Chapter 12

The legislation

12.7Prior to the 1980s, crime was often regarded by legal systems as a local matter, and there was a limited framework through which countries could assist one another.525 Aside from extradition, assistance was limited to forms of informal cooperation such as cooperation between national police forces through Interpol.526
12.8During the 1980s, there were considerable developments on mutual legal assistance at an international level. The biggest influence on New Zealand in this area was the 1986 Commonwealth Scheme for Mutual Assistance in Criminal Matters (Harare Scheme). The Scheme was adopted by Commonwealth Ministers at a Law Ministers’ meeting in Harare in 1986 to increase assistance between Commonwealth governments in criminal matters. The New Zealand Government was represented at that meeting by the then Attorney-General, Geoffrey Palmer.527
12.9In April 1992 the Mutual Assistance in Criminal Matters Bill was introduced.528 It was described as a Bill “designed to make easier the provision and obtaining by New Zealand of international assistance in criminal matters”.529 In the second reading, the then Attorney-General, Paul East, explained that:530

The Bill sends a message to those involved in crime at an international level: that New Zealand recognises that in the 1990s the enforcement of criminal law can no longer stop at national borders. Countries must be prepared to co-operate with one another in order to bring offenders to justice and to deprive them of the proceeds of their crimes. The Bill shows that New Zealand is prepared to play its part in the fight against international crime.

12.10The passage of the Bill was smooth. On 25 September 1992, the Bill was given Royal Assent, and MACMA came into force on 1 April 1993.

Purpose of MACMA

12.11The object of MACMA is to facilitate the provision and obtaining of international assistance in criminal matters, including:531
(a) the identification and location of persons:
(b) the obtaining of evidence, documents, or other articles:
(c) the production of documents and other articles:
(d) the making of arrangements for persons to give evidence or assist investigations:
(e) the service of documents:
(f) the execution of requests for search and seizure:
(g) the forfeiture of—
(i) tainted property; and
(ii) property of persons who have unlawfully benefited from significant criminal activity or significant foreign criminal activity; and
(iii) instruments of crime; and
(iv) property that will satisfy all or part of a foreign pecuniary penalty order:
(h) the location of property that may be forfeited:
(i) the recovery of property to satisfy foreign pecuniary penalty orders:
(j) the restraining of dealings with property, or the freezing of assets, that may be forfeited.
12.12Countries are compelled to seek mutual legal assistance for such activities because their borders represent the geographical boundaries of their enforcement jurisdiction. Common law countries were initially hesitant about the provision of mutual legal assistance because of the traditional understanding that criminal law is local, and in providing legal assistance, they would be enforcing another state’s criminal law. Civil law countries viewed it as simply providing assistance to other states to enforce their own laws over criminal offences that concerned them. In any respect, today it is widely accepted that “the provision of legal assistance does not mean that the requested state exercises the requesting state’s sovereign power; rather, it uses its own power to do something for the requesting state”.532

When may MACMA assistance be sought?Top

12.13As the name of the Act suggests, assistance under MACMA only applies in respect of criminal matters. The term “criminal matters” is defined in the Act as “criminal investigations and criminal proceedings”, both of which are further defined in the Act:533
12.14The point at which government assistance under MACMA can be sought was canvassed in the Harare Scheme discussions in the 1980s. At that time, New Zealand argued that no request for assistance should be permitted until criminal proceedings had actually been instituted. Underlying this view were fears that information or evidence could be used for purposes unrelated to the criminal matter originally relied upon or that a premature request could alert a prospective defendant.534 Australia, on the other hand, argued that Commonwealth cooperation should extend to mutual assistance in investigating serious crime and should include preventive action.535
12.15The Harare Scheme provides that:536

For the purposes of this Scheme, a criminal matter arises in a country if the Central Authority of that country certifies that criminal or forfeiture proceedings have been instituted in a court exercising jurisdiction in that country or that there is reasonable cause to believe that an offence has been committed in respect of which such criminal proceedings could be so instituted.

12.16This was seen as a compromise between the two differing positions on the timing of mutual legal assistance requests. The fears associated with the ability to access assistance before the commencement of a proceeding were minimised by the inclusion of a provision in the Scheme prohibiting the use of information or evidence in connection with any matter other than the criminal proceeding specified in the request without the prior consent of the requested country.537

Types of assistance under MACMATop

12.17MACMA lists specific types of assistance that New Zealand can provide and obtain. These are contained in the purpose section of the Act,538 and they are repeated and expanded upon in Part 2 of the Act, which governs outgoing requests, and Part 3 of the Act, which governs incoming requests.

12.18These specific types of assistance can be broadly classified in two categories:

  • Locating or identifying persons
  • Serving documents
  • Arranging attendance of a person (including a prisoner) in a foreign country
  • Evidence for a criminal proceeding
  • Obtaining and enforcing a general search warrant
  • Obtaining and enforcing a search warrant, production order, examination order, or interim foreign restraining order relating to the recovery of proceeds of crime
  • Registering and enforcing a foreign restraining order or foreign forfeiture order

12.19Although MACMA lists particular types of assistance that are available, the Act is not limited to the types of assistance specifically named in the Act. Section 4 expressly notes that the Act facilitates international assistance in criminal matters “including” specific types of assistance. Section 26, which governs the form of the request, is broad and provides that each request by a foreign country shall specify the nature of the assistance being sought.

12.20Requests for types of assistance that do not have their own specific provisions in MACMA are made and fulfilled under section 5 of the Act, which provides that:

Act not to limit other provision of assistance
Nothing in this Act—
(a) derogates from existing forms of co-operation (whether formal or informal) in respect of criminal matters between New Zealand and any other country; or
(b) prevents the development of other forms of such co-operation.

We understand that common requests that are made under section 5 include requests for information and requests to undertake interviews of voluntary witnesses.

Who is responsible for processing the request?Top

12.21MACMA designates the Attorney-General as the Central Authority for mutual legal assistance. Every request under the Act is to be “made by the Attorney-General”,539 and every request by a foreign country under the Act is to be made “to the Attorney-General” or “to a person authorised by the Attorney-General, in writing, to receive requests by foreign countries”.540

12.22The Act contains a number of safeguards that the Attorney-General must consider before agreeing to a request. In practice, the role is largely delegated to the Solicitor-General and carried out by Crown Law, the Office of the Solicitor-General.

What is the process for a request?Top

Outgoing requests

12.23Part 2 of MACMA provides that New Zealand can make a formal request for assistance to any country.541 Although the Act permits this, the country receiving the request may have its own requirements that New Zealand will need to satisfy.

12.24In most cases, outgoing requests originate from the New Zealand Police. Some requests also originate from government departments or agencies that investigate or prosecute criminal offences such as the Serious Fraud Office. The formal outgoing requests are prepared by counsel at Crown Law. Sometimes, the issuing of a formal request is preceded by an inquiry of the foreign country as to what the mutual assistance requirements of that country are or whether the foreign country would be likely to provide the assistance sought. Often, such inquiry is made on New Zealand’s behalf by the New Zealand embassy in the foreign country. Most outgoing requests are sent to the foreign country through diplomatic channels.

12.25The Act does not prescribe the form that requests to foreign countries should take. Again, this will largely be dependent on the requirements of the foreign country.

Incoming requests

12.26MACMA sets out the form that requests shall take.542 The request also requires substantial supporting documentation. MACMA provides significantly more detail regarding the process for requests made by foreign countries to New Zealand. This is because New Zealand has full control over such requests. Part 3 of the Act provides that an incoming request can be made by a prescribed foreign country, a convention country, or any foreign country on an ad hoc basis.543 In practice, there appears to be little difference in the way requests from these three types of countries are processed.

12.27Incoming requests sometimes come through diplomatic channels, via the Ministry of Foreign Affairs and Trade. Once the request arrives at Crown Law, it is assessed for compliance with MACMA. If further information is required from the foreign country making the request, counsel dealing with the file will contact the requesting country to obtain the necessary information. If the request complies with MACMA, the Deputy Solicitor-General may consent to the request. Once a request is consented to, Crown Law will instruct the New Zealand authority that is responsible for providing assistance. We understand that, in most cases, this will be the Police through the national Interpol office. Crown Law will continue to supervise the request, and in most cases, any documentation obtained pursuant to the request will be returned to Crown Law so that Crown Law can provide the material to the requesting country. Before forwarding the material to the foreign country, Crown Law will check the documentation to ensure it is duly authenticated and in order.

525C Nicholls, C Montgomery and J B Knowles The Law of Extradition and Mutual Assistance (2nd ed, Oxford University Press, Oxford, 2007) at [17.04].
526Interpol is the world’s largest international police organisation, with 190 member countries. Every Interpol member country has a national central bureau that links national police with the global network.
527This scheme will be discussed in more detail in ch 13.
528Mutual Assistance in Criminal Matters Bill 1992 (151–1).
529(30 July 1992) 527 NZPD 10180.
530(20 August 1992) 528 NZPD 10827.
531Mutual Assistance in Criminal Matters Act 1992, s 4.
532Boister, above n 521, at 197.
533Mutual Assistance in Criminal Matters Act 1992, s 2.
534David McClean “Mutual Assistance in Criminal Matters: The Commonwealth Initiative” (1998) 37 ICLQ 177 at 182.
535McClean, above n 534, at 182.
536Scheme Relating to Mutual Assistance in Criminal Matters within the Commonwealth including amendments made by Law Ministers in April 1990, November 2002, October 2005 and July 2011 [Harare Scheme] at [2(2)].
537Harare Scheme, above n 536, at [31(3)].
538Mutual Assistance in Criminal Matters Act 1992, s 4.
539Mutual Assistance in Criminal Matters Act 1992, s 8.
540Mutual Assistance in Criminal Matters Act 1992, s 25.
541Mutual Assistance in Criminal Matters Act 1992, s 7.
542Mutual Assistance in Criminal Matters Act 1992, s 26.
543Mutual Assistance in Criminal Matters Act 1992, ss 24 and 25A. Prescribed foreign countries are those countries identified by Regulations made under MACMA and currently are Australia; Fiji; Hong Kong Special Administrative Region of the People’s Republic of China; Niue; the Republic of Korea; the United Kingdom; and the United States. Convention countries are countries that are party to certain conventions as listed in the schedule to MACMA.