17.71We have reached the view that New Zealand should consider extending MACMA to include the following forms of search and surveillance assistance:
17.72However, the domestic regimes governing investigative orders and warrants should not be applied in a MACMA context without significant modification in three main areas:
17.73These three areas of necessary modification apply equally in the context of the execution of search warrants under MACMA, particularly where digital devices are involved. At present, MACMA allows the Attorney-General to address these concerns by deciding whether to provide requested search assistance at all or by issuing directions concerning the retention and disposal of the seized material. We question, however, whether MACMA currently contains sufficient guidance as to how the Attorney-General should approach these decisions. The lack of guidance is especially problematic, as the two decisions are inherently interconnected.
17.74Our view is that MACMA should have mechanisms in place to address these concerns, prior to agreeing to provide the assistance sought. We explore what those mechanisms might look like below.
17.75In processing a mutual assistance request, the New Zealand authorities will never be as familiar with the facts of the underlying case as the foreign law enforcement officers who have carriage of the relevant investigation or proceeding. Issues of language, identification of key actors, and context will routinely arise. There may also be issues with the sheer volume and complexity of the material and the presence of particular subtleties regarding what is and is not relevant. Foreign officers will also have a vested interest in ensuring that any assistance provided by New Zealand complies not only with New Zealand law but also with the laws of their own country governing criminal investigations and proceedings.
17.76These practical realities mean that, on occasion, foreign law enforcement officers have travelled to New Zealand to assist in the execution of a MACMA search warrant. Such involvement may continue to be necessary if MACMA is extended to allow for assistance in obtaining and executing examination orders or surveillance device warrants.
17.77However, the involvement of foreign law enforcement officers in exercising domestic investigative powers raises difficult issues of sovereignty and jurisdiction, including how best to protect New Zealand’s human rights values. MACMA is currently silent on this matter.
17.79To mitigate that risk, MACMA could state that the role of any foreign law enforcement officer must be agreed upon by the Central Authority and the requesting country up front. Matters to be considered could include:
Q69 How should the issue of the involvement of foreign law enforcement officers in executing search warrants (and potentially examination orders and surveillance device warrants) be dealt with under MACMA?
17.81Most of the human rights protections for those who are searched in New Zealand arise from the rules that govern how potential investigative or evidential material is dealt with after the search. These are the rules that regulate:
If this material is obtained pursuant to a mutual legal assistance request, it must be sent overseas at some point. Therefore, the ordinary rules governing these matters in the Search and Surveillance Act cannot apply without modification. We briefly discuss each of these issues in turn.
17.82This issue arises in relation to searches of digital devices and surveillance. These activities, by their nature, result in the initial collection of both relevant and irrelevant material. This material should be reviewed by law enforcement authorities, and irrelevant material should be “locked down” or removed to ensure that there is minimal invasion of privacy. In a MACMA context, this raises these interrelated questions:
17.85As previously explained, the New Zealand authorities will never be as familiar with the underlying case as the foreign law enforcement officers who are responsible for the criminal investigation or proceeding. The foreign law creating the offence will often be very different to what New Zealand investigators are used to, and the requesting jurisdiction’s rules of evidence may be unfamiliar. Indeed, the material may not be in English. In addition, in many cases, it may not be viable to excise irrelevant material from a forensic copy without affecting its overall integrity. Therefore, operational needs and effectiveness would favour the examination taking place overseas. This would also be the most cost-effective option.
17.86However, we are not sure it would be appropriate to simply send the material to the foreign country for examination before there is some determination of what is relevant. New Zealand law enforcement authorities must minimise the invasion of privacy by at least attempting to identify and “lock down” irrelevant material prior to sending it overseas.
17.87One solution would be for MACMA to create a presumption in favour of forensic copies being initially searched in New Zealand by New Zealand Police or under their supervision. The Central Authority could, however, negotiate a different solution on a case-by-case basis if it was satisfied that sufficient safeguards for the search subject were in place in the requesting country.
17.88Realistically, the Central Authority can only make this assessment after the search, once the scale and nature of the seized material is known and, if it becomes necessary to consider offshore screening, having regard to the case-specific undertakings provided by the requesting country. Such a negotiation might be necessary in relation to surveillance, as, for the assistance to be effective, the data may need to be provided to the requesting country in real time.
Q70 How should MACMA deal with the issue of sending seized (or created) material overseas in response to a request that contains both relevant and irrelevant information?
17.91This raises the question of whether the material may be sent overseas for privilege and confidentiality claims to be dealt with in the foreign jurisdiction. Clearly, this would not be a problem if the person making the claim consented, but what if they did not? On the one hand, it may seem unnecessary to allow privilege and confidentiality claims to be dealt with in both New Zealand and the foreign jurisdiction. Further, New Zealand may have complete faith in some jurisdictions to address these matters appropriately. On the other hand, resolution of these claims could again be seen as part of the search. This is consistent with the fact that, domestically, this type of material may not be formally seized whilst a claim of privilege remains outstanding.
17.92One option to deal with this issue might be to amend MACMA to state that claims of privilege and confidentiality should be dealt with in New Zealand prior to sending material overseas, wherever that is possible. The cost of this process could be shared with the foreign country, and delays could be minimised by framing the obligation so that only claims raised within a specified timeframe must be the subject of prior resolution. The foreign country could then provide an assurance that it will act in accordance with any later claims successfully made in a New Zealand court. Alternatively, the matter could simply be left to the foreign country to resolve, if the Central Authority felt confident in its justice system.
Q71 How should MACMA deal with the issue of sending potentially privileged or confidential seized (produced or created) material overseas in response to a request?
17.95There are at least two potential ways of resolving this issue. One option would be to refuse to send the material overseas until a New Zealand court has finally determined the legality and reasonableness of the investigative action. We are not in favour of this option. It could easily be used as a delay tactic to undermine the foreign investigation or proceeding. This would undermine the effectiveness of the entire process, especially if there are legitimate operational reasons for the foreign country to access and act on material quickly, in some cases, before the relevant parties become aware of its existence.
17.96The second option, which we prefer, would be to ask the foreign country to provide an assurance that it would act in accordance with any subsequent finding of a New Zealand court regarding the legality or reasonableness of the investigative action. In relation to this issue, there is no option of leaving admissibility to the foreign court to decide, as that court would have no jurisdiction to determine whether the investigative action complied with New Zealand law.
Q72 How should MACMA deal with a New Zealand Bill of Rights Act challenge to an investigative action taken under the Search and Surveillance Act in response to a request?
17.97New Zealand has a legitimate interest in ensuring that any material provided to a foreign country in accordance with a mutual legal assistance request is only used for the purpose for which it was obtained. This protects against abuse of process.
17.98Domestically, arguments of abuse of process would be raised during court proceedings regarding admissibility. That would not, however, be appropriate if the allegation is that a foreign authority is at fault. As a matter of jurisdiction, that would be an issue for the foreign court.
17.100We note that making search and surveillance assistance conditional on such an assurance would mirror the approach taken to this issue under the Extradition Act 1999.
Q73 How should MACMA protect against the collateral use of any seized (produced or created) material that is sent overseas in response to a request?
Q74 How should MACMA deal with issues of access, retention, and disposal of seized (produced or created) material that is sent overseas in response to a request?
17.102As noted throughout this chapter, providing search and surveillance assistance under MACMA may require a significant investment from the New Zealand authorities in terms of both time and resources. This can be problematic, as the customary approach is that the costs of providing mutual legal assistance are borne by the requested country. MACMA provides that the Attorney-General may ask for a contribution towards costs from a requesting country, but at present, this request may only be made if New Zealand is considering refusing the request on the basis of excessive cost. This is not the most diplomatic way of raising such a sensitive issue.
17.103In light of this issue, we put forward the option in Chapter 20 of including a provision in MACMA that specifically raises the possibility of a cost contribution as a condition of agreeing to a request. We suggest that this could apply to requests that would lead to “excessive”, “substantial” or “extraordinary costs” and that MACMA could contain a list of matters that would potentially qualify. In our opinion, almost all of the search and surveillance assistance that is currently or potentially available under MACMA should be included on such a list.
17.104Alternatively, New Zealand could consider reversing the costs presumption in relation to search and surveillance assistance. This would, however, be out of line with the general approach taken to this issue overseas, and in turn, there would be concerns about reciprocity.