International treaty examination of the New Zealand People's Republic of China Treaty on Mutual Legal Assistance in Criminal Matters Report of the Law and Order Committee The Law and Order Committee has conducted an international treaty examination of the New Zealand People's Republic of China Treaty on Mutual Legal Assistance in Criminal Matters and has no matters to bring to the attention of the House. We note that similar treaties have been signed with both the Hong Kong Special Administrative Region and the Republic of Korea, which have operated effectively for a number of years. The national interest analysis for the treaty is appended to this report. Martin Gallagher Chairperson
New Zealand People's Republic of China Treaty on Mutual Legal Assistance in Criminal Matters National Interest Analysis Date of Proposed Binding Treaty Action 1 Officials from New Zealand and the People s Republic of China drafted a Treaty between New Zealand and the People s Republic of China on Mutual Legal Assistance in Criminal Matters ( the Treaty ) on 18 March 2005. Article 22 of the Treaty specifies that it will enter into force 30 days after each country has notified the other that its processes for the implementation of the Treaty have been completed. Following completion of the parliamentary treaty examination process and the implementation of the necessary regulation, it is proposed that this be done by February 2007. Reasons for New Zealand to Become Party to the Treaty 2 There have been a number of recent cases where New Zealand has sought Chinese assistance in criminal proceedings. In the absence of a treaty, the New Zealand authorities seeking assistance have relied on the ad hoc procedures set out in the Mutual Assistance in Criminal Matters Act 1992 ( the Act ) and the cooperation of Chinese authorities pursuant to their legislation. 3 There have also been recent cases where China has sought New Zealand s assistance in respect of criminal investigations and proceedings. In accordance with the Act, New Zealand has been able to provide assistance to China. 4 The Act allows New Zealand to provide assistance on an ad hoc basis, or through the prescription of a foreign country under the Act. Countries are prescribed on the basis of general reciprocity of treatment. This reciprocity is determined either through an examination of the other country s laws, or through the more formal process of concluding a non-binding arrangement or an agreement of treaty status. 5 It is clear therefore that New Zealand does not require a bilateral treaty with China in order to make requests to China or in order for New Zealand authorities to provide assistance to China. However, a bilateral treaty would allow for greater cooperation between the competent authorities of the two countries and would also provide a clear basis for requesting and receiving the assistance of the Chinese authorities. 6 A bilateral treaty would also set the parameters for requests by the parties. Should New Zealand become a party to the Treaty, it will provide both sides with an expectation that certain types of assistance can be expected and will also help to ensure that all relevant information is made available to the requested country to allow it to execute the request. 7 In addition, given the significant number of Chinese people now travelling to and studying in New Zealand, there may be an increase in criminal cases involving Chinese nationals or with a Chinese connection and accordingly where the assistance of the Chinese authorities may help to resolve a criminal matter. 2
8 The size and reach of China also means that it is likely to receive a very large number of requests for assistance in criminal matters. The entry into force of the Treaty will assist in ensuring that requests from New Zealand are afforded at least the same level of attention as other countries with which China has mutual assistance treaties. China, like most Asian countries, prefers to operate under a bilateral mutual assistance treaty. China has 28 mutual assistance treaties. 9 Entering into the Treaty will also provide a foundation for future cooperation between law enforcement authorities in the two countries and will provide an opportunity for New Zealand and China to gain a more thorough understanding of the other s judicial system. It is also expected that entry into force of the Treaty would lead to increased cooperation between the law enforcement authorities of both countries. Advantages and Disadvantages of New Zealand Becoming a Party to the Treaty 10 As outlined above, the entry into force of the Treaty would allow for greater cooperation between the competent authorities of New Zealand and China and would also provide a clear basis for requesting and receiving the assistance of the Chinese authorities. This greater cooperation would not only be between Police but also between customs officials in both countries who can utilise the Treaty in some circumstances to seek assistance with the investigation of offences against the Customs and Excise Act and Misuse of Drugs Act. This would enhance the co-operation that already exists under the non-binding arrangement with China Customs to co-operate on Customs matters. 11 Importantly, having such a Treaty between New Zealand and China in force would also ensure that New Zealand s requests to Chinese authorities for assistance in criminal matters are afforded at least the same level of attention as requests from other countries with which China has mutual legal assistance treaties. This is becoming increasingly important given the number of New Zealanders travelling to China and vice versa. 12 The entry into force of the Treaty will also strengthen New Zealand China relations and provide a stable foundation for further cooperation between law enforcement authorities. 13 The entry into force of the Treaty ensures that New Zealand retains the right to refuse to provide assistance as set out in paragraphs 16 and 17. 14 It is not considered that entering into the Treaty would disadvantage New Zealand. Obligations 15 Under Article 1 of the Treaty, New Zealand would be required to grant China assistance in the investigation and prosecution of criminal offences and in other proceedings relating to criminal matters, including taking evidence in court, executing search warrants and recovery and forfeiture of proceeds of crime. All forms of assistance permitted under New Zealand legislation would be able to be provided, including: the taking of evidence or statements; providing information, documents or records; locating or identifying persons; serving documents; executing requests for search and seizure; making arrangements for persons to give evidence or assist in criminal investigations; tracing, 3
restraining, forfeiting and confiscating the proceeds and instrumentalities of criminal activities and exchanging information on law. 16 In accordance with the Treaty, either party could however refuse to provide assistance if the request: i ii iii iv v vi relates to acts or omissions which would not have constituted an offence if they had occurred in the country from which the assistance is sought; relates to an offence of a military or political character; is made for the purpose of prosecuting or punishing an individual on the grounds of race, sex, religion, nationality or political opinions, or that that person s position may be prejudiced for any of those reasons; relates to an offence for which the Requested Party is in the process of or has terminated criminal proceedings or has already rendered a final judgement against the same person for the same offence as to which the request relates; lacks substantial connection with the case; or would impair the country s sovereignty, security, or public order, or is contrary to the country s essential interests. 17 A request could also be refused where execution of the request would be contrary to fundamental principles of the Requested Party s national law. Provision of assistance could also be postponed if it would interfere with an investigation or prosecution taking place in the requested country. 18 The Treaty provides that as a general rule, costs will be borne by the country providing the assistance. However there are certain exceptions to this rule, and where exceptional costs are involved the parties will consult to decide how these will be covered. Where proceeds of crime were recovered pursuant to a request for assistance, the Requesting Party could request the transfer of all or part of the proceeds or instruments of crime, in accordance with the national laws of the Requested Party and any agreement reached between the parties. 19 The Treaty would not prevent either Party from providing assistance to the other in accordance with other applicable international agreements or its national laws. Economic, Social, Cultural and Environmental Effects 20 There would be no negative economic, social, cultural and environmental impacts associated with entering in to the Treaty. 21 There would not appear to be particular implications of the proposed treaty action for either Maori interests. However, the Treaty does give rise to some human rights issues in the context of New Zealand s position on the death penalty. 22 The Abolition of the Death Penalty Act was enacted in part to implement New Zealand s obligations under the Second Optional Protocol to the International Covenant 4
on Civil and Political Rights. The Protocol does not include any prohibition (or in fact any provision) on the providing of assistance in death penalty cases. However, Parties to the Protocol have undertaken an international commitment to abolish the death penalty. 23 Consistent with this international obligation, Article 3 of the Treaty allows either party to refuse to provide assistance where execution of a request is contrary to fundamental principles of the Requested Party s national law. A minute of the Treaty negotiations records that the fundamental principles of New Zealand s national law include that a person should not be subject to the death penalty. Costs 24 There would be no cost to New Zealand of the Treaty entering into force. Future Protocols 25 There is no provision in the Treaty that allows for amendments. Implementation 26 Regulations will be required declaring the People s Republic of China a prescribed foreign country for the purposes of Part 3 of the Act. Consultation 27 The Ministry of Foreign Affairs has consulted the following Government Agencies in the preparation of this National Interest Analysis: Ministry of Justice, Crown Law Office, the New Zealand Police and the New Zealand Customs Service. Withdrawal or Denunciation 28 Under Article 22, either party may terminate the Treaty by notice in writing through diplomatic channels at any time and it shall cease to be in force 180 days following the date of receipt of that notice. 5