Managing the overlap with inter-agency mutual assistance regimes
Interaction between MACMA and inter-agency regimes
19.16MACMA supports inter-agency regimes by stipulating in section 5 that the Act does not derogate from existing forms of cooperation or prevent the development of future forms of cooperation. Section 5 was based on a similar provision in the Harare Scheme to recognise “existing forms of cooperation” such as Interpol. The drafters of the Harare Scheme also thought it important to allow for future cooperation arrangements between governments and enforcement agencies to be developed. They noted that, in due course, this would be critical in matters such as securities regulation or drug trafficking.
19.17There are certain types of mutual legal assistance that can only be provided under MACMA. This includes assistance that is highly intrusive, such as the taking of evidence for a criminal proceeding and the restraint and forfeiture of proceeds of crime. However, some other less intrusive types of mutual legal assistance under MACMA can also be accessed directly via an inter-agency regime. This includes:
- general requests, such as information requests and the interviewing of voluntary witnesses;
- locating or identifying persons; and
- obtaining an article or thing by search and seizure.
19.18The potential for some overlap between MACMA and an inter-agency regime is expressly acknowledged in some of the inter-agency regimes. Both the FMA and the Commerce Commission’s overseas information-sharing regimes contain a legislative provision requiring the agency to consider whether a request should more appropriately be dealt with under MACMA. However, we think some clarification around this provision is required.
19.19Sometimes, there is uncertainty among foreign and domestic agencies as to whether they should direct a request for foreign assistance to the Central Authority, when a direct request to an agency could achieve the same result. In such “overlap” situations, the use of the Central Authority may be slower. An inter-agency regime is likely to be favoured, because it is a more direct process and it avoids some of the formalities and key safeguards in MACMA. However, avoiding the safeguards and formalities in MACMA could be particularly problematic because of the lack of some fundamental safeguards across all inter-agency regimes.