Chapter 14
The Central Authority

Role of the Central Authority

14.5As we noted in Chapter 12, one of the core functions of MACMA is to provide a gateway for foreign countries to access the tools New Zealand uses when investigating and prosecuting criminal activity. Importantly, this gateway function is coupled with a gatekeeping role, which is given to the Central Authority. The Central Authority is responsible for ensuring foreign access to New Zealand tools is only provided in the appropriate circumstances and that the rights of individuals affected by those requests are sufficiently protected. This is facilitated through a number of mechanisms in the Act that function as checks on whether providing the assistance is desirable and acceptable for New Zealand.

Form requirements

14.6MACMA requires that all incoming requests must specify:604
14.7The incoming request also requires substantial supporting documentation. Incoming requests are to be accompanied by:605

Although the amount of supporting documentation may appear administratively burdensome, it tends not to create delay in application and processing times because compliance is relatively easy. For example, a sentence in a covering letter is all that is needed to satisfy the “certificate” requirement.606
14.8This material assists the Attorney-General in determining whether New Zealand may be able to provide the requested assistance to the foreign country. Failure to comply with form requirements will not necessarily preclude the request from being accepted, as the Attorney-General has discretion to grant the request despite non-compliance in this area.607

Checks on specific types of assistance soughtTop

14.9While MACMA applies broadly in respect of criminal matters, both the stage of the criminal matter and the penalty level of the offence as provided in the requested country may be relevant in whether New Zealand is able to provide certain types of assistance. For example, while New Zealand can assist in locating or identifying persons or serving documents, in respect of a criminal investigation or proceeding in the foreign country,608 it can only assist in organising for the attendance of a prisoner in a foreign country in respect of a criminal proceeding that has been instituted in the foreign country or where there is a criminal investigation of a foreign serious offence.609 Similarly, New Zealand can only assist in obtaining a search warrant relating to evidentiary material where the offence to which the investigation or proceeding relates is punishable in the foreign country by two years’ imprisonment or more.610

14.10Some types of assistance in MACMA are more intrusive and may impinge on the rights of individuals more greatly. By restricting the availability of some types of assistance to the advanced stages of a prosecution or to more serious offending, there is an additional gatekeeping function operating.

Grounds for refusing a requestTop

14.11As part of the Attorney-General’s decision on whether to grant the requested assistance to the foreign country, MACMA sets out grounds under which the request for assistance must be refused (“mandatory” grounds) and grounds under which the request may be refused (“discretionary” grounds).611 Whether any such grounds exist is to be determined “in the opinion of the Attorney-General”.

14.12The following table summarises the mandatory and discretionary grounds:

Political offence Dual criminality
Discrimination Extraterritoriality
Double jeopardy Offence could not be prosecuted in New Zealand because of lapse of time or other reason
Military offence Death penalty
Prejudice to sovereignty, security, or national interests Prisoner requested to give evidence but would not be in public interest or prisoner’s interests
Person requested to give evidence does not consent to travel to the foreign country Prejudice to a criminal investigation in New Zealand
Assistance unlawful or not authorised under MACMA Prejudice to the safety of any person
  Excessive burden on resources or triviality
  Request not in correct form
These grounds act as a check in relation to whether providing the assistance is desirable and acceptable for New Zealand.612
14.13The Central Authority can also impose conditions on providing the assistance.613
604Mutual Assistance in Criminal Matters Act 1992, s 26.
605Mutual Assistance in Criminal Matters Act 1992, s 27.
606There is no set form for this certificate. However, Crown Law advises that a formal covering letter from the central authority that confirms that the request came from the central authority and certifies that the request is made in respect of a criminal investigation or proceeding within the meaning of the Act would be appropriate.
607Mutual Assistance in Criminal Matters Act 1992, s 27(5).
608Mutual Assistance in Criminal Matters Act 1992, ss 30 and 51−52.
609Mutual Assistance in Criminal Matters Act 1992, s 38.
610Mutual Assistance in Criminal Matters Act 1992, s 43.
611Mutual Assistance in Criminal Matters Act 1992, s 38.
612Each ground is discussed in ch 15 in detail.
613Mutual Assistance in Criminal Matters Act 1992, s 29.