Contents

Chapter 22
Outgoing requests

The value of Part 2

What provisions does Part 2 contain?

22.3Part 2 of MACMA contains 17 sections that relate solely to outgoing requests. Part 2 commences by stipulating that “[a] request for assistance pursuant to this Part may be made to any foreign country”968 and “shall be made by the Attorney-General”.969

22.4The next 14 sections specify the types of assistance that the Attorney-General can request, the circumstances under which these can be requested, and how some of the processes for providing the requested assistance are to be carried out. The specific types of assistance include:

22.5The sections closely mirror the specific types of assistance listed in Part 3 that foreign countries can request from New Zealand.977
22.6Section 23, the final section in Part 2, concerns the purpose for which information received via a foreign request is used.978 It stipulates that the information must be used for the purpose stated in the request, unless permission is given for it to be used for another purpose.

The value of Part 2Top

22.7Part 2 specifies the type of assistance that New Zealand can seek from another country. However, it has no bearing on what a foreign country will and will not agree to provide. Part 2 provides clear guidance as to the New Zealand standards on outgoing requests. This may be important for some foreign countries.

22.8Several countries with regimes similar to MACMA have an equivalent to section 23. The United Kingdom provision is almost identical, providing that, unless the appropriate overseas authority gives consent, evidence obtained pursuant to a foreign request can only be used for the requested purpose.979 Australia’s legislation provides that the material must be used for the requested purpose unless the Attorney-General gives approval – a slightly different approach given that Australia’s Attorney-General, rather than the foreign country that provided the material, makes this decision.980
22.9It may be that a foreign country can respond to a request from New Zealand only if it has an assurance from New Zealand that any information obtained will be solely used for the requested purpose. However, on review, it does not appear that foreign countries require a statutory assurance to this effect.981 We nevertheless believe the inclusion of section 23 in MACMA is valuable. It shows New Zealand’s commitment to the concept of speciality, and it is likely to be beneficial especially where the requesting country does not have a close relationship with New Zealand.

22.10The value of sections 9 to 22 is less clear. The mutual legal assistance legislation in Australia and the United Kingdom contain similar provisions for outgoing forms of assistance. However, the text of the original Harare Scheme, on which MACMA is primarily based, does not contain specific provisions for outgoing forms of assistance, and the United Nations Model Law on Mutual Assistance only includes a brief part concerning outgoing requests.

Question

Q91 What mechanism is required to enable New Zealand to make mutual legal assistance requests to foreign countries?

968Mutual Assistance in Criminal Matters Act 1992, s 7.
969Mutual Assistance in Criminal Matters Act 1992, s 8.
970Mutual Assistance in Criminal Matters Act 1992, s 9.
971Mutual Assistance in Criminal Matters Act 1992, ss 10–11.
972Mutual Assistance in Criminal Matters Act 1992, ss 12–18.
973Mutual Assistance in Criminal Matters Act 1992, s 19.
974Mutual Assistance in Criminal Matters Act 1992, s 20.
975Mutual Assistance in Criminal Matters Act 1992, s 21.
976Mutual Assistance in Criminal Matters Act 1992, s 22.
977There are some differences, however, in the circumstances under which the request can be made. For example, the Act provides that New Zealand can request assistance in obtaining an article or thing in respect of any criminal matter (s 20), but an article or thing can only be obtained from New Zealand in respect of a foreign criminal investigation or proceeding of an offence that is punishable in the foreign country by two years’ imprisonment or more (s 43).
978Mutual Assistance in Criminal Matters Act 1992, s 23.
979Crime (International Co-operation) Act 2003 (UK), s 9(2).
980Mutual Assistance in Criminal Matters Act 1987 (Cth), s 43B.
981As noted in ch 15, countries, including New Zealand, do not appear to have a similar statutory rule governing incoming requests that a country may only grant a request if it has an assurance that the material given to the requesting country will be solely used for the requested purpose. The Commission is of the view that this should be a consideration for the Attorney-General in his or her grounds for refusal: see the discussion at [15.52]–[15.59].