Principal proposals for mutual assistance

14In our Issues Paper, we identified the following as key aspects of the Mutual Assistance in Criminal Matters Act 1992 (MACMA) that needed improvement, strengthening and simplification.

Gateway role

15MACMA serves as a gateway, allowing a foreign country access to New Zealand’s domestic powers and techniques for the investigation and prosecution of crime, and restraint and forfeiture of property derived from crime.

16Our Bill is designed to make it clear that the default position is that the Central Authority can grant any foreign country access to the same law enforcement measures that can be used domestically, subject to the same domestic constraints. From there, the Bill sets out necessary additional preconditions and protections, both of a general nature, and of a specific nature in relation to particular types of request.

17Although the Bill will facilitate access to criminal assistance in New Zealand, the primary responsibility for providing that assistance will lie with New Zealand law enforcement authorities. The primary responsibility for executing a search warrant, for instance, will remain with the New Zealand Police, who will also be accountable domestically for how that search is conducted.

Gatekeeper roleTop

18MACMA also serves as a gatekeeper, ensuring that access to New Zealand tools is provided only in appropriate circumstances, and that the rights of any individuals affected by the request are sufficiently protected.

19Not all requests for assistance will be appropriate, especially when first made. Our proposed Bill strengthens this gatekeeping role by clarifying the grounds under which assistance should, or can be, refused. Our Bill makes it clear that New Zealand values will remain central and of crucial concern to the approval process.

Mutual assistance and New Zealand’s international obligationsTop

20As we wrote in our Issues Paper, international treaties are likely to vary the processes by which New Zealand provides assistance to foreign countries. Our proposed Bill sets out how those international obligations might vary the processes and procedures around providing assistance. However, most mutual assistance treaties are explicitly subject to domestic law. Therefore, our Bill provides the baseline requirements, which must be met but may be supplemented by treaty.

Clarifying the relationship with other forms of mutual assistanceTop

21We have given in-depth consideration to the relationship between formal mutual assistance provided under MACMA and our proposed Bill, and other mutual assistance arrangements between regulatory agencies and their foreign counterparts. These various relationships should be made clear. Interagency mutual assistance agreements will become more prevalent over the coming years.

22Our Bill is clear that such regulatory agency arrangements are not affected by our reforms, to the extent they do not involve coercive assistance such as the use of a search warrant. If they do, then they must be specifically authorised by another statute or comply with the proposed Bill.

23Furthermore, we remain concerned that agencies entering such agreements should be mindful of the importance of making sure that New Zealand’s values are reflected in those agreements, and so we have suggested an oversight role for the Central Authority.

Provision of information held by government departmentsTop

24In our Issues Paper, we were critical of the use of the Official Information Act 1982 by the New Zealand Central Authority, on behalf of foreign authorities, to satisfy requests for information held by other New Zealand government departments. We have provided a bespoke regime in the new Bill to address this issue. The regime is designed to allow such requests to be granted in the same way that they might be granted if the request came from another New Zealand government department. In doing so, we have replicated the general structure of providing assistance under our Bill. The Central Authority will determine whether the request for assistance should be granted; but in general terms it will be the information-holding agency that will decide whether the reason for which the information is sought is compatible with what would otherwise have been its obligations to the individual concerned under the Official Information Act and the Privacy Act 1993.