The role of treaties
The differing nature of extradition and mutual assistance treaties
3.3There are two major differences between the way treaties interact with domestic legislation in relation to mutual assistance and extradition that are important to the way in which we have drafted the proposed Bills:
- First, there is only one mechanism for extraditing a person from New Zealand: The Extradition Act must be used, even if there is a treaty. Mutual assistance is not the same. While the MACMA is one route by which assistance may be given, interagency agreements provide an overlapping but alternative process for co-operation across government and sometimes provide for assistance in the criminal context. We discussed a range of interagency agreements, and bilateral and multilateral treaties and arrangements, in Chapter 13 of our Issues Paper. However, MACMA is the main (but not the only) route by which coercive assistance can be given. Therefore, unlike extradition, a treaty could be relevant to mutual assistance in two ways: a treaty that forms the basis of an interagency scheme could seek to provide an alternative to MACMA, which would require its own legal basis in domestic law; or a mutual assistance treaty could seek to modify or complement MACMA (as extradition treaties seek to modify or complement the extradition law).
- Second, unlike extradition treaties, there is no history of mutual assistance treaties being given direct effect in domestic legislation. Mutual assistance is a way of tapping into existing domestic law relating to investigative and evidence-gathering powers. Many international instruments are non-binding (for example, the Harare Scheme and the Financial Action Task Force Standards). Those agreements that seek to be binding often contain phrases like: “without prejudice to domestic law”, “to the extent not contrary to the domestic law”, and “wherever possible and consistent with fundamental principles of domestic law”. Given that these international instruments defer, almost entirely, to domestic law, there is not the same concern about expressly using the procedures as described in the treaties.