Chapter 19
Managing the overlap with inter-agency mutual assistance regimes

Interaction between MACMA and inter-agency regimes

19.16MACMA supports inter-agency regimes by stipulating in section 5 that the Act does not derogate from existing forms of cooperation or prevent the development of future forms of cooperation. Section 5 was based on a similar provision in the Harare Scheme to recognise “existing forms of cooperation” such as Interpol.885 The drafters of the Harare Scheme also thought it important to allow for future cooperation arrangements between governments and enforcement agencies to be developed. They noted that, in due course, this would be critical in matters such as securities regulation or drug trafficking.886

19.17There are certain types of mutual legal assistance that can only be provided under MACMA. This includes assistance that is highly intrusive, such as the taking of evidence for a criminal proceeding and the restraint and forfeiture of proceeds of crime. However, some other less intrusive types of mutual legal assistance under MACMA can also be accessed directly via an inter-agency regime. This includes:

19.18The potential for some overlap between MACMA and an inter-agency regime is expressly acknowledged in some of the inter-agency regimes. Both the FMA and the Commerce Commission’s overseas information-sharing regimes contain a legislative provision requiring the agency to consider whether a request should more appropriately be dealt with under MACMA.887 However, we think some clarification around this provision is required.

19.19Sometimes, there is uncertainty among foreign and domestic agencies as to whether they should direct a request for foreign assistance to the Central Authority, when a direct request to an agency could achieve the same result. In such “overlap” situations, the use of the Central Authority may be slower. An inter-agency regime is likely to be favoured, because it is a more direct process and it avoids some of the formalities and key safeguards in MACMA. However, avoiding the safeguards and formalities in MACMA could be particularly problematic because of the lack of some fundamental safeguards across all inter-agency regimes.

885Scheme Relating to Mutual Legal Assistance in Criminal Matters Within the Commonwealth including amendments made by Law Ministers in April 1990, November 2002 and October 2005 [Harare Scheme] at [1(1)]. This statement was amended slightly and moved to [1(3)] in 2011 amendments to the Harare Scheme. The Harare Scheme is discussed in more detail in ch 13.
886See David McClean “Scheme Relating to Mutual Assistance in Criminal Matters within the Commonwealth with a Detailed Commentary” in William Gilmore (ed) Mutual Assistance in Criminal and Business Regulatory Matters (Cambridge University Press, Cambridge, 1995) 112 at 113.
887Financial Markets Authority Act 2011, s 32(2)(f); Commerce Act 1986, s 99I(5)(c); Fair Trading Act 1986, s 48I(5)(c); Credit Contracts and Consumer Finance Act 2003, s 113(ea) (incorporates s 99I(5)(c) of the Commerce Act); and Telecommunications Act 2001, s 15(ha) (incorporates s 99I(5)(c) of the Commerce Act).