Mutual Assistance in Criminal Matters Act 1992

1: Short Title and commencement
1: This Act may be cited as the Mutual Assistance in Criminal Matters Act 1992.
2: This Act shall come into force on 1 April 1993.
1: Preliminary provisions
2: Interpretation
1: In this Act, unless the context otherwise requires,— assets forfeiture order section 5(1) Central Authority Commissioner convention country referred to in column 1 of the table in the Schedule criminal investigation
a: in Part 2
b: in Part 3 criminal matter criminal proceedings
a: in Part 2
b: in Part 3 document section 5(1) examination order section 107 financial institution section 3 foreign country foreign forfeiture order
a: an order made under the law of a foreign country by a court or other judicial authority for the forfeiture of property that is—
i: tainted property (as defined in relation to Part 3
ii: property of a person who has unlawfully benefited from significant foreign criminal activity; or
iii: an instrument of crime (as defined in relation to Part 3
b: a foreign pecuniary penalty order foreign law immunity certificate
a: to answer a specified question; or
b: to provide a specified document foreign order foreign pecuniary penalty order foreign prisoner
a: pending trial for, or sentence for; or
b: pursuant to a sentence of imprisonment for,— an offence against the law of that foreign country foreign qualifying forfeiture offence
a: an offence in a foreign country that is punishable in that country by a maximum term of imprisonment of 5 years or more (including an attempt to commit, conspiring to commit, or being an accessory to an offence if the maximum term of imprisonment for that attempt, conspiracy, or activity is 5 years or more); and
b: an offence under the law of a foreign country that is a party to the United Nations Convention against Transnational Organised Crime, done at New York on 15 November 2000, if—
i: it is punishable by imprisonment for a term of 4 years or more; and
ii: there are reasonable grounds to suspect that it is transnational in nature (as defined in articles 3(2) and 18(1) of that convention) and involves an organised criminal group (as defined in article 2(a) of that convention) foreign restraining order
a: restrains a particular person, or all persons, from dealing with the property specified in the order; and
b: relates to—
i: tainted property (as defined in relation to Part 3
ii: property of a person who has, or who may have, unlawfully benefited from significant foreign criminal activity; or
iii: an instrument of crime (as defined in relation to Part 3
iv: property that will satisfy some or all of a foreign pecuniary penalty order forfeiture order section 5(1) instrument forfeiture order section 5(1) instrument of crime
a: in relation to Part 2 section 5(1)
b: in relation to Part 3 Judge judicial records Minister official records prescribed foreign country Part 3 prison section 3(1) prisoner legal custody of any person under the Corrections Act 2004 process Community Magistrate, production order section 105 profit forfeiture order section 5(1) property section 5(1) qualifying instrument forfeiture offence section 5(1) requesting country Part 3 restraining order section 5(1) significant criminal activity section 5(1) significant foreign criminal activity
a: means an activity engaged in by a person in a foreign country that if proceeded against as a criminal offence in that country—
i: would amount to offending—
A: that consists of, or includes, 1 or more offences punishable by a maximum term of imprisonment of 5 years or more; or
B: from which property, proceeds, or benefits of a value of $30,000 or more have, directly or indirectly, been acquired or derived; and
ii: whether or not—
A: the person has been charged with or convicted of the offending; or
B: the person has been acquitted of the offending; or
C: the person’s conviction for the offending has been quashed or set aside; and
b: includes an offence under the law of a foreign country that is a party to the United Nations Convention against Transnational Organised Crime, done at New York on 15 November 2000, if—
i: it is punishable by imprisonment for a term of 4 years or more; and
ii: there are reasonable grounds to suspect that it is transnational in nature (as defined in articles 3(2) and 18(1) of that convention) and involves an organised criminal group (as defined in article 2(a) of that convention) tainted property
a: in relation to Part 2 section 5(1)
b: in relation to Part 3
i: means any property that has, wholly or in part, been—
A: acquired as a result of significant foreign criminal activity; or
B: directly or indirectly derived from significant foreign criminal activity; and
ii: includes any property that has been—
A: acquired as a result of more than 1 activity if at least 1 of those activities is a significant foreign criminal activity; or
B: directly or indirectly derived from more than 1 activity if at least 1 of those activities is a significant foreign criminal activity unlawfully benefited from significant foreign criminal activity
2: A reference in this Act to criminal proceedings or a criminal investigation includes proceedings or investigations into the following matters:
a: revenue (including taxation and customs and excise duties):
b: foreign exchange control:
c: the forfeiture of property as a result of the commission of an offence:
d: the restraint of dealings with property or the freezing of assets that may be forfeited as a result of the commission of an offence:
e: imposing or recovering pecuniary penalties under, and restraining dealing with property needed to satisfy, a foreign pecuniary penalty order imposed as a result of the commission of an offence.
3: A reference in this Act to a benefit derived by a person includes a reference to—
a: a benefit derived, directly or indirectly, by the person; and
b: a benefit derived, directly or indirectly, by another person at the request or direction of the first-mentioned person.
4: Where—
a: any foreign country consists of a federation of States, or has more than 1 system of law, or has any 1 or more autonomous territorial organisations; and
b: more than 1 Central Authority is appointed for that foreign country,— a reference in this Act to the Central Authority of that foreign country, in relation to a request made pursuant to this Act, means the Central Authority for that foreign country that, in the circumstances of the particular case, is the appropriate Central Authority to transmit or, as the case may be, receive the request.
5: A reference in this Act to the law of a foreign country includes a reference to the law of a part of, or the law in force in part of, the country.
6: In this Act, a reference to an offence of a political character does not include—
a: an offence—
i: that is constituted by conduct of a kind referred to in a multilateral treaty to which New Zealand is a party; and
ii: for which parties have an obligation to provide to one another assistance in criminal matters; or
b: any offence in relation to which New Zealand has agreed in writing with another country that the offence will not be treated as a political offence for the purposes of the provision of assistance in criminal matters between New Zealand and that country. Section 2(1) assets forfeiture order inserted 1 December 2009 section 5(1) Mutual Assistance in Criminal Matters Amendment Act 2009 Section 2(1) Commissioner inserted 1 December 2009 section 5(2) Mutual Assistance in Criminal Matters Amendment Act 2009 Section 2(1) convention country inserted 1 March 1999 section 2 Mutual Assistance in Criminal Matters Amendment Act 1998 Section 2(1) convention country amended 18 June 2002 section 3(1) Mutual Assistance in Criminal Matters Amendment Act 2002 Section 2(1) document substituted 1 December 2009 section 5(2) Mutual Assistance in Criminal Matters Amendment Act 2009 Section 2(1) examination order inserted 1 December 2009 section 5(2) Mutual Assistance in Criminal Matters Amendment Act 2009 Section 2(1) financial institution substituted 1 December 2009 section 5(2) Mutual Assistance in Criminal Matters Amendment Act 2009 Section 2(1) foreign drug-dealing offence repealed 1 December 2009 section 5(3) Mutual Assistance in Criminal Matters Amendment Act 2009 Section 2(1) foreign forfeiture order substituted 1 December 2009 section 5(4) Mutual Assistance in Criminal Matters Amendment Act 2009 Section 2(1) foreign order inserted 1 December 2009 section 5(5) Mutual Assistance in Criminal Matters Amendment Act 2009 Section 2(1) foreign pecuniary penalty order substituted 1 December 2009 section 5(5) Mutual Assistance in Criminal Matters Amendment Act 2009 Section 2(1) foreign qualifying forfeiture offence inserted 1 December 2009 section 5(7) Mutual Assistance in Criminal Matters Amendment Act 2009 Section 2(1) foreign restraining order substituted 1 December 2009 section 5(6) Mutual Assistance in Criminal Matters Amendment Act 2009 Section 2(1) foreign serious offence repealed 1 December 2009 section 5(7) Mutual Assistance in Criminal Matters Amendment Act 2009 Section 2(1) forfeiture order substituted 1 December 2009 section 5(9) Mutual Assistance in Criminal Matters Amendment Act 2009 Section 2(1) instrument forfeiture order inserted 1 December 2009 section 5(9) Mutual Assistance in Criminal Matters Amendment Act 2009 Section 2(1) instrument of crime inserted 1 December 2009 section 5(9) Mutual Assistance in Criminal Matters Amendment Act 2009 Section 2(1) monitoring order repealed 1 December 2009 section 5(10) Mutual Assistance in Criminal Matters Amendment Act 2009 Section 2(1) pecuniary penalty order repealed 1 December 2009 section 5(11) Mutual Assistance in Criminal Matters Amendment Act 2009 Section 2(1) penal institution repealed 1 June 2005 section 206 Corrections Act 2004 Section 2(1) prison inserted 1 June 2005 section 206 Corrections Act 2004 Section 2(1) prisoner amended 1 June 2005 section 206 Corrections Act 2004 Section 2(1) Proceeds of Crime Act repealed 1 December 2009 section 5(12) Mutual Assistance in Criminal Matters Amendment Act 2009 Section 2(1) process amended 30 June 1998 section 7 District Courts Amendment Act 1998 Section 2(1) production order substituted 1 December 2009 section 5(13) Mutual Assistance in Criminal Matters Amendment Act 2009 Section 2(1) profit forfeiture order inserted 1 December 2009 section 5(13) Mutual Assistance in Criminal Matters Amendment Act 2009 Section 2(1) property substituted 1 December 2009 section 5(14) Mutual Assistance in Criminal Matters Amendment Act 2009 Section 2(1) property-tracking document repealed 1 December 2009 section 5(14) Mutual Assistance in Criminal Matters Amendment Act 2009 Section 2(1) qualifying instrument forfeiture offence inserted 1 December 2009 section 5(14) Mutual Assistance in Criminal Matters Amendment Act 2009 Section 2(1) restraining order substituted 1 December 2009 section 5(15) Mutual Assistance in Criminal Matters Amendment Act 2009 Section 2(1) serious offence repealed 1 December 2009 section 5(15) Mutual Assistance in Criminal Matters Amendment Act 2009 Section 2(1) significant criminal activity inserted 1 December 2009 section 5(15) Mutual Assistance in Criminal Matters Amendment Act 2009 Section 2(1) significant foreign criminal activity inserted 1 December 2009 section 5(15) Mutual Assistance in Criminal Matters Amendment Act 2009 Section 2(1) tainted property substituted 1 December 2009 section 5(15) Mutual Assistance in Criminal Matters Amendment Act 2009 Section 2(1) unlawfully benefited from significant foreign criminal activity added 1 December 2009 section 5(15) Mutual Assistance in Criminal Matters Amendment Act 2009 Section 2(2) substituted 1 December 2009 section 5(16) Mutual Assistance in Criminal Matters Amendment Act 2009 Section 2(6) added 18 June 2002 section 3(3) Mutual Assistance in Criminal Matters Amendment Act 2002
2A: Certain investigations relating to civil proceedings deemed to be criminal investigations
1: An investigation certified by the Attorney-General to have commenced in New Zealand relating to the restraint or forfeiture of property that is, or is suspected on reasonable grounds to be or to be likely to be, any of the things in subsection (2) must be treated as a criminal investigation for the purposes of Part 2
2: The things referred to in subsection (1) are—
a: tainted property (as defined in relation to Part 2
b: property of a person who has unlawfully benefited from significant criminal activity.
3: An investigation in a foreign country certified by the Central Authority for that country to have commenced in that country relating to the restraint or forfeiture of property that is, or is suspected on reasonable grounds to be or to be likely to be, any of the things referred to in subsection (4) must be treated as a criminal investigation for the purposes of Part 3
4: The things referred to in subsection (3) are—
a: tainted property (as defined in relation to Part 3
b: property of a person who has unlawfully benefited from significant criminal activity; or
c: an instrument of crime (as defined in relation to Part 3
d: property that will satisfy all or part of a pecuniary penalty order.
5: Investigations treated as criminal investigations under this section are criminal matters for the purposes of Parts 2 3 Section 2A inserted 1 December 2009 section 6 Mutual Assistance in Criminal Matters Amendment Act 2009
2B: Certain civil proceedings deemed to be criminal proceedings
1: A proceeding certified by the Attorney-General to have been instituted in respect of the forfeiture or restraint of property that is, or is suspected on reasonable grounds to be or to be likely to be, any of the things referred to in subsection (2) must be treated as a criminal proceeding for the purposes of Part 2
2: The things referred to in subsection (1) are—
a: tainted property (as defined in relation to Part 2
b: property of a person who has unlawfully benefited from significant criminal activity.
3: A proceeding certified by the Central Authority of the requesting country to have been instituted in respect of the forfeiture or restraint of property that is, or is suspected on reasonable grounds to be or to be likely to be, any of the things referred to in subsection (4) must be treated as a criminal proceeding despite being civil in nature.
4: The things referred to in subsection (3) are—
a: tainted property (as defined in relation to Part 3
b: property of a person who has unlawfully benefited from significant foreign criminal activity; or
c: an instrument of crime (as defined in relation to Part 3
d: property that will satisfy all or part of a foreign pecuniary penalty order.
5: Proceedings treated as criminal proceedings under this section are criminal matters for the purposes of Parts 2 3 Section 2B inserted 1 December 2009 section 6 Mutual Assistance in Criminal Matters Amendment Act 2009
3: Act to bind the Crown
This Act binds the Crown.
4: Object of Act
The object of this Act is to facilitate the provision and obtaining, by New Zealand, of international assistance in criminal matters, including—
a: the identification and location of persons:
b: the obtaining of evidence, documents, or other articles:
c: the production of documents and other articles:
d: the making of arrangements for persons to give evidence or assist investigations:
e: the service of documents:
f: the execution of requests for search and seizure:
g: the forfeiture of—
i: tainted property; and
ii: property of persons who have unlawfully benefited from significant criminal activity or significant foreign criminal activity; and
iii: instruments of crime; and
iv: property that will satisfy all or part of a foreign pecuniary penalty order:
h: the location of property that may be forfeited:
i: the recovery of property to satisfy foreign pecuniary penalty orders:
j: the restraining of dealings with property, or the freezing of assets, that may be forfeited. Mutual Assistance in Criminal Matters Act 1987 s 5 (Aust) Section 4(g) substituted 1 December 2009 section 7 Mutual Assistance in Criminal Matters Amendment Act 2009 Section 4(h) substituted 1 December 2009 section 7 Mutual Assistance in Criminal Matters Amendment Act 2009 Section 4(i) substituted 1 December 2009 section 7 Mutual Assistance in Criminal Matters Amendment Act 2009 Section 4(j) substituted 1 December 2009 section 7 Mutual Assistance in Criminal Matters Amendment Act 2009
5: Act not to limit other provision of assistance
Nothing in this Act—
a: derogates from existing forms of co-operation (whether formal or informal) in respect of criminal matters between New Zealand and any other country; or
b: prevents the development of other forms of such co-operation. Mutual Assistance in Criminal Matters Act 1987 s 6 (Aust)
6: Act not authority for extradition of any person
Nothing in this Act authorises—
a: the extradition or rendition of any person; or
b: the arrest or detention, with a view to extradition or rendition, of any person.
2: Requests by New Zealand
Preliminary provisions
7: Application of this Part
A request for assistance pursuant to this Part may be made to any foreign country.
8: Requests to be made by Attorney-General
Requests by New Zealand for assistance under this Part shall be made by the Attorney-General. Assistance in locating or identifying persons
9: Assistance in locating or identifying persons
Where the Attorney-General is satisfied that there are reasonable grounds for believing that there is, in any foreign country, a person who—
a: is or might be concerned in or affected by; or
b: could give or provide evidence or assistance relevant to— any criminal matter in New Zealand, the Attorney-General may request that foreign country to assist in locating or, if the person’s identity is unknown, in identifying and locating that person. Assistance in obtaining evidence
10: Assistance in obtaining evidence
Where the Attorney-General is satisfied that there are reasonable grounds for believing that evidence or information relevant to any criminal matter in New Zealand may be obtained if—
a: evidence is taken in a foreign country; or
b: documents or other articles in a foreign country are produced,— the Attorney-General may request that foreign country to assist in obtaining that evidence or information. Mutual Assistance in Criminal Matters Act 1987 s 12 (Aust)
11: Assistance in obtaining evidence for use in New Zealand court
1: Where the Attorney-General is satisfied that there are reasonable grounds for believing that evidence or information relevant to any criminal proceedings in New Zealand may be obtained if a court or other judicial authority in a foreign country is requested—
a: to take, or cause to be taken, the evidence of any specified person; or
b: to order the production of any specified document by any person,— the Attorney-General may request that foreign country to assist in arranging for that evidence to be taken or that document to be produced.
2: Any deposition (by whatever name called) that is received from a foreign country pursuant to a request made under subsection (1) and that purports to have been signed by the deponent and the person taking the evidence or to have been certified as a correct record by the person taking the evidence may, subject to the rules of law relating to the admission of evidence, be put in as evidence at the hearing of the criminal proceedings to which the request relates.
3: Any document (other than a deposition) received from a foreign country pursuant to a request made under subsection (1) may, subject to the rules of law relating to the admission of evidence, be put in as evidence at the hearing of the criminal proceedings to which the request relates as if produced by the person who produced the document pursuant to the order of the court or other judicial authority of that foreign country.
4: All courts shall take judicial notice of any seal or signature impressed, affixed, appended, or subscribed on or to any deposition (by whatever name called) tendered in evidence under this section. Assistance in arranging attendance of person in New Zealand
12: Assistance in arranging attendance of person
1: Where the Attorney-General is satisfied that there are reasonable grounds for believing that a person in a foreign country could give or provide evidence or assistance relevant to any criminal matter in New Zealand, the Attorney-General may request that foreign country to assist in arranging the attendance of the person in New Zealand to give or provide that evidence or, as the case may be, that assistance.
2: Where the Attorney-General is satisfied that a person in respect of whom a request is made to a foreign country under subsection (1) consents to travel to New Zealand to give or provide evidence or assistance pursuant to that request, the Attorney-General may make arrangements with that foreign country for the purposes of—
a: the removal of the person to New Zealand:
b: in the case of a foreign prisoner, the custody of that person while in New Zealand:
c: the return of the person to the foreign country:
d: other relevant matters. Mutual Assistance in Criminal Matters Act 1987 s 16 (Aust)
13: Certificate that attendance required
1: For the purposes of enabling the grant of a temporary visa under the Immigration Act 2009 section 12
2: The Attorney-General may, at any time, by notice in writing, cancel any certificate issued under subsection (1) in respect of any person who is in New Zealand pursuant to a request made under section 12 Section 13(1) amended 29 November 2010 section 406(1) Immigration Act 2009
14: Penalty not to be imposed for refusal to consent
Where, pursuant to section 12
15: Custody of foreign prisoners
1: Where—
a: a person who is to be brought to New Zealand from a foreign country pursuant to a request made under section 12(1)
b: that foreign country requests that the person be kept in custody while he or she is in New Zealand,— that person shall, while that person is in New Zealand or is travelling to or from New Zealand pursuant to the request, be kept in such custody as the Minister directs in writing.
2: A direction given pursuant to subsection (1) in respect of any foreign prisoner shall be sufficient authority for the detention of that person in accordance with the terms of the direction.
3: Where, pursuant to subsection (1), a foreign prisoner who is in New Zealand pursuant to a request made under section 12(1) prison Corrections Act 2004 prison
4: Where the Attorney-General is satisfied, in respect of a foreign prisoner who is in New Zealand pursuant to a request made under section 12(1) Mutual Assistance in Criminal Matters Act 1987 ss 18, 22 (Aust) Section 15(3) amended 1 June 2005 section 206 Corrections Act 2004
16: Release of foreign prisoner upon request by foreign country
Where—
a: a foreign prisoner is being held in custody in accordance with a direction of the Minister under section 15
b: the foreign country from which the person has been brought requests the release of the person from custody,— the Minister shall direct that the person be released from custody. Mutual Assistance in Criminal Matters Act 1987 s 23 (Aust)
17: Immunities and privileges
1: Subject to subsection (3), where a person (including a person who is a foreign prisoner) is in New Zealand pursuant to a request made under section 12
a: be detained, prosecuted, or punished in New Zealand for any offence that is alleged to have been committed, or that was committed, before the person’s departure from the foreign country pursuant to the request; or
b: be subjected to any civil proceedings in New Zealand in respect of any act or omission that is alleged to have occurred, or that occurred, before the person’s departure from the foreign country pursuant to the request, being civil proceedings to which the person could not be subjected if the person were not in New Zealand; or
c: be required to give or provide evidence or assistance in relation to any criminal matter in New Zealand other than the criminal matter to which the request relates; or
d: be required, in the proceedings or investigation to which the request relates, to answer any question that the person would not be required to answer if those proceedings or that investigation were taking place in the foreign country; or
e: be required, in the proceedings or investigation to which the request relates, to produce any document or article that the person would not be required to produce if those proceedings or that investigation were taking place in the foreign country.
2: For the purposes of subsection (1), a duly authenticated foreign law immunity certificate is admissible in proceedings as prima facie evidence of the matters stated in the certificate.
3: Subsection (1) shall not apply in relation to a person where—
a: the person has left New Zealand and then returns otherwise than pursuant to the same or another request; or
b: the person has had the opportunity to leave New Zealand and has remained in New Zealand otherwise than for—
i: the purpose to which the request relates; or
ii: the purpose of giving evidence in any criminal proceedings in New Zealand certified by the Attorney-General, in writing, to be proceedings in which it is desirable that the person give evidence; or
iii: the purpose of giving assistance in relation to an investigation in New Zealand certified by the Attorney-General, in writing, to be an investigation in relation to which it is desirable that the person give assistance.
4: A certificate given by the Attorney-General for the purposes of subparagraph (ii) or subparagraph (iii) of subsection (3)﻿(b) has effect from the day specified in the certificate (which may be a day before the day on which the certificate is given). Mutual Assistance in Criminal Matters Act 1987 s 19 (Aust)
18: Limitation on use of evidence
Where—
a: a person is in New Zealand pursuant to a request made under section 12
b: that person gives evidence in any criminal proceedings, being—
i: the criminal proceedings to which the request relates or any criminal proceedings consequent on the investigation to which the request relates; or
ii: criminal proceedings certified by the Attorney-General pursuant to section 17(3)﻿(b)﻿(ii) that evidence shall not be admitted or otherwise used in any prosecution of the person for any offence against the law of New Zealand, except on the trial of the person for perjury within the meaning of the Crimes Act 1961 Mutual Assistance in Criminal Matters Act 1987 s 21 (Aust) Assistance in serving documents
19: Assistance in serving documents
The Attorney-General may request a foreign country to assist in effecting service of any process where the Attorney-General is satisfied that, for the purposes of, or in connection with, any criminal matter, it is necessary or desirable to serve that process on a person or an authority in the foreign country. Assistance in obtaining articles or things
20: Assistance in obtaining article or thing
1: Subject to subsection (2), where the Attorney-General is satisfied that there are reasonable grounds for believing that an article or thing is in a foreign country and would, if produced, be relevant to any criminal matter in New Zealand, the Attorney-General may request the foreign country to assist in obtaining, by search and seizure if necessary, the article or thing.
2: No request may be made under this section for assistance in obtaining an article or thing by search and seizure unless the Attorney-General is satisfied that there are reasonable grounds for believing that the article or thing would, if produced, be relevant to any criminal matter in respect of an offence against the law of New Zealand punishable by imprisonment for a term of 2 years or more. Request to enforce orders under Criminal Proceeds (Recovery) Act 2009 Heading substituted 1 December 2009 section 8 Mutual Assistance in Criminal Matters Amendment Act 2009
21: Request to enforce orders under Criminal Proceeds (Recovery) Act 2009
1: The Attorney-General may, if the circumstances in subsection (2) exist, request a foreign country to make arrangements to enforce any of the following in that country:
a: an assets forfeiture order:
b: a profit forfeiture order:
c: an instrument forfeiture order:
d: a restraining order.
2: The circumstances are that the Attorney-General has reasonable grounds to believe that some or all of the property to which the order relates is located in the foreign country. Section 21 substituted 1 December 2009 section 8 Mutual Assistance in Criminal Matters Amendment Act 2009 Request to issue warrant or order in foreign country Heading substituted 1 December 2009 section 8 Mutual Assistance in Criminal Matters Amendment Act 2009
22: Request to issue warrant or order in foreign country
1: The Attorney-General may, if a criminal matter has arisen in New Zealand in respect of any of the things referred to in subsection (2), request a foreign country to issue a warrant or order similar to the following warrants or orders made under the Criminal Proceeds (Recovery) Act 2009
a: a restraining order:
b: a search warrant of the kind issued under section 101 102 110
c: a production order:
d: an examination order.
2: The things referred to in subsection (1) are—
a: tainted property (as defined in relation to Part 2
b: property of a person who has unlawfully benefited from significant criminal activity; or
c: an instrument of crime (as defined in relation to Part 2 Section 22 substituted 1 December 2009 section 8 Mutual Assistance in Criminal Matters Amendment Act 2009 Miscellaneous provisions
23: Restriction on use of evidence
Any evidence, information, document, or article that is obtained, provided, or produced pursuant to a request made under this Part shall be used by a New Zealand authority only for the purposes of, or in connection with, the criminal matter to which the request relates, unless—
a: the foreign country to which the request was made; and
b: in the case of any evidence, information, document, or article obtained from, or provided or produced by, a person while he or she is in New Zealand pursuant to a request made under section 12 consents to the use of the evidence, information, document, or article for any other purpose.
3: Requests to New Zealand
Preliminary provisions
24: Application of this Part
1: A request for assistance under this Part may be made by—
a: any prescribed foreign country:
b: subject to section 24A and section 24B
c: subject to section 25A
i: that is not a prescribed foreign country or a convention country; or
ii: that is a prescribed foreign country but where the request is not made in that capacity; or
iii: that is a convention country but where the request is not made in that capacity.
2: This section is subject to any regulations made under this Act.
3: Despite subsection (1), no request for assistance under this Part made in accordance with the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances may be dealt with before a date appointed by the Governor-General by Order in Council.
4: An order under subsection (3) is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 24 substituted 1 March 1999 section 3 Mutual Assistance in Criminal Matters Amendment Act 1998 Section 24(1)﻿(b) amended 8 May 1999 section 2 Mutual Assistance in Criminal Matters Amendment Act 1999 Section 24(4) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
24A: Limitations on requests by convention countries
If a convention country requests assistance under this Part in accordance with a convention referred to in column 1 of the table in the Schedule, the request must relate to criminal matters arising from the commission or suspected commission of an offence that, if committed within the jurisdiction of New Zealand, would correspond to an offence listed or described in column 2 of that table in the same row as the reference to the convention. Section 24A substituted 18 June 2002 section 4 Mutual Assistance in Criminal Matters Amendment Act 2002
24B: Further limitations on requests by convention countries
1: The provisions of subsections (2) and (3) apply if—
a: a convention country requests assistance under this Part in accordance with a convention specified in column 1 of the table in the Schedule
b: the convention country is also a prescribed foreign country.
2: In any case where there is a treaty between New Zealand and the convention country that relates (in whole or in part) to the provision of assistance in criminal matters,—
a: the request for assistance must, as far as practicable, be made and dealt with in the manner specified in that treaty, unless (or except to the extent that) to do so would be inconsistent with the convention; and
b: if the treaty excludes any of the offences listed in column 2 of the table in the Schedule
3: In any case where the application of this Part to the convention country is subject to conditions, exceptions, or qualifications as specified in regulations made under section 65 column 2 of the table in the Schedule Section 24B inserted 8 May 1999 section 4 Mutual Assistance in Criminal Matters Amendment Act 1999 Section 24B(1)﻿(a) amended 18 June 2002 section 5(1) Mutual Assistance in Criminal Matters Amendment Act 2002 Section 24B(2)﻿(b) amended 18 June 2002 section 5(2) Mutual Assistance in Criminal Matters Amendment Act 2002 Section 24B(3) amended 18 June 2002 section 5(3) Mutual Assistance in Criminal Matters Amendment Act 2002
25: Requests to be made to Attorney-General
1: Every request by a foreign country for assistance in a criminal matter pursuant to this Part shall be made—
a: to the Attorney-General; or
b: to a person authorised by the Attorney-General, in writing, to receive requests by foreign countries under this Part.
2: Where a request by a foreign country is made to a person authorised under subsection (1)﻿(b), the request shall be taken, for the purposes of this Act, to have been made to the Attorney-General. Mutual Assistance in Criminal Matters Act 1987 s 11(1), (3) (Aust)
25A: Ad hoc requests for assistance
1: This section applies where a foreign country requests assistance under this Part and that country—
a: is not a prescribed foreign country or a convention country; or
b: is a prescribed foreign country but the request is not made in that capacity; or
c: is a convention country but the request is not made in that capacity.
2: If a foreign country requests assistance under this Part, the Attorney-General must consider the following matters in order to decide whether the request should be dealt with under this Part:
a: any assurances given by that country that it will entertain a similar request by New Zealand for assistance in criminal matters:
b: the seriousness of the offence to which the request relates:
c: the object of this Act as specified in section 4
d: any other matters that the Attorney-General considers relevant.
3: If, after considering those matters, the Attorney-General decides that the request should be dealt with under this Part, the Attorney-General may deal with that request accordingly.
4: Nothing in subsection (2) limits section 27 sections 29 to 62 Section 25A inserted 1 March 1999 section 4 Mutual Assistance in Criminal Matters Amendment Act 1998
26: Form of request
Every request by a foreign country for assistance under this Part shall—
a: specify the purpose of the request and the nature of the assistance being sought; and
b: identify the person, agency, or authority that initiated the request; and
ba: specify whether the foreign country is requesting assistance in its capacity as—
i: a prescribed foreign country; or
ii: a convention country; or
iii: a foreign country (other than a prescribed foreign country or a convention country); and
bb: if the foreign country is a convention country and requests assistance in accordance with a convention specified in column 1 of the table in the Schedule
c: be accompanied by—
i: 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 this Act; and
ii: 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
iii: details of the procedure that the foreign country wishes to be followed by New Zealand in giving effect to the request, including details of the manner and form in which any information, document, or thing is to be supplied to the foreign country pursuant to the request; and
iv: a statement setting out the wishes of the foreign country concerning the confidentiality of the request and the reasons for those wishes; and
v: details of the period within which the foreign country wishes the request to be complied with; and
vi: 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
vii: any other information required to be included with the request under a treaty or other arrangement between New Zealand and the foreign country; and
viii: any other information that may assist in giving effect to the request. Mutual Assistance in Criminal Matters Act 1987 s 11(2) (Aust) Section 26(ba) inserted 1 March 1999 section 5 Mutual Assistance in Criminal Matters Amendment Act 1998 Section 26(bb) inserted 1 March 1999 section 5 Mutual Assistance in Criminal Matters Amendment Act 1998 Section 26(bb) amended 18 June 2002 section 6 Mutual Assistance in Criminal Matters Amendment Act 2002
27: Refusal of assistance
1: A request by a foreign country for assistance under this Part shall be refused if, in the opinion of the Attorney-General,—
a: the request relates to the prosecution or punishment of a person for an offence that is, or is by reason of the circumstances in which it is alleged to have been committed or was committed, an offence of a political character; or
ab: the request relates to the bringing of proceedings of the kind described in section 2B(3)
b: there are substantial grounds for believing that the request has been made with a view to prosecuting or punishing a person for an offence of a political character; or
ba: there are substantial grounds for believing that the request has been made with a view to bringing proceedings of the kind described in section 2B(3)
c: there are substantial grounds for believing that the request was made for the purpose of prosecuting, punishing, or otherwise causing prejudice to a person on account of the person’s colour, race, ethnic origin, sex, religion, nationality, or political opinions; or
ca: there are substantial grounds for believing that the request has been made for the purpose of bringing proceedings of the kind described in section 2B(3)
d: the request relates to the prosecution of a person for an offence in a case where the person—
i: has been acquitted, convicted, or pardoned by a competent tribunal or authority; or
ii: has undergone the punishment provided by law,— whether in the foreign country, in New Zealand, or elsewhere, in respect of that offence or of another offence constituted by the same act or omission as that offence; or
e: the request relates to the prosecution or punishment of a person in respect of an act or omission that, if it had occurred in New Zealand, would have constituted an offence under the military law of New Zealand but not also under the ordinary criminal law of New Zealand; or
f: the granting of the request would prejudice the sovereignty, security, or national interests of New Zealand; or
g: in the case of a request made pursuant to section 37 section 38
h: the request is for assistance of a kind that cannot be given under this Act, or would require steps to be taken for its implementation that could not be lawfully taken.
i:
2: Subject to subsections (3) and (4), a request by a foreign country for assistance under this Part may be refused if, in the opinion of the Attorney-General,—
a: the request relates to the prosecution or punishment of a person in respect of conduct that, if it had occurred in New Zealand, would not have constituted an offence against New Zealand law; or
ab: the request relates to proceedings of the kind described in section 2B(3)
b: the request relates to the prosecution or punishment of a person in respect of conduct that occurred, or is alleged to have occurred, outside the foreign country and similar conduct occurring outside New Zealand in similar circumstances would not have constituted an offence against New Zealand law; or
ba: the request relates to proceedings of the kind described in section 2B(3)
bb: the request relates to proceedings of the kind described in section 2B(3)
c: the request relates to the prosecution or punishment of a person in respect of conduct where, if it had occurred in New Zealand at the same time and had constituted an offence against New Zealand law, the person responsible could no longer be prosecuted by reason of lapse of time or for any other reason; or
ca: the request relates to the prosecution or punishment of a person for an offence in respect of which the person may be or has been sentenced to death by the appropriate authority in that requesting country, and that requesting country is unable to sufficiently assure the Attorney-General that—
i: the person will not be sentenced to death; or
ii: if that sentence is or has been imposed, it will not be carried out; or
d: in the case of a request made pursuant to section 38
i: would not be in the public interest; or
ii: would not be in the interests of the person to whom the request relates; or
e: the provision of the assistance requested could prejudice—
i: a criminal investigation or criminal proceeding in New Zealand; or
ii: a proceeding of any kind under the Criminal Proceeds (Recovery) Act 2009 sections 142A to 142Q
f: the provision of the assistance would prejudice, or would be likely to prejudice, the safety of any person (whether that person is in New Zealand or not); or
g: the provision of assistance—
i: would impose an excessive burden on the resources of New Zealand; or
ii: relates to a matter that is trivial in nature; or
h: the request does not comply with the requirements of section 26
3: No request shall be refused solely on the grounds contained in subsection (2)﻿(g) unless—
a: the Attorney-General has first consulted with the Central Authority of the requesting country about the terms and conditions on which the request may be complied with; and
b: the Attorney-General has been unable to reach agreement with the Authority in that regard.
4: No request shall be refused solely on the grounds contained in subsection (2)﻿(h) unless the Attorney-General has first requested further information from the requesting country and that country has failed or refused to provide that information.
5: Subject to subsection (1), the Attorney-General may grant a request even though the request does not comply with the requirements of section 26 Mutual Assistance in Criminal Matters Act 1987 s 8 (Aust) Section 27(1)﻿(ab) inserted 1 December 2009 section 9(1) Mutual Assistance in Criminal Matters Amendment Act 2009 Section 27(1)﻿(ba) inserted 1 December 2009 section 9(2) Mutual Assistance in Criminal Matters Amendment Act 2009 Section 27(1)﻿(ca) inserted 1 December 2009 section 9(3) Mutual Assistance in Criminal Matters Amendment Act 2009 Section 27(1)﻿(i) repealed 1 March 1999 section 9 Mutual Assistance in Criminal Matters Amendment Act 1998 Section 27(2)﻿(ab) inserted 1 December 2009 section 9(4) Mutual Assistance in Criminal Matters Amendment Act 2009 Section 27(2)﻿(ba) inserted 1 December 2009 section 9(5) Mutual Assistance in Criminal Matters Amendment Act 2009 Section 27(2)﻿(bb) inserted 1 December 2009 section 9(5) Mutual Assistance in Criminal Matters Amendment Act 2009 Section 27(2)﻿(ca) inserted 2 September 1996 Mutual Assistance in Criminal Matters Amendment Act 1996 Section 27(2)﻿(e) substituted 1 December 2009 section 9(6) Mutual Assistance in Criminal Matters Amendment Act 2009 Section 27(2)﻿(g) substituted 1 December 2009 section 9(7) Mutual Assistance in Criminal Matters Amendment Act 2009
28: Notification of refusal
If a request by a foreign country for assistance under this Part is refused in whole or in part, notice of the refusal shall be given by the Attorney-General to the Central Authority of the requesting country together with the reasons for the refusal.
29: Assistance may be provided subject to conditions
Assistance under this Part may be provided to a requesting country subject to such conditions as the Attorney-General determines in any particular case or class of cases. Mutual Assistance in Criminal Matters Act 1987 s 9 (Aust) Assistance in locating or identifying persons
30: Assistance in locating or identifying persons
1: A
2: Where, on receipt of a request made under subsection (1) by a foreign country, the Attorney-General is satisfied—
a: that the request relates to a criminal matter in the foreign country; and
b: that there are reasonable grounds for believing that the person to whom the request relates—
i: is or might be concerned in, or could give or provide evidence or assistance relevant to, the criminal matter; and
ii: is in New Zealand,— the Attorney-General may authorise, in writing, assistance in accordance with this section.
3: Where, in relation to a request made under subsection (1), the Attorney-General authorises assistance in accordance with this section, the Attorney-General shall forward the request to the appropriate agency in New Zealand, and that agency shall use its best endeavours to locate or, as the case may be, identify and locate the person to whom the request relates, and shall advise the Attorney-General of the outcome of those endeavours.
4: On receipt of such advice, the Attorney-General shall inform the requesting country of the result of the inquiries made pursuant to the request. Section 30(1) amended 1 March 1999 section 9 Mutual Assistance in Criminal Matters Amendment Act 1998 Assistance in obtaining evidence in New Zealand
31: Assistance in obtaining evidence in New Zealand
1: A foreign country may request the Attorney-General to assist in arranging—
a: the taking of evidence in New Zealand; or
b: the production of documents or other articles in New Zealand; or
c: the undertaking of a forensic comparison under the Criminal Investigations (Bodily Samples) Act 1995
2: The Attorney-General may, in writing, authorise the requested assistance if,—
a: in the case of receipt of a request made under subsection (1)﻿(a) or (b) by a foreign country, the Attorney-General is satisfied that—
i: the request relates to criminal proceedings in the foreign country; and
ii: there are reasonable grounds for believing that the evidence can be taken or the documents or other articles can be produced in New Zealand:
b: in the case of receipt of a request made under subsection (1)﻿(c) by a foreign country, the Attorney-General is satisfied that—
i: the request relates to a criminal matter in the foreign country; and
ii: the request is in respect of an offence that corresponds to an offence in New Zealand that is punishable by a term of imprisonment of more than 1 year.
3: If, under subsection (2), the Attorney-General authorises—
a: the taking of evidence, a Judge may, subject to sections 32 33
i: cause the evidence to be put in writing and certify, in the prescribed form, that the evidence was taken by the Judge; and
ii: cause the writing to be sent to the Attorney-General:
b: the production of documents or other articles, a Judge may, subject to sections 32 33 Section 31 replaced 4 February 2016 section 4 Mutual Assistance in Criminal Matters Amendment Act 2015
32: Further provisions relating to obtaining evidence
1: Subject to section 33 section 31
2: Where, pursuant to section 31 Mutual Assistance in Criminal Matters Act 1987 s 13(6) (Aust)
33: Protection of witnesses
1: For the purposes of section 31
2: No person who is required, pursuant to section 31
3: A duly authenticated foreign law immunity certificate is admissible, for the purposes of subsection (2), as prima facie evidence of the matters stated in the certificate.
4: Every person who is required, pursuant to section 31 Mutual Assistance in Criminal Matters Act 1987 s 13(7)–(9) (Aust)
34: Certain persons entitled to appear and be legally represented at proceedings
1: The following persons may appear, and may be represented by counsel, at any hearing held under subsection (3) of section 31
a: the person to whom the proceedings in the foreign country relate:
b: any other person giving evidence or producing documents or other articles at the hearing:
c: the relevant authority of the foreign country.
2: The certificate by the Judge under section 31(3)﻿(a) Mutual Assistance in Criminal Matters Act 1987 s 13(4), (5) (Aust)
35: Powers of Judge may be exercised by Registrar
1: Any Judge may authorise a Registrar of the High Court to exercise the powers of a Judge under section 31
2: Any authorisation given under subsection (1) may be revoked at any time by any Judge.
3: Where any matter in respect of which he or she has jurisdiction under any authorisation given under subsection (1) appears to the Registrar to be one of special difficulty, he or she may refer the matter to a Judge, who may dispose of the matter or may refer it back to the Registrar with such directions as the Judge thinks fit.
4: Nothing in this section shall prevent the exercise, by any Judge, of any jurisdiction or powers conferred on any Registrar under this section. 1908 No 56 s 48B 1962 No 34 s 4
36: Evidence Act 2006 not affected
Nothing in this Act limits or affects the Evidence Act 2006 Section 36 substituted 1 August 2007 section 216 Evidence Act 2006 Assistance in obtaining attendance of persons in foreign country
37: Assistance in arranging attendance of person to
give or provide evidence or assistance in relation to criminal matter
1: A section 38
2: Where, on receipt of a request made under subsection (1) by a foreign country, the Attorney-General is satisfied—
a: that the request relates to a criminal matter in the foreign country; and
b: that there are reasonable grounds for believing that the person concerned could give or provide evidence or assistance relevant to that criminal matter; and
c: that the person concerned has freely consented to attend as requested; and
d: that the foreign country has given adequate undertakings in respect of the matters specified in paragraphs (a), (b), (c), and (e) of section 39 the Attorney-General may authorise, in writing, assistance in accordance with this section, and may assist in the making of arrangements to facilitate that attendance. Mutual Assistance in Criminal Matters Act 1987 ss 26, 27 (Aust) Section 37 heading amended 18 June 2002 section 7 Mutual Assistance in Criminal Matters Amendment Act 2002 Section 37(1) amended 1 March 1999 section 9 Mutual Assistance in Criminal Matters Amendment Act 1998
38: Assistance in arranging attendance of prisoner
in foreign country for specified purposes
1: A for either or both of the purposes specified in subsection (1A),
a: a prisoner; or
b: on parole, home detention, or compassionate release, or is subject to release conditions, under Part 1
ba: subject to a sentence of home detention imposed under section 80A
c:
d: at large pursuant to section 62
e: subject to a community-based sentence (within the meaning of section 4(1)
1A: The purposes referred to in subsection (1) are—
a: for giving evidence in relation to any criminal proceedings in the foreign country:
b: for assistance in relation to a criminal matter in respect of a foreign serious offence.
2: The Attorney-General may authorise, in writing, assistance in accordance with this section if, on receipt of a request under subsection (1) by a foreign country, the Attorney-General is satisfied—
a: that the request relates to the attendance of the person concerned in connection with a criminal matter in the foreign country; and
b: that there are reasonable grounds for believing that the person concerned could give or provide evidence or assistance relevant to that criminal matter; and
c: that the person concerned has freely consented to attend as requested; and
d: that the foreign country has given adequate undertakings in respect of the matters specified in section 39
3: Where assistance is authorised in accordance with subsection (2), the Attorney-General may,—
a: in the case of a person who is a prisoner, direct that the prisoner be released from the prison constable
b: in the case of any other person, approve and arrange the travel of the person to the foreign country to give evidence at the hearing, and may obtain such approvals, authorities, and permissions as are required for the purpose, including the variation, discharge, or suspension of the conditions of the person’s release, or the variation, cancellation, or suspension of the person’s sentence, or of the conditions of the person’s sentence.
4: A direction given, pursuant to subsection (3)﻿(a), by the Attorney-General in respect of a prisoner shall be sufficient authority for the release of the prisoner from the prison in which he or she is detained for the purposes of the direction.
5: Every person released under a direction given pursuant to subsection (3)﻿(a) shall, while that person is in New Zealand during the period of that release, be deemed, for the purposes of section 120 person in whose custody he or she was when in the prison Mutual Assistance in Criminal Matters Act 1987 s 26 (Aust) Section 38 heading amended 18 June 2002 section 8(1) Mutual Assistance in Criminal Matters Amendment Act 2002 Section 38(1) amended 18 June 2002 section 8(2) Mutual Assistance in Criminal Matters Amendment Act 2002 Section 38(1) amended 1 March 1999 section 9 Mutual Assistance in Criminal Matters Amendment Act 1998 Section 38(1)﻿(b) substituted 30 June 2002 section 125 Parole Act 2002 Section 38(1)﻿(ba) inserted 1 October 2007 section 58 Sentencing Amendment Act 2007 Section 38(1)﻿(c) repealed 30 June 2002 section 125 Parole Act 2002 Section 38(1)﻿(d) amended 1 June 2005 section 206 Corrections Act 2004 Section 38(1)﻿(e) substituted 18 June 2002 section 8(3) Mutual Assistance in Criminal Matters Amendment Act 2002 Section 38(1A) inserted 18 June 2002 section 8(4) Mutual Assistance in Criminal Matters Amendment Act 2002 Section 38(2) substituted 18 June 2002 section 8(5) Mutual Assistance in Criminal Matters Amendment Act 2002 Section 38(3)﻿(a) amended 1 October 2008 section 116(a)﻿(ii) Policing Act 2008 Section 38(3)﻿(a) amended 1 June 2005 section 206 Corrections Act 2004 Section 38(5) amended 1 June 2005 section 206 Corrections Act 2004
39: Undertakings required from foreign country
Where, pursuant to section 37 section 38
a: that the person to whom the request relates shall not—
i: be detained, prosecuted, or punished for any offence against the law of the foreign country that is alleged to have been committed, or that was committed, before the person’s departure from New Zealand , other than an offence in respect of which the Attorney-General consents to the person’s being so detained, prosecuted, or punished
ii: be subjected to any civil proceedings in respect of any act or omission of the person that is alleged to have occurred, or that occurred, before the person’s departure from New Zealand, being civil proceedings to which that person could not be subjected if the person were not in the foreign country; or
iii: be required to give or provide evidence or assistance in respect of any criminal matter in the foreign country other than the matter to which the request relates— unless the person has left the foreign country, or has had the opportunity of leaving the foreign country and has remained in that country otherwise than for the purpose of giving or providing evidence or assistance in respect of the matter to which the request relates:
b: that any evidence given by the person in the criminal proceedings to which the request relates shall be inadmissible or otherwise disqualified from use in the prosecution of the person for an offence against a law of the foreign country other than the offence of perjury in relation to the giving of that evidence:
c: that the person will be returned to New Zealand in accordance with arrangements agreed by the Attorney-General as soon as practicable after giving the evidence:
d: in a case where the request relates to a person who is a prisoner in New Zealand and the Attorney-General requests the foreign country to make arrangements for the keeping of the person in custody while the person is in the foreign country,—
i: that appropriate arrangements will be made for that purpose; and
ii: that the person will not be released from custody in the foreign country without the prior approval of the Attorney-General; and
iii: if the person is released in the foreign country, at the request of the Attorney-General, before the completion of the proceedings to which the request relates, that the person’s accommodation and expenses will be met by the foreign country:
e: such other matters (if any) as the Attorney-General thinks appropriate. Mutual Assistance in Criminal Matters Act 1987 s 26(3) (Aust) Section 39(a)﻿(i) amended 18 June 2002 section 9 Mutual Assistance in Criminal Matters Amendment Act 2002
40: Penalty not to be imposed for refusal to consent
Where, pursuant to section 37 section 38
41: Effect of removal to foreign country on prisoner’s term of imprisonment
Where a prisoner who is serving a term of imprisonment for an offence against the law of New Zealand is released from a New Zealand prison section 38 Mutual Assistance in Criminal Matters Act 1987 s 28 (Aust) Section 41 amended 1 June 2005 section 206 Corrections Act 2004
41A: Effect of transfer to foreign country pursuant to request under section 38 on remand prisoner’s sentence
1: If a prisoner who is charged with or convicted of an offence against the law of New Zealand (the New Zealand offence section 38 section 41B section 90
2: Nothing in this section affects section 41 Section 41A inserted 18 June 2002 section 10 Mutual Assistance in Criminal Matters Amendment Act 2002
41B: Information about time remand prisoner spent in custody overseas pursuant to request under section 38
1: If a prisoner who is charged with or convicted of an offence against the law of New Zealand (the New Zealand offence section 38
2: A certificate obtained under subsection (1) is presumed to be accurate, unless the contrary is proved.
3: The Attorney-General may issue a certificate setting out the date and period referred to in subsection (1) if—
a: the foreign country does not provide a certificate within a reasonable time after the Attorney-General makes a request under subsection (1); and
b: the Attorney-General is satisfied from the information that the Attorney-General has that an accurate calculation can be made of the period referred to in subsection (1).
4: For the purposes of section 91(4A)
5: Subsection (6) applies if, after the Attorney-General has given a certificate under subsection (3),—
a: a certificate requested under subsection (1) is obtained from the foreign country; and
b: the period specified in that certificate is different from that specified in the Attorney-General’s certificate.
6: If this subsection applies, the new certificate is a substitute certificate for the purposes of section 91(4A) Section 41B inserted 18 June 2002 section 10 Mutual Assistance in Criminal Matters Amendment Act 2002
42: Custody of persons in transit
1: A person who is in custody in one foreign country and has consented to give evidence in criminal proceedings, or to give assistance in relation to a criminal investigation, in another foreign country may be transported through New Zealand, in custody, to that other foreign country.
2:
3: Where—
a: a person is being held in custody pursuant to a direction under subsection (2); and
b: the person’s transportation is not, in the opinion of the Attorney-General, continued within a reasonable time,— the Attorney-General may direct, in writing, that the person be transported in custody to the country from which the person was first transported, and such a direction shall be sufficient authority for that person’s removal from New Zealand by such means as the Attorney-General directs.
4: Section 15(3)
5: For the purposes of enabling the grant of a temporary visa under the Immigration Act 2009
6: The Attorney-General may, at any time, by notice in writing, cancel any certificate issued under subsection (5) in respect of any person who is in New Zealand for the purposes of being transported through New Zealand pursuant to this section if the Attorney-General is satisfied that that person’s presence in New Zealand is no longer necessary for that purpose. Mutual Assistance in Criminal Matters Act 1987 s 29 (Aust) Section 42(2) amended 1 March 1999 section 9 Mutual Assistance in Criminal Matters Amendment Act 1998 Section 42(5) amended 29 November 2010 section 406(1) Immigration Act 2009 Search warrants
43: Assistance in obtaining article or thing by search and seizure
1: A
2: Where, on receipt of a request made under subsection (1) by a foreign country, the Attorney-General is satisfied—
a: that the request relates to a criminal matter in that foreign country in respect of an offence punishable by imprisonment for a term of 2 years or more; and
b: that there are reasonable grounds for believing that an article or thing relevant to the proceedings is located in New Zealand,— the Attorney-General may authorise a constable to apply to an issuing officer (within the meaning of section 3 section 44 Mutual Assistance in Criminal Matters Act 1987 s 15(1) (Aust) Section 43(1) amended 1 March 1999 section 9 Mutual Assistance in Criminal Matters Amendment Act 1998 Section 43(2) amended 1 October 2012 section 335(2) Search and Surveillance Act 2012 Section 43(2) amended 1 October 2008 section 116(a)﻿(ii) Policing Act 2008
44: Search warrants
1: An issuing officer who, on an application made in the manner provided in subpart 3
a: any thing upon or in respect of which any offence under the law of a foreign country punishable by imprisonment for a term of 2 years or more has been, or is suspected of having been, committed; or
b: any thing which there are reasonable grounds for believing will be evidence as to the commission of any such offence; or
c: any thing which there are reasonable grounds for believing is intended to be used for the purpose of committing any such offence— may issue a search warrant in respect of that thing.
2: An application for a warrant under subsection (1) may be made only by a constable section 43(2)
3: The provisions of Part 4 subpart 6 Section 44(1) amended 1 October 2012 section 335(3) Search and Surveillance Act 2012 Section 44(2) amended 1 October 2008 section 116(a)﻿(ii) Policing Act 2008 Section 44(3) inserted 1 October 2012 section 335(4) Search and Surveillance Act 2012
45: Form and content of search warrant
Section 45 repealed 1 October 2012 section 335(5) Search and Surveillance Act 2012
46: Powers conferred by warrant
Section 46 repealed 1 October 2012 section 335(5) Search and Surveillance Act 2012
46A: Power to stop vehicles
Section 46A repealed 1 October 2012 section 335(5) Search and Surveillance Act 2012
47: Person executing warrant to produce evidence of authority
Section 47 repealed 1 October 2012 section 335(5) Search and Surveillance Act 2012
48: Notice of execution of warrant
Section 48 repealed 1 October 2012 section 335(5) Search and Surveillance Act 2012
49: Custody and disposal of things seized
1: Where any constable section 44 constable
2: Where a thing is delivered into the custody of the Commissioner of Police under subsection (1), the Commissioner of Police shall arrange for the thing to be kept for a period not exceeding 1 month from the day on which the thing was seized pending a direction in writing from the Attorney-General as to the manner in which the thing is to be dealt with (which may include a direction that the thing be sent to an appropriate authority of a foreign country).
3: Where, before the expiry of the period referred to in subsection (2), the Attorney-General gives a direction in respect of the thing, the thing shall be dealt with in accordance with the direction.
4: If no direction is given by the Attorney-General before the expiry of the period referred to in subsection (2), the Commissioner of Police shall arrange for the thing to be returned to the person from whose possession it was seized as soon as practicable after that period has expired. Section 49(1) amended 1 October 2008 section 116(a)﻿(ii) Policing Act 2008
50: Attorney-General to provide certificate as to search and seizure
Where, pursuant to a request made under section 43 section 44 Assistance in arranging service of process
51: Assistance in arranging service
1: A
2: Where, on receipt of a request made under subsection (1) by a foreign country, the Attorney-General is satisfied—
a: that the request relates to a criminal matter in the foreign country; and
b: that there are reasonable grounds for believing that the person to be served is in New Zealand; and
c: where the request relates to the service of a summons to appear as a witness in the foreign country, that the foreign country has given an adequate undertaking in respect of the matters specified in section 52 the Attorney-General may authorise assistance in accordance with this section.
3: Where service is authorised under subsection (2), the Attorney-General shall direct the appropriate authority to arrange service, and in such a case the authority shall—
a: use its best endeavours to have the process served—
i: in accordance with procedures proposed in the request; or
ii: if those procedures would be unlawful or inappropriate in New Zealand, or if no procedures are so proposed, in accordance with the law of New Zealand; and
b: if the document—
i: is served, transmit to the Attorney-General for transmission to the foreign country making the request a certificate as to service; or
ii: is not served, transmit to the Attorney-General for transmission to the foreign country a statement of the reasons which prevented the service. Mutual Assistance in Criminal Matters Act 1987 s 38 (Aust) Section 51(1) amended 1 March 1999 section 9 Mutual Assistance in Criminal Matters Amendment Act 1998
52: Undertaking required from foreign country
Where, pursuant to section 51
53: Penalty not to be imposed for failure to comply with summons
Where, pursuant to section 51 Requests to enforce foreign restraining orders and foreign forfeiture orders Heading substituted 1 December 2009 section 10 Mutual Assistance in Criminal Matters Amendment Act 2009
54: Request to enforce foreign restraining order
1: A foreign country may request the Attorney-General to assist in enforcing a foreign restraining order that relates to property that is believed to be located in New Zealand.
2: The Attorney-General may authorise the Commissioner to apply to the High Court to register a foreign restraining order in New Zealand if satisfied—
a: that the request from the foreign country relates to—
i: tainted property (as defined in relation to Part 3
ii: property of a person who has unlawfully benefited from significant foreign criminal activity; or
iii: an instrument of crime (as defined in relation to Part 3
iv: property that will satisfy some or all of a foreign pecuniary penalty order; and
b: that there are reasonable grounds to believe some or all of the property that is able to be restrained under the foreign restraining order is located in New Zealand.
3: An authority issued under subsection (2) must be in writing. Section 54 substituted 1 December 2009 section 10 Mutual Assistance in Criminal Matters Amendment Act 2009
55: Request to enforce foreign forfeiture order
1: A foreign country may request the Attorney-General to assist in enforcing a foreign forfeiture order that relates to property that is reasonably believed to be located in New Zealand.
2: The Attorney-General may authorise the Commissioner to apply to the High Court to register the foreign forfeiture order in New Zealand if satisfied—
a: that the request from the foreign country relates to property that may be forfeited under the foreign forfeiture order and is specific property that—
i: is tainted property (as defined in relation to Part 3
ii: belongs to a person who has unlawfully benefited from significant foreign criminal activity; or
iii: is an instrument of crime (as defined in relation to Part 3
iv: will satisfy some or all of a foreign pecuniary penalty order; and
b: that there are reasonable grounds to believe that some or all of the property to which the order relates is located in New Zealand.
3: An authority issued under subsection (2) must be in writing. Section 55 substituted 1 December 2009 section 10 Mutual Assistance in Criminal Matters Amendment Act 2009
56: Method for registering foreign orders in New Zealand
1: If the High Court is satisfied that a foreign order that the Commissioner has applied to register under section 54 55
3: A foreign order, or an amendment to a foreign order (an amendment
a: a copy of the foreign order or amendment sealed by the court or other judicial authority who made it; or
b: a copy of the foreign order or amendment authenticated in accordance with section 63
4: A copy of an amendment (whether made before or after registration) may be registered in the same way as a foreign order.
5: A foreign order or an amendment to a foreign order does not have effect under this Act or the Criminal Proceeds (Recovery) Act 2009
6: An exact copy of a sealed or authenticated copy of a foreign order or an amendment must for the purposes of this Act be treated as if it is the sealed or authenticated copy.
7: However, registration of an exact copy ceases to have effect on the expiry of the period of 21 days commencing on the date of registration unless, before the expiry of that period, the sealed or authenticated copy is registered. Section 56 substituted 1 December 2009 section 10 Mutual Assistance in Criminal Matters Amendment Act 2009
57: Effect of registering foreign orders in New Zealand
1: A foreign restraining order registered in New Zealand under section 56
a: made by the High Court under the Criminal Proceeds (Recovery) Act 2009
b: entered on the date it is registered.
2: Subsection (1) is subject to sections 136 to 139
3: A foreign forfeiture order registered in New Zealand under section 56
a: made by the High Court under the Criminal Proceeds (Recovery) Act 2009
b: entered on the date it is registered.
4: Subsection (3) is subject to sections 140 to 149 Section 57 substituted 1 December 2009 section 10 Mutual Assistance in Criminal Matters Amendment Act 2009
58: Cancelling registration of foreign orders in New Zealand
1: The Attorney-General may at any time direct the Commissioner to apply to the High Court to cancel the registration in New Zealand of—
a: a foreign restraining order; or
b: a foreign forfeiture order.
2: Without limiting subsection (1), the Attorney-General may give a direction of that kind if the Attorney-General is satisfied—
a: that the order has, since being registered in New Zealand, ceased to have effect in the foreign country in which it was made; or
b: that cancelling the order is appropriate having regard to arrangements entered into between New Zealand and the foreign country in relation to the enforcing of orders of that kind; or
c: that the registration of the order in New Zealand contravened section 56
d:
e: that, after consultation with the foreign country where the order was made, it is desirable that the registration of the foreign order be cancelled; or
f: that the foreign order has been discharged, wholly or in part.
3: The High Court must cancel the registration of a foreign order in New Zealand if the Commissioner applies, under a direction under subsection (1), to the High Court to cancel the registration. Section 58 substituted 1 December 2009 section 10 Mutual Assistance in Criminal Matters Amendment Act 2009 Section 58(2)﻿(d) repealed 25 February 2012 section 4 Mutual Assistance in Criminal Matters Amendment Act 2012 Requests by foreign countries for orders or warrants in New Zealand Heading substituted 1 December 2009 section 10 Mutual Assistance in Criminal Matters Amendment Act 2009
59: Request for search warrant in New Zealand
1: A foreign country may request the Attorney-General to obtain the issue of a search warrant in New Zealand in respect of a criminal investigation or criminal proceedings relating to—
a: tainted property (as defined in relation to Part 3
b: property that belongs to a person who has unlawfully benefited from significant foreign criminal activity; or
c: an instrument of crime (as defined in relation to Part 3
d: property that will satisfy some or all of a foreign pecuniary penalty order.
2: After a request is made, the Attorney-General may, if satisfied of the matters in subsection (3), do any of the following:
a: authorise a constable section 124 section 101
b: authorise the Commissioner to apply under section 125 section 102
c: authorise the Official Assignee to apply under section 126 section 110
3: The matters referred to in subsection (2) are—
a: that the request relates to a criminal investigation or criminal proceedings relating to—
i: tainted property (as defined in relation to Part 3
ii: property that belongs to a person who has unlawfully benefited from significant foreign criminal activity; or
iii: an instrument of crime (as defined in relation to Part 3
iv: property that will satisfy some or all of a foreign pecuniary penalty order; and
b: that there are reasonable grounds for believing the property is located in New Zealand. Section 59 substituted 1 December 2009 section 10 Mutual Assistance in Criminal Matters Amendment Act 2009
60: Interim foreign restraining order
1: A foreign country may request the Attorney-General to obtain the issue of an interim foreign restraining order in respect of property that is believed to be located in New Zealand.
2: After a request is made, the Attorney-General may authorise the Commissioner to make an application under section 128
a: there is a criminal investigation in relation to—
i: tainted property (as defined in relation to Part 3
ii: property that belongs to a person who has unlawfully benefited from significant foreign criminal activity; or
iii: an instrument of crime (as defined in relation to Part 3
iv: property that will satisfy some or all of a foreign pecuniary penalty order; and
b: there are reasonable grounds to believe all or part of the property to which the criminal investigation relates is located in New Zealand. Section 60 substituted 1 December 2009 section 10 Mutual Assistance in Criminal Matters Amendment Act 2009
61: Request for production order in New Zealand
1: A foreign country may request the Attorney-General to make an application for a production order in New Zealand.
2: After a request is made, the Attorney-General may authorise the Commissioner to make an application to a Judge under section 104
a: the request relates to a criminal investigation that relates to—
i: tainted property (as defined in relation to Part 3
ii: property that belongs to a person who has unlawfully benefited from significant foreign criminal activity; or
iii: an instrument of crime (as defined in relation to Part 3
iv: property that will satisfy some or all of a foreign pecuniary penalty order; and
b: there are reasonable grounds to believe that all or part of the property to which the criminal investigation relates is located in New Zealand. Section 61 substituted 1 December 2009 section 10 Mutual Assistance in Criminal Matters Amendment Act 2009
62: Request for examination order in New Zealand
1: A foreign country may request the Attorney-General to make an application for the issue of an examination order in New Zealand.
2: After a request is made, the Attorney-General may authorise the Commissioner to make an application under section 106
a: that the request relates to a criminal investigation that relates to—
i: tainted property (as defined in relation to Part 3
ii: property that belongs to a person who has unlawfully benefited from significant foreign criminal activity; or
iii: an instrument of crime (as defined in relation to Part 3
iv: property that will satisfy some or all of a foreign pecuniary penalty order; and
b: that there are reasonable grounds to believe that all or part of the property to which the criminal investigation relates is located in New Zealand. Section 62 substituted 1 December 2009 section 10 Mutual Assistance in Criminal Matters Amendment Act 2009
4: Miscellaneous provisions
63: Authentication of documents
1: Subject to section 23
2: A document is duly authenticated for the purposes of subsection (1) if—
a: it purports to be signed or certified by a Judge, Magistrate, or official in or of a foreign country; and
b: either—
i: it is verified by the oath of a witness, or of an official of the Government of a foreign country; or
ii: it purports to be sealed with an official or public seal of the foreign country or of a Minister of State, or of a department or official of the Government, of a foreign country.
3: Nothing in this section prevents the proof of any matter, or the admission in evidence of any document, in accordance with any other law of New Zealand. Mutual Assistance in Criminal Matters Act 1987 s 43 (Aust)
64: Certificates given by Attorney-General
1: Where the Attorney-General receives a request made pursuant to this Act, the Attorney-General may give a certificate, in the prescribed form, certifying all or any of the following facts:
a: that a request for assistance under this Act has been made by a foreign country:
b: that the request meets the requirements of this Act:
c: that the acceptance of the request has been duly made under and in accordance with this Act.
2: In any proceedings under this Act, or any proceedings under or pursuant to the Criminal Proceeds (Recovery) Act 2009 Section 64(2) amended 1 December 2009 section 11 Mutual Assistance in Criminal Matters Amendment Act 2009
64A: Certificates relating to convention countries
1: For the purposes of Part 3 referred to in column 1 of the table in the Schedule
2: The court or person acting judicially to whom any certificate under subsection (1) is produced must take judicial notice of the signature of the Secretary of Foreign Affairs and Trade. Section 64A inserted 1 March 1999 section 6 Mutual Assistance in Criminal Matters Amendment Act 1998 Secion 64A(1) amended 18 June 2002 section 12 Mutual Assistance in Criminal Matters Amendment Act 2002
64B: Amendment of Schedule 1
Section 64B repealed 18 June 2002 section 13 Mutual Assistance in Criminal Matters Amendment Act 2002
65: Regulations
1: The Governor-General may from time to time, by Order in Council, make regulations for all or any of the following purposes:
a: declaring a country to be a foreign country to which Part 3
b: prescribing the forms of applications, notices, certificates, and other documents for the purposes of this Act, and requiring the use of such forms:
c: prescribing the procedure to be followed in dealing with requests made under this Act, and providing for notification of the results of action taken pursuant to any such request:
d: prescribing the procedures for obtaining evidence, or producing documents or articles, pursuant to a request made under section 31
e: providing for the payment of fees, travelling allowances, and expenses to any person in New Zealand who gives or provides evidence or assistance pursuant to a request made under this Act:
f: prescribing conditions for the protection of any property sent to or by a foreign country pursuant to a request made under this Act; and making provision for the return of property in New Zealand pursuant to a request:
g: providing for such other matters as are contemplated by or are necessary for giving full effect to this Act and for its due administration.
2: Regulations made pursuant to subsection (1)﻿(a) may state that the application of Part 3
a: be subject to such conditions, exceptions, or qualifications as are specified in the regulations:
b: be subject to such limitations, conditions, exceptions, or qualifications as are necessary to give effect to a treaty between New Zealand and that country and relating (in whole or in part) to the provision of assistance in criminal matters, being a treaty a copy of which is set out in the regulations.
3: Regulations under this section are secondary legislation ( see Part 3 Mutual Assistance in Criminal Matters Act 1987 s 44 (Aust) The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 65(1)﻿(a) substituted 1 March 1999 section 7 Mutual Assistance in Criminal Matters Amendment Act 1998 Section 65(3) inserted 28 October 2021 section 3 Secondary Legislation Act 2021