Giving effect to international commitments
The relationship between New Zealand’s international commitments and MACMA
13.32As crimes continue to become more sophisticated and transnational, and the international commitments New Zealand makes to assist in criminal matters continue to grow, we need to ensure that MACMA can recognise international obligations in a way that is flexible enough to allow for future commitments. Currently, this occurs primarily through the categorisation of countries. Direct amendments are also made to the Act to implement specific international commitments when required.
Categorisation of countries
13.33The categorisation of countries is set out in Part 3 of MACMA, which governs incoming requests. Section 24 sets out three categories of countries that may apply for assistance and the conditions attached to each. Specifically it provides:
(1) A request for assistance under this Part may be made by—
(a) any prescribed foreign country:
(b) subject to section 24A and section 24B, any convention country:
(c) subject to section 25A, any foreign country—
(i) that is not a prescribed foreign country or a convention country; or
(ii) that is a prescribed foreign country but where the request is not made in that capacity; or
(iii) that is a convention country but where the request is not made in that capacity.
Prescribed foreign countries
13.34A prescribed foreign country is defined as “any country (other than New Zealand) that is declared by regulations made under this Act to be a foreign country to which Part 3 applies”. Current regulations deem the following countries to be prescribed foreign countries: Australia, Fiji, Hong Kong, Niue, South Korea, China, the United Kingdom, and the United States of America.
13.35MACMA regulations can specify conditions to alter the application of Part 3 for a prescribed foreign country. In particular, MACMA states that the application of Part 3 to a prescribed foreign country may be subject to any limitations, conditions, exceptions, or qualifications relating to the provision of assistance in criminal matters that are necessary to give effect to a treaty with New Zealand.
13.36Prescribed foreign countries can be divided into two subcategories: those that have a treaty on mutual legal assistance with New Zealand and those that do not. Where there is a bilateral treaty between New Zealand and the prescribed foreign country, such a classification allows rules in that treaty to be incorporated into the application of Part 3. An example of this is the treaty New Zealand has with Hong Kong, which permits urgent requests to be made orally and confirmed in writing within 10 days. Under MACMA, there is no such provision for oral requests. The Mutual Assistance in Criminal Matters (Prescribed Foreign Country) (Hong Kong Special Administrative Region of the People’s Republic of China) Regulations 1999 states:
Part 3 of the Act applies to the Hong Kong Special Administrative Region of the People’s Republic of China subject to any limitations, conditions, exceptions, or qualifications that are necessary to give effect to the treaty.
This allows the oral procedure in the treaty to be available for MACMA requests made by Hong Kong.
13.37New Zealand currently has applicable bilateral treaties with three of the eight prescribed foreign countries: Hong Kong, South Korea, and China. It is not clear on what basis the other five countries were so categorised; however, there appear to be a number of factors informing such a determination, including:
- an expectation of reciprocity of treatment between countries; and
- whether mutual assistance requests are common between these countries, given high levels of trade, travel, and familial connections.
13.38The benefit for a prescribed foreign country that does not have a bilateral treaty is that the request will be subject to a less discretionary process than under the “ad hoc request” process.
13.39For those prescribed foreign countries that have a mutual legal assistance treaty with New Zealand, it is not always clear what specific aspects of that treaty can be incorporated into the request. The regulations do not state the particular limitations or exceptions to MACMA. These can only be ascertained by comparing the treaty text to the provisions in MACMA.
13.40This can be difficult, and the position can sometimes be uncertain. For example, the Treaty with South Korea provides that assistance may be postponed on the grounds that an ongoing criminal or criminal proceeds investigation could be prejudiced. By contrast, this is a ground for refusal under MACMA. This gives rise to ambiguity. It is not clear whether the Treaty with South Korea provides an exception to the Act in this particular situation. Such ambiguity risks causing considerable difficulty for New Zealand in dealing with requests.
13.41Convention countries are those countries party to the 31 conventions listed in the table in the Schedule to MACMA. This includes some of the conventions discussed above. The Schedule also lists the domestic offences that correspond with the conduct prohibited by the convention. For example, pursuant to the Schedule, the New Zealand offences that correspond to conduct prohibited under the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, adopted in Vienna on 19 December 1988, are the following sections of the Misuse of Drugs Act 1975:
- Section 6 Dealing with controlled drugs
- Section 9 Cultivation of prohibited plants
- Section 10 Aiding offences against corresponding law of another country
- Section 12A Equipment, material, and substances used in production or cultivation of controlled drugs
- Section 12AB Offence to knowingly import or export precursor substances for unlawful use
- Section 12B Laundering proceeds of drug offences
- Section 12C Commission of offences outside New Zealand
13.42A convention country can request assistance in accordance with a listed convention provided the request relates to criminal matters arising from the commission or suspected commission of an offence that, if committed within New Zealand, would constitute a corresponding offence.
13.43This category is New Zealand’s attempt to ensure that requests made pursuant to a convention are dealt with in a manner consistent with that convention, although still in conformity with the fundamental provisions of New Zealand law.
13.44If this convention country is also a prescribed foreign country but makes the request in its capacity as a convention country, MACMA sets out the rules of interaction:
- Interaction with the treaty: where there is a mutual legal assistance treaty between New Zealand and the convention country, the request for assistance is to be dealt with in the manner specified in that treaty, unless (or except to the extent that) to do so would be inconsistent with the convention. If the treaty excludes any of the offences listed in column 2 of the Schedule, or limits the types of assistance that may be requested in relation to those offences, the exclusion or limitation does not apply.
- Interaction with regulations: where the convention country is subject to conditions, exceptions, or qualifications as specified in the regulations due to its prescribed foreign country status, and the regulations exclude any of the offences listed in column 2 of the Schedule or limit the types of assistance that may be requested in relation to those offences, the exclusion or limitation does not apply.
13.45Similar to the problem with prescribed foreign countries, MACMA is not absolutely clear on the exact interaction between the convention and each individual element of the Act itself.
13.46Any foreign country can make an ad hoc request for assistance. In addition to the requirements of the Act, countries making an ad hoc request are also subject to section 25A. This includes a country that is a prescribed foreign country or a convention country, where that country is not making the request in either of those capacities.
13.47Section 25A(2) provides that, in deciding whether the request should be accepted, the Attorney-General must consider:
- any assurances given by that country that it will entertain a similar request by New Zealand for assistance in criminal matters;
- the seriousness of the offence to which the request relates;
- the object of this Act as specified in section 4; and
- any other matters the Attorney-General considers relevant.
Thus, the Attorney-General has the greatest discretion over whether he or she will permit an ad hoc request for assistance.
13.48While this ad hoc category is not in itself problematic, it does contain some additional considerations for the Attorney-General to consider, which a foreign country may wish to avoid. As we noted in the discussion on prescribed foreign countries, it is unclear on what grounds a country can become a prescribed foreign country. It would be useful for the Act to specify what a country would need to do in order to be deemed a prescribed foreign country.
13.49One way in which MACMA can give effect to New Zealand’s international commitments is through direct amendments to the Act itself.
13.50This has been attempted in the Organised Crime and Anti-corruption Legislation Bill on the sharing of DNA information, which was introduced on 25 June 2014. Currently, the law does not allow DNA profile information to be shared with overseas agencies for the purpose of criminal investigations and prosecutions. This became a concern in examining the agreement New Zealand entered into with the United States of America on Enhancing Cooperation in Preventing and Combating Crime (PCC Agreement). The PCC Agreement provides for the reciprocal exchange of fingerprint data and relevant underlying information between the United States and New Zealand, as permitted by each country’s domestic legislation, for the purpose of preventing and combating crime. It became clear that New Zealand’s current legislation does not allow it to give effect to this agreement. As a result, some amendments have been proposed to the Criminal Investigations (Bodily Samples) Act and MACMA to allow access to DNA profile information pursuant to a MACMA request. The proposed amendments to MACMA provide that the DNA request must relate to an offence that corresponds to a New Zealand offence that is punishable by imprisonment of more than one year. The proposed one-year timeframe came directly from the PCC Agreement, which applies to offences that are punishable by a maximum term of more than one year’s imprisonment.