The value of Part 2
What provisions does Part 2 contain?
22.3Part 2 of MACMA contains 17 sections that relate solely to outgoing requests. Part 2 commences by stipulating that “[a] request for assistance pursuant to this Part may be made to any foreign country” and “shall be made by the Attorney-General”.
22.4The next 14 sections specify the types of assistance that the Attorney-General can request, the circumstances under which these can be requested, and how some of the processes for providing the requested assistance are to be carried out. The specific types of assistance include:
- locating or identifying persons;
- obtaining evidence;
- arranging attendance of persons, including foreign prisoners, in New Zealand;
- serving documents;
- obtaining articles or things;
- enforcing orders under the Criminal Proceeds (Recovery) Act 2009; and
- issuing a warrant or order in a foreign country.
22.5The sections closely mirror the specific types of assistance listed in Part 3 that foreign countries can request from New Zealand.
22.6Section 23, the final section in Part 2, concerns the purpose for which information received via a foreign request is used. It stipulates that the information must be used for the purpose stated in the request, unless permission is given for it to be used for another purpose.
The value of Part 2Top
22.7Part 2 specifies the type of assistance that New Zealand can seek from another country. However, it has no bearing on what a foreign country will and will not agree to provide. Part 2 provides clear guidance as to the New Zealand standards on outgoing requests. This may be important for some foreign countries.
22.8Several countries with regimes similar to MACMA have an equivalent to section 23. The United Kingdom provision is almost identical, providing that, unless the appropriate overseas authority gives consent, evidence obtained pursuant to a foreign request can only be used for the requested purpose. Australia’s legislation provides that the material must be used for the requested purpose unless the Attorney-General gives approval – a slightly different approach given that Australia’s Attorney-General, rather than the foreign country that provided the material, makes this decision.
22.9It may be that a foreign country can respond to a request from New Zealand only if it has an assurance from New Zealand that any information obtained will be solely used for the requested purpose. However, on review, it does not appear that foreign countries require a statutory assurance to this effect. We nevertheless believe the inclusion of section 23 in MACMA is valuable. It shows New Zealand’s commitment to the concept of speciality, and it is likely to be beneficial especially where the requesting country does not have a close relationship with New Zealand.
22.10The value of sections 9 to 22 is less clear. The mutual legal assistance legislation in Australia and the United Kingdom contain similar provisions for outgoing forms of assistance. However, the text of the original Harare Scheme, on which MACMA is primarily based, does not contain specific provisions for outgoing forms of assistance, and the United Nations Model Law on Mutual Assistance only includes a brief part concerning outgoing requests.
Q91 What mechanism is required to enable New Zealand to make mutual legal assistance requests to foreign countries?