Giving effect to international commitments
Key international commitments
Multilateral mutual assistance
The Commonwealth Scheme for Mutual Assistance in Criminal Matters (Harare Scheme)
13.4The Harare Scheme was adopted by Commonwealth Law Ministers in 1986. The Scheme provides a framework for cooperation on criminal matters between Commonwealth countries. It includes provisions on specific types of assistance, the procedure for effecting transmission of requests, and grounds for refusing requests. The purpose of the Scheme is to encourage and enable countries to cooperate with each other to the widest extent possible for the purpose of criminal matters.
13.5The Harare Scheme is a voluntary and non-binding instrument. Member countries are encouraged to cooperate in accordance with the Scheme by adopting legislative or other measures as necessary to implement its provisions. As one commentator noted, the voluntary nature of the Scheme provides countries with:
… considerable flexibility to implement the provisions of the whole Scheme progressively, giving due consideration to the complexity of an area of law which was new to most of them, the availability and allocation of resources, and existing legislative and constitutional obstacles in their countries.
13.6The Scheme was last revised in 2011 and is now supplemented by the Commonwealth Model Legislation. The Model Legislation is intended as a guide to assist member countries to implement the 2011 revisions to the Scheme. It cannot simply be adopted wholesale without having regard to the country’s own legislative and administrative frameworks.
13.7The Harare Scheme was the key driver for the enactment of MACMA, and along with other Commonwealth countries, to date, New Zealand has closely aligned its Act with it.
United Nations Model Treaty on Mutual Assistance in Criminal Matters
13.8The United Nations Model Treaty on Mutual Assistance in Criminal Matters was adopted by the General Assembly in 1990. The Model Treaty is not a treaty that states ratify. Rather, it can be used as a template by state parties who are negotiating a treaty between themselves on mutual assistance in criminal matters. The Model Treaty includes, for example, provisions on specific types of assistance, procedures for effecting transmission, and grounds for refusing assistance. The Model Treaty also contains footnotes indicating how states may choose to alter the obligations included.
13.9There are many similarities between the Model Treaty and bilateral mutual assistance treaties that New Zealand has with China, Hong Kong, and Korea, in particular, the headings and structure.
Bilateral mutual assistance treatiesTop
13.10Over the years, New Zealand has entered into treaties with individual countries on mutual assistance in criminal matters, these being:
- Agreement with the Government of the Hong Kong Special Administrative Region of the People’s Republic of China concerning Mutual Legal Assistance in Criminal Matters (entered into in 1998);
- Treaty with the Republic of Korea on Mutual Legal Assistance in Criminal Matters (entered into in 1999); and
- Treaty with the People’s Republic of China on Mutual Legal Assistance in Criminal Matters (entered into in 2006).
13.11These treaties have similar but not identical content to that in MACMA. They set out the form and procedure for a request, conditions around specific types of assistance, and grounds for refusing assistance and are likely to have been drafted using the UN Model Treaty as a guide.
13.12Each treaty contains a similar provision to the effect that:
a request is to be executed in accordance with the law of the Requested Party and, to the extent not prohibited by the law of the Requested Party, in accordance with the directions stated in the request so far as practicable.
Under MACMA, the treaties are interpreted as building on the assistance that could otherwise be granted by MACMA. They can, for example, provide greater flexibility in relation to procedure. This is done by allowing countries to make a request as a “prescribed foreign country”.
Multilateral crime agreementsTop
United Nations Convention against Illicit Traffic on Narcotic Drugs and Psychotropic Substances
13.13The United Nations Convention against Illicit Traffic on Narcotic Drugs and Psychotropic Substances came into force in 1990. It provides comprehensive measures against drug trafficking, including provisions against money laundering and the diversion of precursor chemicals, and for international cooperation. The purpose of the Convention is to promote cooperation among the parties to more effectively address illicit traffic in narcotic drugs and psychotropic substances.
13.14In carrying out their obligations under the Convention, parties are to “take necessary measures, including legislative and administrative measures, in conformity with the fundamental provisions of their respective domestic legislative systems”. New Zealand ratified the Convention in 1998 and is currently one of 189 state parties. MACMA primarily gives effect to it by allowing for countries to make a request to New Zealand in accordance with the convention as a “convention country”.
The United Nations Convention against Transnational Organised Crime (UNTOC)
13.15UNTOC came into force in 2003. It contains a series of measures against transnational organised crime, including the creation of domestic criminal offences (participation in an organised criminal group, money laundering, corruption, and obstruction of justice); the adoption of new and sweeping frameworks for extradition, mutual legal assistance, and law enforcement cooperation; and the promotion of training and technical assistance for building or upgrading the necessary capacity of national authorities. The purpose of the Convention is to promote cooperation to prevent and combat transnational organised crime more effectively.
13.16The obligation on each party to the Convention is similar to the obligations in the United Nations Convention against Illicit Traffic on Narcotic Drugs and Psychotropic Substances. Parties are to take the necessary measures, including legislative and administrative measures, in accordance with fundamental principles of their domestic law, to ensure the implementation of its obligations under the Convention.
13.17New Zealand ratified UNTOC in 2002 and is currently one of 179 state parties. MACMA primarily gives effect to the Convention by allowing foreign countries to make a request to New Zealand in accordance with the convention as a “convention country”.
United Nations Convention against Corruption (UNCAC)
13.18UNCAC came into force in 2005. The Convention aims to combat corruption through prevention, criminalisation, international cooperation, and asset recovery. The specific purposes of UNCAC are:
- to promote and strengthen measures to prevent and combat corruption more efficiently and effectively;
- to promote, facilitate, and support international cooperation and technical assistance in the prevention of, and fight against, corruption, including in asset recovery; and
- to promote integrity, accountability, and proper management of public affairs and public property.
13.19Provisions in UNCAC specify how international cooperation and assistance should be rendered. The obligations on parties are similar to the obligations in the above conventions. Parties are required to take the necessary measures to ensure the implementation of its obligations under UNCAC “in accordance with fundamental principles of its domestic law”.
13.20There are currently 171 state parties to UNCAC. While New Zealand signed the Convention in 2003, it has not yet ratified it.
Financial Action Task Force (FATF) international standards on combating money laundering and the financing of terrorism and proliferation
13.21FATF is an intergovernmental policy-making body that aims to combat money laundering, terrorist financing, the financing of proliferation of weapons of mass destruction, and other related threats to the integrity of the international financial system. FATF has developed Recommendations (supplemented by a Methodology) that are recognised as the international standard for combating money laundering, the financing of terrorism, and proliferation of weapons of mass destruction.
13.22The Recommendations set standards for legal, regulatory, and operational responses and include standards on mutual legal assistance generally and mutual legal assistance in freezing and confiscation. First issued in 1990, the Recommendations were revised in 1996, 2001, 2003, and most recently in 2012.
13.23As one of the 34 members of FATF, New Zealand must:
- endorse and support the Recommendations and the Methodology (as amended from time to time);
- agree to undergo a mutual evaluation during the membership process for the purposes of assessing compliance with FATF membership criteria, using the Methodology applicable at the time of the evaluation, as well as agreeing to submit subsequent follow-up reports; and
- agree to participate actively in the FATF and to meet all the other commitments of FATF membership, including supporting the role and work of the organisation.
13.24Although the standards are not binding, compliance is achieved through the mutual evaluation monitoring process. As both a member of FATF and the Asia/Pacific Group on Money Laundering, a FATF-style regional body, New Zealand is committed to implementing the Recommendations.
13.25MACMA gives effect to the FAFT Recommendations by providing a range of mechanisms that enable New Zealand to provide mutual legal assistance for use in money laundering and the financing of terrorism investigations and prosecutions.
Multilateral regulatory agreementsTop
13.26Aside from the international agreements discussed above that are in respect of purely criminal matters, New Zealand is also a party to a number of international agreements that contain mutual assistance commitments that are often primarily of a regulatory nature but may have a criminal element. Although these agreements generally do not have a direct impact on MACMA, there may be some crossover with the assistance that can be provided under the agreements and under MACMA. We have chosen to discuss two of these agreements to provide an example.
International Organisation of Securities Commissions’ (IOSCO) Multilateral Memorandum of Understanding Concerning Consultation and Cooperation and the Exchange of Information (MMoU)
13.27IOSCO is an international body that comprises 124 securities regulators from around the globe, including the New Zealand Financial Markets Authority (FMA). IOSCO sets the global standards in the securities sector and, following the events of 11 September 2001, explored how securities regulators could expand cooperation and information sharing internationally. From this came the 2002 MMoU, which, among other things, sets out requirements on the information that can be exchanged between members, how it is to be exchanged, the types of information that can be compelled, and the permissible use of information.
13.28The scope of assistance under the MMoU includes:
- providing information and documents held;
- obtaining information and documents; and
- taking or compelling a person’s statement or, where permissible, testimony under oath.
13.29The MMoU does not itself create legally binding obligations or supersede domestic laws. However, as part of the rigorous process of becoming a signatory, the applicant member must produce evidence of the law that would allow it to comply with the MMoU. The MMoU currently has signatories from 97 member agencies and a further 12 who have committed to seeking the legal authority necessary to enable them to become full signatories. The FMA became a signatory to the MMoU in 2003. The legal authority that enables the FMA to comply with the MMoU is in the Financial Markets Authority Act 2011.
Organisation for Economic Co-operation and Development (OECD) Convention on Mutual Administrative Assistance in Tax Matters
13.30The OECD is made up of 34 member countries that cooperate on matters relating to economic growth and financial stability. The amended OECD Convention on Mutual Administrative Assistance in Tax Matters came into force in 2011. The object of the Convention is to promote international cooperation for the better operation of national tax laws, while respecting the fundamental rights of taxpayers. The Convention authorises the tax authorities of the signatory countries to assist each other in the following:
- Exchange of information: exchange of information arrangements enable tax authorities to assist each other in the detection and prevention of tax evasion and tax avoidance.
- Unpaid tax recovery: assistance in recovery enables tax authorities in recovering unpaid tax from absconding taxpayers.
- Service of documents: assistance in the service of documents supports assistance in recovery by ensuring that documents such as notices of assessment and reminders reach the taxpayer concerned.
13.31New Zealand signed the Convention on 26 October 2012. It was given legislative force though the Double Tax Agreements (Mutual Administrative Assistance) Order 2013 and came into force for criminal tax matters from 1 March 2014. For all other exchange of information matters, it will come into force from 1 January 2015.