Chapter 15
Grounds for refusing assistance
Possible further grounds for refusal
Torture
15.48There is no ground for refusal of assistance in MACMA where the assistance may result in a person being in danger of being subjected to torture. MACMA does, however, allow the Attorney-General to refuse a request for assistance where provision of the assistance would be likely to prejudice the safety of somebody and where the request would prejudice the sovereignty and national interests of New Zealand. This means that, where torture is in issue, the Attorney-General is likely to find that the request can be refused. However, the omission of an explicit torture ground does seem somewhat anomalous, especially given that it is a mandatory ground for refusing extradition under the Extradition Act.
15.49The difference between the mutual legal assistance legislation and the extradition legislation may have arisen because the Convention against Torture explicitly includes an obligation not to extradite where there are substantial grounds for believing a person would be in danger of torture. The Convention does not mention mutual legal assistance. As with the death penalty, it could be argued that there is not as close a relationship between the provision of mutual assistance in a criminal matter and the risk of a person being subjected to torture as there is with extradition. In extradition, the risk is that a person within New Zealand’s jurisdiction will be sent to a country where torture may be a feature of the justice system.
15.50Yet, the prohibition against torture under the Convention and in customary international law has such significance now that it is difficult to justify the provision of assistance where torture is a risk. The inclusion of torture as a ground of refusal under MACMA will enhance and clarify New Zealand’s position against torture. It would be consistent with New Zealand’s international obligations under the Convention. Australia has recently amended its mutual legal assistance legislation to include a mandatory ground for refusing assistance where “there are substantial grounds for believing that, if the request was granted, the person would be in danger of being subjected to torture”.
Question
Q56 Should MACMA include a mandatory ground for refusing a mutual assistance request where there are substantial grounds for believing that a person would be in danger of being subjected to torture if the assistance was given?
SpecialityTop
15.51Once information is transferred to the requesting country, how it is used is largely dependent on the requesting country’s domestic law. New Zealand needs to be confident that it is only going to be used for the purpose stated in the request.
15.52Section 23 of MACMA, which governs outgoing requests, stipulates that information obtained by New Zealand must be used for the purpose stated in the request, unless permission is given for it to be used for another purpose. However, there is no similar statutory rule governing incoming requests providing that the Attorney-General needs some assurance from the requesting country that the material to be provided will be used solely for the requested purpose.
15.53Such a provision is not common in overseas legislation. Despite this, the United Kingdom Home Office Guidelines on mutual legal assistance provide that:
Where a requesting authority wishes to use evidence obtained from the UK for a different purpose to that stated in the original [mutual legal assistance] request, or to share the evidence with a third country, a formal request to do so must be made in writing by the original requesting state to the relevant central authority in the UK unless otherwise stated in treaty. The additional request must contain the following information:
- The central authority’s reference number for the original request;
- What evidence is to be used/shared;
- How this evidence will be used/shared;
- Why this evidence is needed in this investigation / court proceedings.
Given that a country requesting the United Kingdom’s assistance must seek permission before using material for a different purpose, there is an implied suggestion that the initial request would not be granted if the requesting country was free to use the material for any purpose.
15.54The United Nations Model Treaty on Mutual Assistance has a use for purpose provision, which is discussed in the commentary on the Model Treaty. The commentary notes that the rule is analogous to the concept of speciality in extradition law but does not explicitly state the need for this sort of provision beyond saying that it “ensures that information and evidence provided is used solely for the purpose specified in the request”.
15.55The UN Model Law on Mutual Assistance contains two “use for purpose” or speciality provisions. The first suggests:
Upon request of the foreign State, any evidentiary material provided to (name of State) as a result of a request for assistance under this Act:
(a) may not be used for any purpose other than the investigation, prosecution or judicial proceeding in respect of which the request for assistance was made; and
(b) is inadmissible as evidence in any proceedings other than the proceedings in respect of which it was obtained,
unless the central authority of (name of State) has approved its use for those other purposes [or the material has been made public in the normal course of the proceedings for which it was provided].
The alternative provides that:
The central authority of (name of State) shall have the power to enforce conditions or limitations on use of evidence obtained pursuant to a request for assistance imposed by the foreign State and accepted by (name of State). The courts of (name of State) shall have the power to issue an order accordingly.
15.56This alternative provision suggests that the requested state might impose conditions before granting a request, specifically that the requested state is assured that material provided will be used only for the requested purpose. The Model Law suggests that the assurance can either be made in a general way through a provision like section 23 or on an ad hoc basis through this alternative provision.
Question
Q57 Should MACMA include a ground that assistance may be refused if, in the opinion of the Attorney-General, there is no assurance that the material to be provided to the requesting country will be solely used for the requested purpose?
General discretionTop
15.57Australia’s mutual assistance statute includes a general discretion for the Attorney-General to refuse a request if “it is appropriate, in all the circumstances of the case, that the assistance should not be granted”. This is something that does not appear in the New Zealand Act and seems to be uncommon in mutual legal assistance legislation and international schemes. The advantage of such broad discretion in MACMA is that it would provide a way of declining any request that is deemed inappropriate, whether or not the Attorney-General can fit the reason for the refusal within defined grounds. The disadvantage is that such a ground would be seen as reducing New Zealand’s commitment to mutual assistance in criminal matters internationally.
Question
Q58 Should MACMA include a general discretion to refuse to provide assistance if it is appropriate in all the circumstances that the assistance should not be granted?
