Grounds for refusal
The discretionary nature of most of the grounds in the Bill
5.25Under the new Mutual Assistance Bill, in contrast to the Extradition Bill, all but two of the grounds for refusal are drafted in discretionary terms. The key reason for the difference in approaches is that whereas in the extradition context a person is being delivered to another country where there is a direct risk that the issue the ground addresses will be engaged, this is less clear in the mutual assistance context.
5.26It may be, for example, that there is a risk that providing assistance could form part of an investigation that ultimately leads to charges for which the death penalty is a possible punishment. However, it may be significantly more likely that that assistance would lead to other charges not engaging the death penalty. At the other extreme, it may be that the request seems trivial, but it would be in the interests of justice to assist with the particular request in the interests of international cooperation in combatting transnational crime. As such, it is important that the Central Authority is able to balance the likelihood that a ground is likely to be engaged against New Zealand’s commitment to combatting transnational crime.
5.27It is important to make clear, however, that making refusal a matter of judgement does not imply that the Central Authority will grant the assistance as a matter of course. Any granting of assistance must take into account New Zealand values in determining whether a ground for refusal applies, and whether those underlying values mean that assistance should not be given notwithstanding the general desire to assist in international law enforcement. For instance, if a real prospect exists that the death penalty might result from New Zealand granting assistance, we would expect an application would be declined unless sufficient assurances to the contrary can be obtained.
A general discretion to refuseTop
5.28MACMA does not currently include a general discretion to refuse assistance beyond the specific grounds, and such a provision is uncommon in mutual assistance statutes internationally and in international schemes. Even so, the Australian Act does include such a provision, and in the Issues Paper we queried whether New Zealand’s statute should also include a general discretion to refuse assistance if it is appropriate in the circumstances that the assistance should not be provided.
5.29There was support from the Law Society, the Police and the Office of the Privacy Commissioner for such a discretion, on the basis that it provides a safety mechanism in circumstances where a request could not otherwise be refused under the statute. Support was tempered, however, by a concern that including such a general discretion could be perceived to reduce New Zealand’s commitment to mutual assistance. On this basis Crown Law did not support inclusion of a general ground for refusal, arguing that it might make New Zealand vulnerable to criticism that considerations other than those identified in specific grounds may inappropriately be playing a part in decisions on particular requests.
5.30Nevertheless, we think the general discretion provides important scope to decline requests that New Zealanders would consider inappropriate, but where refusal does not fit neatly into another ground for refusal. Clause 23(3) is intended to guide the appropriate exercise of the discretion, requiring that the Central Authority take into account New Zealand’s international obligations and the interests of justice relevant to the case: on the one hand, this includes the important role New Zealand must play in combatting transnational crime; on the other, the Central Authority will not fulfil a request where it would be inconsistent with New Zealand values. This guidance demonstrates New Zealand’s commitment to providing mutual assistance internationally and should allay concerns that New Zealand is taking into account inappropriate considerations in exercising the general discretion to refuse. Finally, the requirement in clause 25 that reasons must be given for a refusal to provide assistance provides additional assurance that only appropriate considerations are taken into account.
- R13 Most of the grounds for refusing a mutual assistance request should be drafted in discretionary terms.
- R14 The Central Authority should have a general discretion to refuse a mutual assistance request in appropriate circumstances.