17.1A by-product of the current digital revolution is that it has created new opportunities for crime both domestically and internationally. At an international level, cross-border crime is even more likely to be committed, or at least facilitated, by digital devices, so the need to modernise the law is higher. However, the ability to protect human rights values using the same methods as employed domestically is diminished. Ordinarily, there are two stages of human rights protections. Firstly, there is the need for prior judicial authorisation for investigative action. Secondly, there are strict controls governing the use and retention of any seized material. These controls include: placing limitations on access to the material; ensuring that irrelevant, confidential, and privileged material is disregarded; and providing appropriate remedies for unlawfulness or unreasonableness. If the seized material is sent overseas, it becomes difficult to ensure that this second tier of privacy protections is complied with.
17.5We begin this chapter by comparing New Zealand’s domestic search and surveillance regime to that which is available under MACMA. We identify the major differences between the two regimes and explore the rationale for those differences. We then look at New Zealand’s international obligations in relation to this type of assistance. Finally, we discuss the necessary modifications that would be required to the domestic regime if the search and surveillance tools available under MACMA were extended.
17.6Our view is that MACMA should be extended to provide a wider range of search and surveillance assistance to foreign countries in criminal matters. However, any such extension would need to be accompanied by more transparent and stringent human rights protections. To strengthen the Attorney-General’s gatekeeping role in this area, search and surveillance assistance should be subject to strict legislative conditions. Moreover, the Attorney-General should have the discretion to refuse to provide this assistance and should be able to forgo the usual requirement to provide the foreign country with reasons.