The Central Authority
Role of the Central Authority
14.5As we noted in Chapter 12, one of the core functions of MACMA is to provide a gateway for foreign countries to access the tools New Zealand uses when investigating and prosecuting criminal activity. Importantly, this gateway function is coupled with a gatekeeping role, which is given to the Central Authority. The Central Authority is responsible for ensuring foreign access to New Zealand tools is only provided in the appropriate circumstances and that the rights of individuals affected by those requests are sufficiently protected. This is facilitated through a number of mechanisms in the Act that function as checks on whether providing the assistance is desirable and acceptable for New Zealand.
14.6MACMA requires that all incoming requests must specify:
- the purpose of the request and nature of the assistance being sought;
- the person, agency, or authority that initiated the request; and
- whether the foreign country is making the request in their capacity as a prescribed foreign country or a convention country.
14.7The incoming request also requires substantial supporting documentation. Incoming requests are to be accompanied by:
- a certificate from the foreign central authority confirming that the request is made in respect of a criminal investigation or criminal proceedings within the meaning of MACMA;
- a description of the nature of the criminal investigation or criminal proceedings and a statement setting out a summary of the relevant fact and law;
- details of the procedure that the foreign country wishes to be followed in New Zealand in giving effect to the request, including details of the manner and form in which any information is to be supplied to the foreign country pursuant to the request;
- a statement setting out the wishes of the foreign country concerning the confidentiality of the request and the reasons for those wishes;
- details of the period within which the foreign country wishes the request to be complied with;
- if the request involves a person travelling from New Zealand to the foreign country, details of allowances to which the person will be entitled and of the arrangements for accommodation for the person while the person is in the foreign country pursuant to the request;
- any other information required to be included with the request under a treaty or other arrangement between New Zealand and the foreign country; and
- any other information that is likely to be of assistance.
Although the amount of supporting documentation may appear administratively burdensome, it tends not to create delay in application and processing times because compliance is relatively easy. For example, a sentence in a covering letter is all that is needed to satisfy the “certificate” requirement.
14.8This material assists the Attorney-General in determining whether New Zealand may be able to provide the requested assistance to the foreign country. Failure to comply with form requirements will not necessarily preclude the request from being accepted, as the Attorney-General has discretion to grant the request despite non-compliance in this area.
Checks on specific types of assistance soughtTop
14.9While MACMA applies broadly in respect of criminal matters, both the stage of the criminal matter and the penalty level of the offence as provided in the requested country may be relevant in whether New Zealand is able to provide certain types of assistance. For example, while New Zealand can assist in locating or identifying persons or serving documents, in respect of a criminal investigation or proceeding in the foreign country, it can only assist in organising for the attendance of a prisoner in a foreign country in respect of a criminal proceeding that has been instituted in the foreign country or where there is a criminal investigation of a foreign serious offence. Similarly, New Zealand can only assist in obtaining a search warrant relating to evidentiary material where the offence to which the investigation or proceeding relates is punishable in the foreign country by two years’ imprisonment or more.
14.10Some types of assistance in MACMA are more intrusive and may impinge on the rights of individuals more greatly. By restricting the availability of some types of assistance to the advanced stages of a prosecution or to more serious offending, there is an additional gatekeeping function operating.
Grounds for refusing a requestTop
14.11As part of the Attorney-General’s decision on whether to grant the requested assistance to the foreign country, MACMA sets out grounds under which the request for assistance must be refused (“mandatory” grounds) and grounds under which the request may be refused (“discretionary” grounds). Whether any such grounds exist is to be determined “in the opinion of the Attorney-General”.
14.12The following table summarises the mandatory and discretionary grounds:
|MANDATORY GROUNDS – SECTION 27(1) ||DISCRETIONARY GROUNDS – SECTION 27(2) |
|Political offence ||Dual criminality |
|Discrimination ||Extraterritoriality |
|Double jeopardy ||Offence could not be prosecuted in New Zealand because of lapse of time or other reason |
|Military offence ||Death penalty |
|Prejudice to sovereignty, security, or national interests ||Prisoner requested to give evidence but would not be in public interest or prisoner’s interests |
|Person requested to give evidence does not consent to travel to the foreign country ||Prejudice to a criminal investigation in New Zealand |
|Assistance unlawful or not authorised under MACMA ||Prejudice to the safety of any person |
| ||Excessive burden on resources or triviality |
| ||Request not in correct form |
These grounds act as a check in relation to whether providing the assistance is desirable and acceptable for New Zealand.
14.13The Central Authority can also impose conditions on providing the assistance.