14.14We understand that, in practice, the powers conferred on the Attorney-General are delegated to the Solicitor-General. Formal requests for mutual assistance are received and prepared by the Crown Law Office. Counsel in the Criminal Team prepare outgoing requests and assess incoming requests (usually in consultation with the originating agency) and then refer the requests to the Deputy Solicitor-General (Criminal) who, on delegated authority from the Solicitor-General, consents to the request being actioned or sent.
It is not credible to suggest that the Attorney-General should, or for that matter could, be personally involved in relation to such a range of mundane functions. Further, to do so would be inconsistent with his constitutional role in the justice system.
Not only is it an administrative burden for the Attorney-General but it is also inconsistent with the convention for the Attorney-General to exercise this power.
14.20In light of the constitutional convention preventing the Attorney-General from exercising this statutory power, alongside the following points, we consider whether the Attorney-General is the right person for the Central Authority role.
14.21Usually, an individual rather than an agency is named in statute in such a role, and as we noted in Part 1 of this issues paper, there are two options for who should be named as the Central Authority: the Attorney-General or the Solicitor-General.
14.22The Attorney-General is both a political and non-political actor, as he or she is both a Cabinet Minister and the senior law officer of the Crown. In the law officer role, the Attorney-General is a non-political actor responsible for the administration of the criminal law. In exercising this role, the Attorney-General provides advice to Cabinet and exercises statutory decision-making responsibilities, particularly in relation to the criminal justice system. The Attorney-General has the obligation to act on these matters independently and free from political considerations.
14.24The Attorney-General would be the most appropriate person to act as the Central Authority if it is considered that the Central Authority’s role should reside in an executive decision maker who is accountable to Cabinet. The Attorney-General would be able to provide senior oversight and a political viewpoint where necessary. If it is considered that the process be completely non-political, the Solicitor-General is the better choice.
14.25In Part 1 of this issues paper, we have suggested that there should be a Central Authority that is formally charged with the oversight of extradition in New Zealand. We discussed whether the Central Authority should be the Solicitor-General or the Attorney-General, to further emphasise that decisions as to how an extradition proceeds are not to be political ones. Some MACMA requests will require a balancing between the Government’s desire to cooperate and the reality that cooperation will be relatively resource intensive and take away from resources for domestic law enforcement. This may be felt to be political and would suggest that the Attorney-General may be best placed in the role as the Central Authority for MACMA requests.
14.26However, it would be helpful to align the Central Authority for MACMA with the proposed central authority for extradition. This would allow a coordinated approach to the assistance New Zealand provides to foreign countries in criminal matters, which is particularly beneficial where a foreign country’s request involves both extradition and MACMA proceedings. On balance, if the Solicitor-General is given formal responsibility for the progress of extradition proceedings, in our view, the Solicitor-General should also have formal responsibility for MACMA requests.
Q47 Who is the appropriate person to be designated as the Central Authority under MACMA?