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

Options for reform

19.20The above discussion highlights that there is a need for reform in this area. The overlap that exists between MACMA and inter-agency regimes is not resolved by any clear rule directing when each regime applies. Further, the lack of some common safeguards and consistent approach across all inter-agency regimes is a cause for concern.

International best practice

19.21There has been an international move towards recognising that foreign assistance can, and should, be provided through a wide variety of mechanisms and that countries should authorise their competent authorities to use the most efficient means to cooperate.888 This has been reflected in the recent revision to the purpose of the Harare Scheme, which is now to encourage and enable countries to cooperate with each other to the widest extent possible for the purposes of investigating and prosecuting crime.889

Managing the overlapTop

19.22We consider that there should be a clear statutory rule to the effect that, if the assistance can be provided under an inter-agency mutual assistance regime, that regime should be used.

19.23MACMA would still be the key tool in facilitating mutual legal assistance where there is either no inter-agency regime or the relevant regime is not comprehensive.

19.24One of the guiding principles of this review is that New Zealand must ensure that it has sufficient oversight and control of any mutual assistance it provides and that it balances law enforcement needs and human rights values. In accordance with this principle, our preliminary view is that MACMA should also continue to be the primary tool for foreign countries accessing the Police’s coercive powers. This is on the basis that the Police have more widespread and intrusive domestic powers than any regulatory agency and that the monitoring of assistance provided by the Police is therefore necessary. While we accept that other regulators might, in appropriate cases, be able to use their domestic search powers and share information obtained directly with their foreign counterpart, the Police can be distinguished from other regulators because they hold a certain elevated position as the heavy hand of the State.

19.25We are aware that our proposal may not fit easily with the proposed information-sharing provisions in the Organised Crime and Anti-corruption Bill. This Bill, once enacted, would allow the Police to share information directly with its international counterparts.

19.26The provisions of the Bill leave open the possibility that the Police could obtain a search warrant and collect material under that search for domestic purposes, and the information obtained under that search could then be shared with a foreign country under a police information-sharing agreement. Despite this material being lawfully obtained for domestic purposes, the sharing of this material in this direct way could sidestep the fundamental gatekeeping role of MACMA for foreign requests.

19.27While do not want to interfere with legitimate Police practices, we do need to ensure that there is sufficient oversight when foreign countries request material for criminal investigations and prosecutions that have been obtained via coercive measures. One potential solution is that the information agreements to be concluded with other jurisdictions under the Bill should include safeguards similar to those found in MACMA.

19.28The above issue relates to an issue in Chapter 17 regarding the provision of material lawfully obtained on behalf of one country that is then requested by another country. We note that MACMA has a double gatekeeping function for a search warrant or another coercive orders in that it requires both agreement of the Attorney-General and successful application to the court. While it may be inefficient to make another application to the court, we question whether, in the case of coercive powers, this part of the gatekeeping function is still necessary.

Centralised oversightTop

19.29The key risk with the above proposal – that inter-agency regimes should be used in the first instance for accessing mutual legal assistance – is that the request would not be subject to review by the Central Authority890 and the safeguards in MACMA.891

19.30In our view, there should be some central body with oversight across all inter-agency mutual assistance regimes. An oversight body could ensure inter-agency regimes reflect some common principles/requirements and that there is a consistent approach across all government, to the extent that is possible. This body would not be involved in the transmission of requests.

Option one

19.31We have considered who should perform this oversight role. One option is the Central Authority. With existing expertise in mutual legal assistance, the Central Authority would be well placed to take on this additional oversight role for all mutual assistance regimes. This would avoid having a fractured mutual assistance system and would fit nicely if, as we have proposed in Part 1 of this issues paper, the Central Authority was also responsible for extradition requests. We acknowledge that this would require an increase in resourcing of the Central Authority, but any oversight role will require some funding for this function. The obvious problem we foresee is that the Central Authority is established under MACMA and is responsible for mutual assistance in criminal matters only. As discussed above, inter-agency regimes are for both regulatory and criminal matters.

Option two

19.32A second option is to give the oversight role to the Privacy Commissioner. The Privacy Commissioner already fulfils a watchdog role over domestic information-sharing agreements.892 This is a relatively new role that was inserted into the Privacy Act in February 2013.893 Agencies proposing to enter into a domestic information-sharing agreement must consult with the Privacy Commissioner.894 Once an agreement has been approved by the Governor-General by Order in Council,895 the Privacy Commissioner can publish a report on any privacy issues arising out of it.896

Option three

19.33The area of mutual assistance and mutual legal assistance is growing at a rapid pace. A third option is to create a new Central Authority agency that would deal solely to all mutual assistance matters, including mutual legal assistance. The new agency would replace the current Central Authority, which only deals with MACMA requests. The agency would be responsible for the transmission of MACMA requests and have an oversight role of inter-agency mutual assistance regimes.


Q82 What is the correct relationship between inter-agency mutual assistance regimes and MACMA?
Q83 Given the types of assistance that can be undertaken under inter-agency mutual assistance agreements, how do we best ensure that there is sufficient oversight when foreign countries request material that has been obtained via coercive means?

888Financial Action Task Force International Standards on Combating Money Laundering and the Financing of Terrorism & Proliferation (February 2012) at recommendation 40.
889Harare Scheme, above n 885, at [1(1)].
890The main advantage of having a Central Authority is to build up expertise in undertaking rigorous screening of foreign assistance requests. This is especially important if the requests are relatively few. It also ensures the request is reviewed by a party that is objective. Conceivably, an agency could respond to a request with less objectivity because it may be focused solely on reciprocity, that is, whether it will get the same type of assistance back. This main disadvantage with having a Central Authority review all requests for assistance, which would include requests that relate to non-criminal matters, is cost. It is difficult to see how these additional resources for a Central Authority can be justified. It appears to us that, provided there are appropriate safeguards in place under individual inter-agency regimes, it is not necessary for a Central Authority to receive and manage all requests.
891These are discussed in chs 14 and 15.
892Privacy Act 1993, pt 9A.
893Inserted by s 8 of the Privacy Amendment Act 2013.
894Privacy Act 1993, s 96O.
895Privacy Act 1993, s 96J.
896Privacy Act 1993, s 96P.