Contents

Chapter 3
The role of treaties

Treaties and our Mutual Assistance Bill

3.21In addition to interagency agreements, New Zealand is a party to the following international instruments:

3.22Clearly the non-binding instruments should not modify or supplement our proposed Bill. However, we have mentioned these instruments here because we recognise the importance of making our Bill as consistent as possible with the guidance in these schemes. That is what we have sought to achieve.

Areas of possible modification

Existing treaties

3.23We have reviewed New Zealand’s binding mutual assistance treaties to identify where they contain additional detail to that contained in our proposed Bill. The table below reflects how we see that interaction working in future.

Area Our Bill without reference to the treaty What the treaties say Our proposals and reasons
Form and content of incoming requests A request must relate to a criminal matter (including certification thereof) or criminal proceeds matter, and must include any information required in relation to a specific type of assistance, or required by regulations. The treaties often contain detailed rules as to the form and content of requests. The treaties may require additional information but they should not derogate from any required information.
Urgency The Bill contains no urgency procedure. Several treaties provide for requests to be made orally or via certain forms of communication in urgent situations, with the written request or formal confirmation to follow. Urgency can be dealt with operationally.
Costs Our Bill provides that if assistance would impose an excessive burden, the Central Authority may require a reasonable cost contribution, subject to treaty obligations (cl 22). Both the bilateral and multilateral agreements begin with the presumption that the requesting party bears the costs, but some treaties provide exceptions. Our Bill is explicitly made consistent with treaty obligations.
Grounds for refusal Our Bill has two types of grounds: grounds where the Central Authority must refuse to provide assistance (cl 18), and grounds where the Central Authority may refuse to provide assistance (cl 19). Several treaties state that no request should be refused on the grounds of “bank secrecy”83 or because the “offence is also considered to involve fiscal matters”.84

No treaty contains any obviously new grounds for refusal, but they do use different words to cover similar concepts.
The Bill expressly provides that the Central Authority must take account of New Zealand’s international obligations (cl 19(3)).

None of the grounds on which the Central Authority must refuse are inconsistent with our treaty obligations.
Postponing, conditional and partial assistance Assistance may be provided subject to conditions (cl 22). Most of the treaties state that assistance may be postponed if it would interfere with a domestic criminal matter, but before postponing the requested country must consult about the possibility of conditional assistance. The Bill is consistent with the obligations in the treaties.
Providing reasons for refusing The Bill provides that reasons must be given. Reasons must be given for any refusal or postponement. The Bill is consistent with the treaty obligations.
Use of material provided Our Bill provides that the requesting country must give an undertaking as to “speciality” (cls 30 and 34). The treaties all contain such an assurance. Some contain the caveat that, if prior notification is not possible, the material may still be used for a new exculpatory purpose.85 Some also state that, if requested, the material provided must be returned. The return of material is simply an extra assurance, and the Central Authority can authorise use of the information for a new exculpatory purpose.86
Transfer of witnesses including prisoners We are proposing detailed provisions governing this form of assistance. Specific assurances will be required. Several treaties contain very detailed articles regarding the transfer of witnesses, including prisoners. These articles contain the types of assurances that the Bill will require. Notably, some of the treaties deviate from our proposed Bill in relation to the assurance that the witness will not be prosecuted for additional offending.87 Assurances given generally in a treaty are likely to be sufficient to meet the requirement of the Bill.
Additional types of assistance Our Bill provides that a form of assistance can be granted so long as it is legally available, and subject to the requirements of New Zealand law. The various treaties refer to several additional types of assistance. In our view, our Bill fully complies with the types of assistance mentioned in the treaties.

Future treaties and other agreements

3.24Our proposed Bill will specify, in several instances, that the Central Authority cannot provide a type of assistance unless the requesting country has provided specific assurances (for example, in relation to search and surveillance assistance, interim restraining orders and transfer of witnesses). To facilitate timely search assistance, New Zealand may wish to negotiate a treaty or other agreement in advance with certain countries (such as Australia) so that the requisite assurances do not always need to be provided on a case-by-case basis.88 Our Bill has been drafted to facilitate this.

RECOMMENDATION

83United Nation Conventions against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1582 UNTS 95 (opened for signature 20 December 1988, entered into force 11 November 1990); United Nations Convention against Corruption, above n 56; and United Nations Convention Against Transnational Organized Crime, above n 54.
84United Nations Convention against Corruption, above n 56; United Nations Convention Against Transnational Organized Crime, above n 54; and Convention on Cybercrime CET 185 (opened for signature 23 November 2001, entered into force 1 July 2004).
85United Nations Convention against Corruption, above n 56; and United Nations Convention Against Transnational Organized Crime, above n 54.
86See commentary to cls 30 and 34 of the Mutual Assistance in Criminal Matters and for Recovery of Criminal Proceeds Bill [Mutual Assistance Bill], in ch 17 of this Report.
87The Hong Kong treaty states that no additional charges may be laid for 21 days (as opposed to 15, which is in our Bill and the other treaties). This provides more protection than our Bill. No legislative recognition is needed to give effect to that. The Korea, Hong Kong and China treaties state that no additional charges may be laid except for perjury, making false declarations or contempt in relation to the giving of evidence. The Bill makes explicit recognition of “proceedings that are similar to perjury and that have been agreed as an exception in a [mutual assistance] treaty”: cl 33(1)(d)(iii).
88Mutual Assistance Bill, cl 29.