Chapter 12


12.1Along with a review of the Extradition Act 1999, the Law Commission has been asked to review the Mutual Assistance in Criminal Matters Act 1992 (MACMA) to ensure it contains processes that are efficient, effective, and not overly complex or unnecessarily expensive but that also provide important checks and balances to protect those being investigated.519
12.2MACMA is New Zealand’s primary statute governing the process New Zealand uses to provide and obtain foreign assistance in criminal investigations and prosecutions. The process is known as “mutual legal assistance”,520 and it includes, for example, assisting foreign countries in identifying and locating persons and serving legal documents. Mutual legal assistance can also involve coercive actions such as the execution of searches and the recovery of assets. Foreign countries cannot undertake these actions in their own right as their powers are limited by the general principle that law enforcement is territorial. Legislation such as MACMA is therefore essential because, as one commentator put it, criminals “work in a borderless world, whilst the authorities that pursue them are constrained by borders”.521 MACMA can therefore be regarded as gateway legislation in that it allows foreign countries a route through which they can access the tools New Zealand uses when investigating and prosecuting criminal activity.
12.3This gateway role is coupled with an important gatekeeping function. MACMA contains detailed direction on the form a request must take and the criteria that must be present for assistance to be considered. It also contains an extensive range of grounds on which a request must or may be refused. Each request is scrutinised and decided on a case-by-case basis. As the designated Central Authority under the Act, the Attorney-General is given the primary responsibility for the gatekeeper role.522 In the case of coercive orders, such as searches or restraint of proceeds of crimes, it is also necessary for the Central Authority to seek either a warrant or an order from a court in the same way as a domestic law enforcement agency. These two doors through which requests of a coercive nature must pass – the first being the Central Authority, the second being the court process – provide an additional safeguard. The gatekeeping function in MACMA ensures that foreign assistance is only provided in the appropriate circumstances and the rights of individuals in New Zealand affected by the request are sufficiently protected.

12.4The gateway and gatekeeping functions of the Act are clearly related to requests received by New Zealand (incoming requests). While MACMA also contains some provisions on requests made by New Zealand (outgoing requests), the ability for New Zealand to make requests is dependent on assistance the foreign country can provide under its own legislation.

12.5In the 20 years since MACMA was enacted, the landscape for transnational crime has changed significantly and the ability for criminals to work in a “borderless world” has dramatically expanded. The world has witnessed considerable advancements in technologies and communications, rapid expansion of global markets, and a marked increase in the use of international travel and the breadth of destinations travelled to. This has increased the opportunity for the evidence and the proceeds of crime to be located in different countries.

12.6As international crime grows and the need to combat what has been termed “international criminal procedure”523 expands, it is timely to undertake a review of MACMA. The likely impact of developments over time was recognised back in 1992 when the Bill was undergoing its third reading, with a Member of Parliament expressing that “[i]n time, [MACMA] will have to be extended because, of course, criminals can go as far as aeroplanes will fly”.524
519See Appendix A for full terms of reference.
520“Mutual legal assistance” is “the process whereby one state provides assistance to another in the investigation and prosecution of criminal offences”: William Gilmore (ed) Mutual Assistance in Criminal and Business Regulatory Matters (Cambridge University Press, Cambridge, 1995) at xii. Note that “mutual legal assistance” is to be distinguished from “mutual assistance”, the latter referring to assistance provided by one state to another generally.
521Neil Boister An Introduction to Transnational Criminal Law (Oxford University Press, Oxford, 2012) at 3.
522The role of the Central Authority is discussed in ch 14. This is to be distinguished from the central authority we have proposed in Part 1 of this issues paper.
523Robert Currie “Human Rights and International Mutual Legal Assistance: Resolving the Tension” (2000) 11 Crim LF 143 at 145.
524(15 September 1992) 529 NZPD 10877 per Hon Richard Prebble.