Contents

Chapter 5
Grounds for refusal

Mutual assistance

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.141 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.142

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,143 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.144
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.145 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.146

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.

Recommendations

141The two grounds upon which assistance must be refused in cl 22 the Mutual Assistance Bill are: (1) that there are substantial grounds for believing the request was made for a discriminatory purpose; and (2) that any person will be subjected to torture, or inhumane or degrading treatment, if the assistance is provided. In relation to discriminatory purpose, it is appropriate that there is no discretion as this relates to the purpose of the request itself: There is not a risk the ground may apply – it either applies or it does not. It is also important in demonstrating New Zealand’s commitment to its international obligations under the ICCPR, above n 119. As for torture, given that the prohibition against torture under the Convention against Torture, above n 118, and in customary international law has such significance, it is difficult to justify providing assistance where a risk of torture exists. See Issues Paper, above n 113, at [15.50].
142The judgement involved in determining whether or not a ground for refusal applies can be seen particularly in relation to the assessment as to whether the investigation, prosecution or proceedings underlying the request are of a political character. As such, instead of defining “political offence” in the new Bill, we have suggested that assistance may be refused if “the request relates to an investigation or a prosecution or proceedings of a political character”. Although Police and the New Zealand Law Society were supportive of including a definition of “political offence” (in contrast to Crown Law, who pointed out the inherent difficulties of reaching such a definition), we do not think it is appropriate in the mutual assistance context. We think our approach allows the Central Authority scope to assess whether or not the request is of a political nature: the key inquiry the Central Authority ought to be making in this context.
143Mutual Assistance in Criminal Matters Act 1987 (Cth), s 8(2)(g).
144Issues Paper, above n 113, at [15.57].
145New Zealand Law Society submission at [76]; New Zealand Police submission at 12; and Office of the Privacy Commissioner submission at 2–3.
146Crown Law submission at [95].