Contents

Chapter 15
Grounds for refusing assistance

General issues

Stage of the criminal process to which refusal grounds apply

15.58Many of the grounds for refusing assistance explicitly apply to requests for assistance with the prosecution or punishment of an offence. There is a concern that the limitation of the grounds to the prosecution or punishment stage of a criminal matter means that the grounds cannot apply when the request for assistance relates to an early stage in the criminal process.

15.59One of the changes resulting from the recent review of the Australian mutual assistance legislation was the insertion of the word “investigation” into many of the grounds for refusing assistance. These amendments were designed to expand the operation of the grounds to cover the investigation stage of the criminal process as well as the prosecution and punishment stages.682

15.60At present, it seems there is a risk that the statutory grounds for refusing a request would not apply where a request relates to an early stage in a criminal matter. For instance, if New Zealand was asked to provide information or evidence for use in preliminary investigations, prior to any charges being laid, MACMA would not provide statutory grounds for refusing to assist on the basis of the offence being of a political or military character, extraterritoriality, or the death penalty applying. It is suggested that the grounds for refusal should apply broadly to all requests made in the appropriate circumstances.

Question

Q59 Should all grounds for refusal in MACMA relate to the investigation stage of a criminal matter in addition to the prosecution and punishment stages?

Obligation to consider conditional assistance before refusingTop

15.61A further obligation included in UNCAC is that the requested country must consult with the requesting country to consider whether a request for assistance may be granted subject to terms and conditions before deciding to refuse assistance.683 Presumably, this obligation enhances the possibility for mutual assistance by encouraging countries to work out ways to alleviate a requested country’s concerns. While MACMA allows assistance to be given subject to conditions,684 the Act does not contain an obligation to consult and attempt to negotiate conditions before refusing a request. It is not clear whether such an obligation would be helpful and would encourage and allow New Zealand to provide mutual assistance more often or whether this step would add time to the consideration of a request without having major benefits.

Question

Q60 Should New Zealand have a statutory obligation in MACMA to consult with a requesting country to consider whether a request may be granted subject to terms and conditions before deciding to refuse a request?

682Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill 2011 (Cth) (explanatory memorandum) at sch 3, pt 1, discussed at [3.2] of the Memorandum.
683United Nations Convention against Corruption 2349 UNTS 41 (opened for signature 9 December 2011, entered into force 14 December 2005), art 46(26).
684Mutual Assistance in Criminal Matters Act 1992, s 29.