17.106What is missing, however, is certainty and simplicity. There are no obvious mechanisms of redress for the subjects of these investigative actions. There is no pre-existing guidance for the Attorney-General, who may be routinely called upon to create appropriate processes for dealing with seized material on a case-by-case basis. There is also no clarity for the general public as to how the costs of this potentially expensive assistance will be met. These are complex issues, and it would be difficult for the Central Authority to resolve such issues in situations where the mutual legal assistance request needs to be processed urgently for operational reasons.
17.107In light of these observations, we are of the view that it would be better if the legislation provided greater guidance on:
This guidance should also address the critical question of what matters need to be resolved prior to sending the material overseas.
17.108To mirror the Search and Surveillance Act, MACMA could be amended to include detailed provisions governing these matters within the Act or in regulations. Our preferred option would be to amend MACMA to make the provision of search and surveillance assistance conditional on New Zealand and the foreign country reaching prior agreement on a list of specified matters. Such an agreement could be reached on a case-by-case basis or generically in the form of a treaty or a memorandum of understanding. The latter two options would save time and would allow New Zealand to screen countries in advance. As an additional time-saving measure, the Central Authority could maintain guidelines to set out its preferred approach.
17.109In the absence of any agreement, we consider that the Attorney-General should refuse the request. We suggest also amending MACMA to state that the Attorney-General should not have to provide any reasons to the foreign country in the event of a refusal. This would give the Central Authority room to refuse if, for example, it was not satisfied with assurances that the foreign country had given. This approach would be consistent with the Harare Scheme, which contains an optional provision to that effect.
17.110In our opinion, the preferred option would strike the appropriate balance between international law enforcement needs and New Zealand’s commitment to protecting human rights values.
Question
Q75 Should MACMA be amended to make the provision of search and surveillance assistance conditional on New Zealand and the foreign country reaching prior agreement on a list of specified matters?
