Chapter 21
Procedural concerns

Cost contribution

21.21Requests for mutual legal assistance from New Zealand might require significant resources, particularly where those requests require complex search and surveillance operations or where proceeds of crime are at issue.961

21.22MACMA does not determine which party to a request should pay. The customary approach, however, is that the costs of executing a request are borne by the requested country.

21.23MACMA allows the Attorney-General to refuse a request for assistance on the basis of excessive costs,962 after consulting with the requesting country’s central authority about conditions that would enable the request to be complied with.963 However, aside from this, there is no reference in the Act to negotiating the sharing of the costs of a request with the requesting country.

21.24It is our understanding that, despite the significant resources required in carrying out some requests, requests will rarely be declined on the basis of the excessive burden ground for refusal. To raise contribution to the cost of assistance may be seen as undiplomatic and inconsistent with international comity.

Harare Scheme

21.25Expense in providing assistance is recognised as an issue in the Harare Scheme, and cost contribution is provided for.964 Previously, a requested country could merely consult with the requesting country as to the terms and conditions for a request, and the requested country could refuse to comply with a request if there was no agreement.965 However, a revision of the Scheme in 2011 advanced previous attempts to grapple with the issue by providing:966
(1) The costs of executing a request shall be borne by the requested country, unless otherwise agreed by the countries.
(2) Where expenses of a substantial or extraordinary nature are or will be required to execute the request, the countries shall consult in advance to determine the manner in which the costs shall be borne.
(3) For the purposes of sub-paragraph (2), substantial or extraordinary expenses may include but are not limited to:
a) fees and reasonable expenses of expert witnesses;
b) the costs incurred pursuant to paragraph 15;
c) the costs of establishing and operating live video links or other audiovisual means, and the interpretation and transcription of such proceedings;
d) the costs of temporarily transferring persons in custody pursuant to paragraph 16;
e) the costs incurred for the interception of telecommunication; and
f) the costs incurred for conducting surveillance.

Option of a specific cost-contribution provisionTop

21.26MACMA could include a provision that specifically raises the option of cost contribution as a condition of agreeing to certain requests. This might apply only where a request would lead to expenses that met a threshold as to substantial or extraordinary expense. This may require the Attorney-General to consult to ascertain estimated costs.

21.27The Attorney-General would have the discretion to take into account matters such as whether the resources needed for the request are proportional to the level of seriousness of the offence. The closeness of the relationship with the requesting country and the demands of reciprocity should also influence the decision.

21.28Placing a statutory obligation on the Attorney-General to consult with the requesting country would alleviate some of the diplomatic difficulty and the hesitancy in raising the issue of costs with a requesting country. Similar to the urgency procedure, we believe a specific cost-contribution provision could be removed by treaty or convention rules.967


Q89 How should MACMA deal with the costs associated with undertaking requests on behalf of a foreign country?
Q90 Are there any other areas that are problematic or deficient in MACMA?

961See the discussion on costs in chs 16 and 17.
962Mutual Assistance in Criminal Matters Act 1992, s 27(2)(g).
963Mutual Assistance in Criminal Matters Act 1992, s 27(3).
964David McClean “Mutual Assistance in Criminal Matters: The Commonwealth Initiative” (1998) 37 ICLQ 177 at 183.
965Scheme 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 at [13].
966Harare Scheme, above n 957, at [7].
967See ch 13.