13.51MACMA currently recognises that direct amendments to the Act will not always be necessary to give effect to New Zealand’s international commitments and has developed a categorisation of countries framework to try and give effect to some of these commitments. While we agree that such a mechanism, which avoids the need for constant amendment to the Act itself, is appropriate, the current framework is difficult to work with, and a clearer, more efficient design is required.
13.52We propose that MACMA should start from the presumption that New Zealand will give the same assistance to all countries. This assistance would be detailed in the Act. The Act would set out the “minimum” or “basic” level of assistance New Zealand would provide for all countries.
13.53International mutual legal assistance agreements could supplement the Act in some ways. Similar to the position taken in Part 1 of this issues paper, MACMA would need to contain express provisions that spell out which provisions can be affected by international agreements and in what way. This would provide absolute certainty for New Zealand in dealing with requests. Any supplementary elements could not be inconsistent with the domestic laws.
13.54Supplementary elements could be procedural, such as urgency and cost-sharing elements, where an international agreement required them. We also think that further grounds for refusal could supplement the grounds in the Act. However, we think it would be difficult for international agreements to add additional types of assistance.
13.55Currently MACMA is too detailed and specific and needs to be more principle based. In this way, it could cater to the principle that, where appropriate, tools that New Zealand can employ in domestic criminal matters should be made available to foreign investigations and prosecutions.
Q45 What do you think about our proposed approach of having a basic procedure set out in MACMA for all countries, which could be supplemented through international agreements?
Q46 In thinking about a potential redrafting of MACMA, how closely do you think the Act needs to align with the Harare Scheme and its supplementary Model Legislation? Is consistency with the Commonwealth significant?