Contents

Chapter 14
The Central Authority

Who is best placed to undertake this function?

14.14We understand that, in practice, the powers conferred on the Attorney-General are delegated to the Solicitor-General. Formal requests for mutual assistance are received and prepared by the Crown Law Office. Counsel in the Criminal Team prepare outgoing requests and assess incoming requests (usually in consultation with the originating agency) and then refer the requests to the Deputy Solicitor-General (Criminal) who, on delegated authority from the Solicitor-General, consents to the request being actioned or sent.

14.15The diagram prepared by Crown Law, and reproduced below, sets out how this works:614
The Central Authority Diagram

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14.16Delegation between these three actors is permitted by the Constitution Act 1986. The Solicitor-General may perform the functions of the Attorney-General615 and may in turn delegate powers to a Deputy Solicitor-General with the Attorney-General’s written consent.616 The fact that a Deputy Solicitor-General performs a function is, in the absence of proof to the contrary, sufficient evidence of his or her authority to do so.617
14.17The appropriateness of delegation in the MACMA context was recently considered by the High Court in Commissioner of Police v Dotcom.618 Section 54(2) of MACMA provides that the Attorney-General may authorise the Commissioner of Police to apply to the High Court to register a foreign restraining order (FRO). In this case, the Deputy Solicitor-General authorised the Commissioner of Police to apply to register the FRO. The Respondent argued that the Attorney-General could not delegate this function because section 25 of MACMA establishes a regime governing decision making that cannot be circumvented by recourse to the Constitution Act’s general delegation provisions.619 This was rejected by the Court, which held that section 25 relates to the receipt of requests and does not require or authorise the Attorney-General or his or her delegate to do anything in relation to a request.620
14.18The main policy argument against permitting the delegation was that the Attorney-General’s function is pivotal as a safeguard against what could amount to arbitrary and oppressive conduct arising from the registration of an FRO made overseas on an ex parte basis.621 In addition, it was argued that the grounds for refusal under section 27 of MACMA are highly political and should be considered by the Attorney-General.622
14.19However, Potter J accepted that the delegation based on the Constitution Act provisions was appropriate.623 The rationale for authorisation being issued by the Deputy Solicitor-General, rather than the Attorney-General, is found in a constitutional convention. The convention provides that, except in exceptional cases,624 it is not appropriate for the Attorney-General to exercise statutory powers in criminal matters but rather to leave decisions regarding the exercise of these powers to the Solicitor-General or delegate.625 Potter J held that to require the Attorney-General to have direct and personal involvement would breach convention and may give the detrimental appearance of political influence.626 Further, prohibiting this delegation would require the Attorney-General’s involvement in numerous other types of requests made under Part 3, an untenable administrative burden.627 The Court noted that:628

It is not credible to suggest that the Attorney-General should, or for that matter could, be personally involved in relation to such a range of mundane functions. Further, to do so would be inconsistent with his constitutional role in the justice system.

Not only is it an administrative burden for the Attorney-General but it is also inconsistent with the convention for the Attorney-General to exercise this power.

14.20In light of the constitutional convention preventing the Attorney-General from exercising this statutory power, alongside the following points, we consider whether the Attorney-General is the right person for the Central Authority role.

14.21Usually, an individual rather than an agency is named in statute in such a role, and as we noted in Part 1 of this issues paper, there are two options for who should be named as the Central Authority: the Attorney-General or the Solicitor-General.

14.22The Attorney-General is both a political and non-political actor, as he or she is both a Cabinet Minister and the senior law officer of the Crown. In the law officer role, the Attorney-General is a non-political actor responsible for the administration of the criminal law. In exercising this role, the Attorney-General provides advice to Cabinet and exercises statutory decision-making responsibilities, particularly in relation to the criminal justice system. The Attorney-General has the obligation to act on these matters independently and free from political considerations.

14.23Most of the Attorney-General’s functions are delegated to the Solicitor-General, who, as well as holding office as the junior law officer of the Crown, is the Chief Executive of the Crown Law Office. As noted above, the Solicitor-General can, by statute, exercise almost all of the statutory functions of the Attorney-General.629 This is particularly important in allowing the Solicitor-General to assume responsibility for functions that should be undertaken independently of the political process, most notably in the criminal law.

14.24The Attorney-General would be the most appropriate person to act as the Central Authority if it is considered that the Central Authority’s role should reside in an executive decision maker who is accountable to Cabinet. The Attorney-General would be able to provide senior oversight and a political viewpoint where necessary. If it is considered that the process be completely non-political, the Solicitor-General is the better choice.

14.25In Part 1 of this issues paper, we have suggested that there should be a Central Authority that is formally charged with the oversight of extradition in New Zealand. We discussed whether the Central Authority should be the Solicitor-General or the Attorney-General, to further emphasise that decisions as to how an extradition proceeds are not to be political ones. Some MACMA requests will require a balancing between the Government’s desire to cooperate and the reality that cooperation will be relatively resource intensive and take away from resources for domestic law enforcement. This may be felt to be political and would suggest that the Attorney-General may be best placed in the role as the Central Authority for MACMA requests.

14.26However, it would be helpful to align the Central Authority for MACMA with the proposed central authority for extradition. This would allow a coordinated approach to the assistance New Zealand provides to foreign countries in criminal matters, which is particularly beneficial where a foreign country’s request involves both extradition and MACMA proceedings. On balance, if the Solicitor-General is given formal responsibility for the progress of extradition proceedings, in our view, the Solicitor-General should also have formal responsibility for MACMA requests.

Question

Q47 Who is the appropriate person to be designated as the Central Authority under MACMA?

614Crown Law “Central Authorities” <www.crownlaw.govt.nz>.
615Constitution Act 1986, s 9A.
616Constitution Act 1986, s 9C(1).
617Constitution Act 1986, s 9C(5).
618Commissioner of Police v Dotcom [2012] NZHC 634.
619At [31(e)].
620At [35].
621At [31(d)].
622At [31(d)].
623At [68]–[69].
624The only example in recent memory is the decision to stay proceedings in 1991 arising from the sinking of the Rainbow Warrior, a case that raised issues of New Zealand’s diplomatic and economic relationships with other countries: Commissioner of Police v Dotcom, above n 618, at n 22.
625Commissioner of Police v Dotcom, above n 618, at [55]. The existence and importance of this convention has been discussed in, for example, John McGrath “Principles for Sharing Law Official Power – the Role of the New Zealand Solicitor-General” (1998) 18 NZULR 197; and Law Commission Criminal Prosecution Report (NZLC R66, 2000) at [36]–[38].
626At [66].
627At [67]. The Court gave examples: “These include assistance in locating or identifying persons believed to be in New Zealand, obtaining evidence in New Zealand, obtaining attendance of persons to give evidence or assistance in relation to criminal matters in a foreign country, and attendances of prisoners in a foreign country.”
628At [67].
629Constitution Act 1986, s 9A.