The Mutual Assistance in Criminal Matters Act 1992 ("MACMA") allows for requests to be made to New Zealand by prescribed foreign countries, convention countries and all other foreign countries on a case-by-case basis or ad hoc basis.
Prescribed foreign countries are those countries identified by Regulations made under MACMA. Those countries are currently Australia, Fiji, Hong Kong Special Administrative Region of the People's Republic of China; Niue; The Republic of Korea; The United Kingdom; and The United States. See also Relationships with Other Countries.
Convention countries are countries which are party to certain conventions as listed in the schedule to MACMA.
Under New Zealand law, New Zealand can request mutual assistance from any country. This process is assisted by several countries being designated as prescribed foreign countries, as identified by the Regulations made under MACMA, and some multilateral international conventions to which New Zealand is a party (see above).
MACMA allows for New Zealand to request other countries fulfil requests for the same kinds of assistance as New Zealand can provide for other countries. While MACMA does not set out the form that responses to New Zealand's mutual assistance requests should take, they are governed by a number of statutes and common law rules, in particular the Evidence Act 2006. New Zealand's system has strict requirements about what form documents need to be in, in order to be admissible in court. That is why New Zealand's requests often specify in some detail the form in which a response should be provided.
Law enforcement agencies that require information about what is needed for New Zealand to make a mutual assistance request to a foreign country should contact the New Zealand Central Authority for Mutual Assistance in Criminal Matters at Crown Law. See further Contact details.
Requests under MACMA should be made to the Attorney-General. In practice, formal requests for mutual assistance are received by the Crown Law Office on behalf of the Attorney-General. If requests are received by other New Zealand agencies or a court in New Zealand, they should be sent to the New Zealand Central Authority for Mutual Assistance in Criminal Matters, the Crown Law Office. Section 26 of MACMA requires that all requests made to New Zealand specify certain matters. These are:
- The purpose of the request and nature of the assistance being sought; and
- The person, agency, or authority that initiated the request; and
- The capacity in which the country is making the request (i.e. as a prescribed foreign country, convention country and, if so, which convention, or on an ad-hoc basis).
Requests are to be accompanied by the following:
- A certificate from the Foreign Central Authority confirming that the request is made in respect of a criminal investigation or criminal proceedings within the meaning of MACMA (see Certificates from Central Authorities below); and
- A description of the nature of the criminal investigation or criminal proceedings and a statement setting out a summary of the relevant facts and law; and
- Details of the procedure that the foreign country wishes to be followed in New Zealand in giving effect to the request, including details of the manner and form in which any information is to be supplied to the foreign country pursuant to the request; and
- A statement setting out the wishes of the foreign country concerning the confidentiality of the request and the reasons for those wishes; and
- Details of the period within which the foreign country wishes the request to be complied with; and
- If the request involves a person travelling from New Zealand to the foreign country, details of allowances to which the person will be entitled and of the arrangements for accommodation for the person while the person is in the foreign country pursuant to the request; and
- Any other information required to be included with the request under a Treaty or other arrangement between New Zealand and the foreign country.
Any other information that is likely to be of assistance should also be included.
New Zealand's legislation requires mutual assistance requests to come from the Central Authority of the requesting country. The reasons for this are that the Central Authority:
- Exercises information and quality control;
- Is able (as the foreign Government's representative) to assure reciprocity to New Zealand and provide other binding assurances; and
- Ensures the request is sufficiently important.
Section 26(c)(ii) of MACMA requires that each request for assistance be accompanied by a certificate from the Central Authority of the foreign country that the request is made in respect of a criminal investigation or criminal proceedings within the meaning of the Act. Criminal investigations and criminal proceedings are defined in section 2 of the Act. There is no set form for this certificate. However, there must be something from the Central Authority itself to prove the request originated from the right authority. A formal covering letter from the Central Authority which covers the following matters is preferable:
- Confirms that the request came from the Central Authority; and
- Certifies that the request is made in respect of a criminal investigation or proceeding within the meaning of the Act