Chapter 15
Grounds for refusing assistance
Discretionary grounds
Dual criminality
15.25Section 27(2)(a) provides that assistance may be refused if, in the opinion of the Attorney-General:
the request relates to the prosecution or punishment of a person in respect of conduct that, if it had occurred in New Zealand, would not have constituted an offence against New Zealand law;
15.26This provision reflects the principle that assistance should be given only where the offence to which the assistance relates is paralleled by an offence in New Zealand. This principle has become less significant over time. When the Harare Scheme was first drafted, dual criminality was a major issue and was included as a discretionary ground for refusing assistance. However, more recent international agreements have not strictly followed this position. The 2011 version of the Harare Scheme omits the dual criminality ground and instead encourages each country to render assistance in the absence of dual criminality.
15.27It is appropriate to give the decision maker discretion, as there may be cases where, notwithstanding the failure to meet the dual criminality requirement, it is right to assist because the offending is of a nature that New Zealand would want to prevent and see prosecuted. Furthermore, there are conceivably cases where the offending to which the request relates is not of a type that New Zealand would consider criminal, and the dual criminality ground allows these requests to be declined.
15.28Section 27(2)(b) provides that assistance may be refused if, in the opinion of the Attorney-General:
the request relates to the prosecution or punishment of a person in respect of conduct that occurred, or is alleged to have occurred, outside the foreign country and similar conduct occurring outside New Zealand in similar circumstances would not have constituted an offence against New Zealand law;
15.29The extraterritoriality ground comes into play as a way of challenging the requesting country’s jurisdiction over the offence because New Zealand would not consider that it has jurisdiction over such an offence due to the location of the offending. This ground allows the decision maker to place priority on upholding sovereignty over cooperation to combat crime. This has been the traditional common law approach.
15.30When mutual legal assistance was reviewed in Australia in 2006, the option of removing this ground was considered, and in 2011, it was repealed. The explanatory memorandum to the amending Bill stated:
Many countries exercise extraterritorial jurisdiction for criminal offences and Australia now asserts extraterritorial jurisdictions for a number of offences, such as terrorism, war crimes, crimes against humanity, genocide and child sex tourism. As a result, the extraterritoriality ground of refusal in paragraph 8(2)(b) is rarely used and will be repealed from the [Act].
15.31It was noted, however, that this would not affect the protections provided by the Act, because it would still be possible to refuse a request if the dual criminality ground applied and because the Australian Attorney-General also retains a broad general discretion to refuse a request. We explore a general discretion option below.
Question
Q53 Should the extraterritoriality ground for refusing a request be retained in MACMA?
Death penaltyTop
15.32Section 27(2)(ca) provides that assistance may be refused if, in the opinion of the Attorney-General:
the request relates to the prosecution or punishment of a person for an offence in respect of which the person may be or has been sentenced to death by the appropriate authority in that requesting country, and that requesting country is unable to sufficiently assure the Attorney-General that—
(i) the person will not be sentenced to death; or
(ii) if that sentence is or has been imposed, it will not be carried out;
15.33As with the death penalty ground in the Extradition Act, this ground for refusal reflects New Zealand’s own abolition of the death penalty and its commitment to this internationally.
15.34In Part 1 of this issues paper, we raised the option of whether the death penalty should become a mandatory ground for refusal whereby extradition is prevented unless there are appropriate assurances that the death penalty will not be imposed or, if imposed, will not be carried out.
15.35The possibility of making the death penalty a mandatory ground for refusal could be considered in relation to mutual legal assistance. On the one hand, the assistance requested may be removed from the actual prosecution and punishment of an offence. Also, the person who is the subject of the criminal investigation may not be within New Zealand’s jurisdiction. However, it may be objectionable for New Zealand to contribute to a criminal investigation, even at an early stage, where there is any chance of the death penalty being invoked. Arguably, a commitment to the prohibition of the death penalty brings with it an obligation on abolitionist states to refrain from assisting the use of the death penalty by those states that retain it. This is an emerging obligation in international human rights law.
15.36There has been considerable debate on this issue in Australia. Several cases in the last decade, involving both the statutory mutual legal assistance regime and police-to-police cooperation, have highlighted the risks of Australian agencies assisting countries in drug crime investigations. Australia’s Mutual Assistance in Criminal Matters Act 1987 retains discretion for the Attorney-General to nevertheless provide assistance, despite the possibility of the death penalty being imposed on the person whose suspected criminal activity is the subject of the mutual legal assistance request. This applies where “special circumstances” are present. The term “special circumstances” is not defined in the legislation, but it seems that a limited interpretation was intended. Examples provided include where the assistance being sought relates to exculpatory evidence or where the requesting country has provided an undertaking that the death penalty will not be imposed or carried out. Where there has been no charge or conviction on a capital offence, the Act provides that the Attorney-General may refuse the request if the death penalty may be imposed and “after taking into consideration the interests of international criminal cooperation, is of the opinion that in the circumstances of the case the request should not be granted”.
15.37Despite calls for change prior to and during the review of the legislation, the 2011 Amendment Act did not remove the Attorney-General’s discretion. The Act did, however, expand application of the provision so that it applies not only where a person has been charged with or convicted of a capital offence, but where a person has been arrested or detained on suspicion of having committed such an offence.
15.38The provision in New Zealand’s Act is less discretionary than Australia’s. The Attorney-General may only refuse assistance where the requesting country is unable to provide sufficient assurances that the death penalty will not be applied. Section 27(2)(ca), therefore, appears to place New Zealand in line with international best practice to refrain from assisting the use of the death penalty.
Excessive burden or trivialityTop
15.39Section 27(2)(g) provides that assistance may be refused if, in the opinion of the Attorney-General:
the provision of assistance—
(i) would impose an excessive burden on the resources of New Zealand; or
(ii) relates to a matter that is trivial in nature;
15.40This ground of refusal provides the New Zealand Government with a level of control while meeting its mutual legal assistance obligations. New Zealand should not be obligated to provide assistance that goes beyond what is reasonable. The provision is qualified by the requirement that the Attorney-General must first consult with the central authority of the requesting country to try to agree on conditions that would allow the request to be granted before the request can be refused on this ground.
15.41Both the United Nations Model Treaty on Mutual Assistance in Criminal Matters and the Harare Scheme include provisions enabling parties in some circumstances to consult and agree as to how costs should be borne. While including excessive burden as a ground for refusal is not problematic, we consider it would be worthwhile to develop a provision that specifically enables cost to be the subject of consultation and conditions between the countries. This option is discussed in Chapter 20.
15.42The triviality basis of section 27(2)(g) reflects the principle that there should be a threshold of seriousness to warrant New Zealand’s involvement in a criminal investigation in another country. It was added to MACMA in 2009 in line with developments internationally, as evidenced by its addition to the Harare Scheme in 2011. The Harare Scheme contains a more detailed triviality ground that provides reciprocity as the reason justifying refusal to assist:
By reason of the trivial nature of the alleged offending or the low value of the likely penalty or any property likely to be forfeited or confiscated, the requested country would not have made a similar request to another country in connection with a like criminal matter arising in the requested country.
Question
Q54 Should the ground for refusing a request based on triviality be rephrased in MACMA to contain some additional detail on what might constitute triviality?
15.43Section 27(2)(h) provides that assistance may be refused if, in the opinion of the Attorney-General:
the request does not comply with the requirements of section 26 [relating to the correct form of the request].
15.44A request will not be refused solely on this ground unless the Attorney-General has requested further information from the requesting country, which the requesting country has failed or refused to provide, and the request may be granted even though its form does not comply with the Act’s requirements.
15.45This ground is primarily a basis on which New Zealand can request further information where a request is inadequate. It is suggested that this provision does not fit well within the grounds for refusing assistance, as it does not relate to a problem with the nature or circumstances of the assistance requested. It may be better to provide the ability to request further information where a request is inadequate, and to not proceed with a request that continues to fail to meet the correct form, in a separate provision.
Question
Q55 Should a request in the incorrect form be a ground for refusal in MACMA?
Other discretionary groundsTop
15.46Several of the grounds in section 27(2) have in common the rationale of upholding New Zealand’s sovereignty and allowing New Zealand’s legal values to override a request for assistance from a foreign country. These include where the request:
- relates to the prosecution or punishment of an offence that could no longer be prosecuted if it occurred in New Zealand because of the lapse of time or for any other reason;
- is for a prisoner to attend another country to provide evidence or assistance, and the granting of the request:
- would not be in the public interest; or
- would not be in the interests of the person to whom the request relates;
- could prejudice a criminal investigation or proceeding in New Zealand; and
- could prejudice the safety of any person (whether within or outside of New Zealand).
15.47Because these grounds are discretionary, a decision maker may find that, despite one of the grounds applying, the request still has merit. Discretionary grounds are a matter of balancing interests for the Attorney-General. These grounds reflect fundamental values and rights that New Zealand thinks ought to be protected in all requests.
