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


19.1In the preceding chapters, we have discussed the process for assistance to foreign countries in criminal investigations and prosecutions that takes place between governments, also known as mutual legal assistance. In this chapter, we examine the mutual assistance processes that take place between New Zealand regulatory agencies and their foreign counterparts or via an international network of national organisations such as Interpol.865

19.2“Mutual assistance” refers to assistance provided by one state to another generally, and it can include assistance in criminal investigations and prosecutions. The focus of some of the inter-agency regimes is not on criminal investigation and prosecution, but rather it is to facilitate regulatory compliance and enforcement. Albeit, compliance and enforcement can lead to criminal investigations and prosecutions.

19.3Following the terrorist activity on 11 September 2001 and the global financial crisis, there has been an increasing trend towards direct cross-border agency cooperation on all matters, including criminal matters.866 In their 2012 Annual Report, the Serious Fraud Office (SFO) reported that:867

[i]t is becoming apparent that there is a growing need to establish an international network of law enforcement agencies specifically devoted to financial crime prevention and detection.

These inter-agency regimes can pose a challenge, because it is sometimes unclear at what point these regimes should give way to the Mutual Assistance in Criminal Matters Act 1992 (MACMA) and, particularly, to the protections in MACMA.

19.4In this chapter, we consider how to manage the overlap that exists between MACMA and inter-agency regimes. We start by looking at the nature of inter-agency regimes, including the types of assistance that can be provided and the safeguards included. We then look at where MACMA and these regimes may overlap and the problems this creates, before proposing options for reform.

19.5Our current preference is to move with the international tide, recognising that mutual legal assistance can, and should, be provided through a wide variety of mechanisms.868 However, we consider that there needs to be centralised oversight across all inter-agency mutual assistance regimes.
865Note that, under pt 4, subpt 3 of the Evidence Act 2006, the courts also have an ability to obtain evidence for criminal proceedings, but this is outside the scope of this review.
866For example, see the International Organisation of Securities Commissions Multilateral Memorandum of Understanding Concerning Consultation and Cooperation and the Exchange of Information (May 2002). This Memorandum of Understanding was developed following the events of 11 September 2001.
867Serious Fraud Office Annual Report 2012 at 27.
868See the 2011 revised purpose statement contained in [1(1)] of the Scheme Relating to Mutual Assistance in Criminal Matters within the Commonwealth including amendments made by Law Ministers in April 1990, November 2002, October 2005 and July 2011 [Harare Scheme].