Chapter 21
Procedural concerns
Urgent requests
21.12While MACMA does not include a process for dealing with urgent requests, it does have some specific provisions that may assist:
- Firstly, the Act allows New Zealand to assist in obtaining an interim foreign restraining order. This order is not available domestically and is specially provided for because of the potential time delay in getting a foreign order ready for registration.
- Secondly, an urgent procedure may exist in a bilateral mutual legal assistance treaty and may be enforced if the request is made as a prescribed foreign country pursuant to that treaty. For example, New Zealand’s treaty with Hong Kong permits urgent requests to be made orally and confirmed in writing within 10 days. The MACMA regulations allow this to be incorporated for requests made by Hong Kong.
21.13MACMA also specifies that, in making a request to New Zealand, the foreign country should provide details of the period within which it wishes the request to be complied with.
Other countries
21.14A general urgent request procedure does not appear to be a common feature in mutual legal assistance legislation. For example, neither the legislation in Australia nor in the United Kingdom contains such a process. Published guidelines on the matter are more common. Australia’s guidelines state:
The request should expressly identify any time period within which the assistance is sought, and the reason for this time constraint (such as a pending court proceeding or a time-sensitive investigation). If there is a statutory limitation period on the prosecution of the offence, please provide the relevant dates.
21.15Similarly, guidelines recently published in the United Kingdom stipulate that its central authority will aim to respond to a mutual legal assistance request within 30 days of receipt, with the caveat that, “depending on the nature of the request, this may not always be possible”. The guidance also notes that any reasons for urgency that are clearly stated in the request will be taken into account and asks that the requesting country:
- not mark a request as urgent unless it is urgent;
- detail why a request is urgent, for example, somebody is being detained in custody, somebody is due to be released from custody, pre-trial court appearances or trial dates, there is an immediate risk to individuals, risk of dissipation of assets, and so on; and
- provide the dates of any deadlines that need to be meet.
The Harare Scheme
21.16The Harare Scheme provides that requests shall be in writing unless otherwise agreed. This is expanded upon in the supplementary Model Legislation, which stipulates that the form of the request shall be in writing except “in a case of urgency”, in which case, “a request may be made and transmitted otherwise than in writing”. The Model Legislation goes on to state that, where a request has been made other than in writing, “the contents of the request shall be recorded in writing and transmitted within [72 hours] of the initial request being made”.
21.17The Explanatory Note to the Model Legislation explains that:
The clause makes provision for requests to be made otherwise than in writing (that is, typically by telephone). In such cases, a written record of the request will be made within an appropriate period of time (72 hours is suggested, but this may be modified to suit countries’ administrative arrangements) and held by the Central Authority in lieu of the written request.
This would allow the receiving central authority to begin to process the request.
Our approachTop
21.18The problem with creating a statutory urgency procedure with set response-time limits is that timeframes are difficult to predict prior to any details about the request being received. Once the request is received, the Central Authority may have to ask for further details. Timeframes will also depend on who executes the assistance, for example, whether it is a domestic agency or the court.
21.19We are unsure whether an urgency provision is warranted and easily accommodated. We see the need for reasonable formality and substance before a request should be acted upon. We think that the requirement that the foreign country should provide details of the period within which it wishes the request to be complied with is appropriate, as is a commitment by the Central Authority that it will endeavour to process the request within the requested timeframe,. This commitment could be in published guidelines stating that the Central Authority takes any deadlines seriously and will communicate with the requesting country if, for any reason, it does not think the request will be able to be dealt with in the requested timeframe.
21.20Particular bilateral arrangements could, of course, be reached with certain countries that reflect our relationship with a particular country. The use of urgency is a procedural element that we think could be altered by treaty or convention.
Question
Q88 Do you think MACMA should contain an urgent request procedure?
