [16.24]–[16.38].
518Including that: “application for a restraining order” should be read as “application to register a foreign restraining order”; “restraining order” should be read as “registered foreign restraining order”; and “forfeiture order” should be read as “registered foreign forfeiture order”.
519Including that: a foreign criminal proceeds investigation or proceeding should be treated as if it is an investigation or proceeding under CPRA.
520Issues Paper, above n 490, at [22.21].
521Issues Paper, above n 490, at [16.28]–[16.31].
522Criminal Proceeds (Recovery) Act, s 134(1)(d) states that only s 28(1), (3) and (4) of the Act apply to registered foreign restraining orders.
523See discussion in Issues Paper, above n 490, at [16.43]–[16.50].