Grounds for refusing assistance
15.5Sections 27(1)(a) and (b) of MACMA provide that assistance must be refused if, in the opinion of the Attorney-General:
(a) the request relates to the prosecution or punishment of a person for an offence that is, or is by reason of the circumstances in which it is alleged to have been committed or was committed, an offence of a political character; or
(b) there are substantial grounds for believing that the request has been made with a view to prosecuting or punishing a person for an offence of a political character;
15.6The political offence ground for refusal is also included in the Extradition Act, and its inclusion in MACMA is for the same fundamental reason: it has long been considered inappropriate for a country to intervene in the internal political struggles of another.
15.7The political offence ground has become more limited over time to ensure that argument on the existence of a political motivation is not used to prevent assistance being given in relation to the legitimate investigation or prosecution of a criminal act. Some countries, and international conventions and schemes, have made it clear that the scope of the political offence ground is relatively narrow. For instance, the Australian Act defines “political offence” in the same way as the Australian Extradition Act, which provides:
political offence, in relation to a country, means an offence against the law of the country that is of a political character (whether because of the circumstances in which it is committed or otherwise and whether or not there are competing political parties in the country), but does not include:
(a) an offence that involves an act of violence against a person’s life or liberty; or
(b) an offence prescribed by regulations for the purposes of this paragraph to be an extraditable offence in relation to the country or all countries; or
(c) an offence prescribed by regulations for the purposes of this paragraph not to be a political offence in relation to the country or all countries.
The Commonwealth Scheme Relating to Mutual Assistance in Criminal Matters (Harare Scheme) provides that an offence is not of a political character if it is within the scope of an international convention to which both the requesting and the requested countries are parties.
15.8As we have suggested in our review of extradition, one option for reform is to add a definition that limits the scope of the political offence exception in MACMA. This could be similar to the definition in Australia. This would ensure New Zealand law is in line with international best practice and would provide greater clarity about how this ground should operate.
Q49 Should a definition of “political offence” be added in MACMA to ensure that this ground for refusal is not interpreted too broadly?
15.9Section 27(1)(c) provides that assistance must be refused if, in the opinion of the Attorney-General:
there are substantial grounds for believing that the request was made for the purpose of prosecuting, punishing, or otherwise causing prejudice to a person on account of the person’s colour, race, ethnic origin, sex, religion, nationality, or political opinions;
15.10The ability to refuse assistance on the grounds of discrimination provides important human rights safeguards to individuals who may be affected by a request and ensures New Zealand aligns to its fundamental values when assisting other countries.
15.11The discrimination ground of refusal is very similar to the grounds for refusing surrender under the Extradition Act. In that discussion, we suggested it may be desirable to expand the bases of discrimination covered by the ground in the extradition context to include sexual orientation, age, and disability in order to modernise the provision and reflect the changes in comparable jurisdictions. We think the same should apply in MACMA. This would demonstrate New Zealand’s broad commitment to avoiding assisting other countries where the criminal investigation or prosecution is discriminatory and would be consistent with the Human Rights Act 1993.
Q50 Should the bases for refusing assistance due to discrimination be explicitly extended in MACMA to include sexual orientation, age, and disability?
15.12Section 27(1)(d) provides that assistance must be refused if, in the opinion of the Attorney-General:
the request relates to the prosecution of a person for an offence in a case where the person—
(i) has been acquitted, convicted, or pardoned by a competent tribunal or authority; or
(ii) has undergone the punishment provided by law,—
whether in the foreign country, in New Zealand, or elsewhere, in respect of that offence or of another offence constituted by the same act or omission as that offence;
15.13This ground of refusal reflects the principle of double jeopardy, which provides that no one who has been finally acquitted or convicted of an offence shall be tried or punished for it again. It accords with the New Zealand Bill of Rights Act, which applies the principle to New Zealand’s domestic law.
15.14In Part 1 of this issues paper, we discussed the scope of the double jeopardy ground, including whether it prevented extradition where a person had been convicted or acquitted in a third country. The MACMA provision, however, does not need further clarification, as it explicitly applies where the person has been acquitted, convicted, pardoned, or punished in a third country.
15.15An issue is whether it is appropriate for this ground to be mandatory. The Australian Act was amended in 2011 to make the double jeopardy ground discretionary on the basis that mutual legal assistance should be available in appropriate circumstances, such as where there is fresh evidence that was not available at the original trial. It may be appropriate for New Zealand to similarly adopt a discretionary approach to allow for the same flexibility.
Q51 Should the double jeopardy ground for refusal in MACMA become a ground that may be refused rather that a ground that must be refused?
15.16Section 27(1)(e) provides that assistance must be refused if, in the opinion of the Attorney-General:
the request relates to the prosecution or punishment of a person in respect of an act or omission that, if it had occurred in New Zealand, would have constituted an offence under the military law of New Zealand but not also under the ordinary criminal law of New Zealand;
15.17This ground has traditionally been included because military offences that are not also offences under the ordinary criminal law generally relate to matters of military discipline rather than crime. Although the ground is rarely, if ever, applicable, given its inclusion in other international schemes and domestic laws, its inclusion in MACMA remains valid.
Prejudice to sovereignty, security, or national interestsTop
15.18Section 27(1)(f) provides that assistance must be refused if, in the opinion of the Attorney-General:
the granting of the request would prejudice the sovereignty, security, or national interests of New Zealand;
15.19Grounds of this type have long been included in mutual legal assistance agreements. It is considered essential that a country is not forced to do anything against its own interests when undertaking mutual legal assistance. While this ground is mandatory, the Attorney-General would likely have some discretion in determining whether a matter does in fact prejudice New Zealand’s sovereignty, security, or national interests.
Refusal to give evidenceTop
15.20Section 27(1)(g) provides that assistance must be refused if, in the opinion of the Attorney-General:
in the case of a request made pursuant to section 37 or section 38 for the attendance of any person in that foreign country, the person to whom the request relates is not prepared to give his or her consent to the transfer;
15.21Section 37 relates to a request for the attendance of a person to give evidence or assistance in the foreign country. Section 38 refers to the same but in relation to a request for a prisoner in New Zealand.
15.22This ground reflects the principle that New Zealand will not force a person to go to another country for the purposes of mutual legal assistance. It seems to be somewhat unique to New Zealand’s mutual assistance law, but it is justified, as mutual legal assistance to a foreign country is not a sufficient reason to impinge on individual rights and freedoms.
Q52 Should the refusal to give evidence be a ground under which the request must be refused in MACMA?
Unlawful or unauthorisedTop
15.23Section 27(1)(h) provides that assistance must be refused if, in the opinion of the Attorney-General:
the request is for assistance of a kind that cannot be given under this Act, or would require steps to be taken for its implementation that could not be lawfully taken;
15.24This ground means that New Zealand must not provide assistance that is not authorised under MACMA or where carrying out the request would involve some activity that is unlawful under New Zealand law. This ground is commonly included in mutual legal assistance schemes, and it can be seen as an offshoot of the ground for refusal in section 27(1)(f), as it allows New Zealand to place primacy on its own law rather than another country’s law.