Dealing with conduct, people, and things outside New Zealand
This is a single section from Chapter 10. Read the full chapter here.
Are special rules required for criminal proceedings with a cross-border element?
New criminal offences should be subject to the rules on territorial application in sections 6 and 7 of the Crimes Act 1961, unless there are special circumstances.
Sections 6 and 7 of the Crimes Act 1961 limit the application of the Crimes Act and any other criminal offences (unless otherwise stated) to conduct that occurs within New Zealand. The criminal law will still apply if only part of the conduct amounting to an offence occurs in New Zealand.
Those rules should only be departed from in exceptional circumstances. There must be a clear case for New Zealand law to apply, and it must be reasonable to expect the people to whom the legislation will apply to comply with New Zealand law (because of their links with New Zealand) or any international standards reflected in New Zealand law. In such cases, justification should be recorded in the policy documentation.
In addition, the following things will have an effect on attempts to address cross-border criminal activity:
- Generally, New Zealand law does not provide for a criminal trial or hearing to be held in respect of a defendant who is outside New Zealand (section 25(e) of the New Zealand Bill of Rights Act 1990). Natural persons who commit serious offences in New Zealand may be extradited to New Zealand to stand trial (see the Extradition Act 1999).
- New Zealand courts do not hear criminal proceedings in respect of breaches of the criminal laws of another country. New Zealand law must provide that the conduct that constitutes the overseas offence is a criminal offence in New Zealand, even though the conduct occurred outside New Zealand, before there can be a trial before a New Zealand court.
The Ministry of Justice and the MFAT Legal Division should always be consulted before making provision for New Zealand courts to have criminal jurisdiction in respect of conduct occurring outside New Zealand.
There can be practical enforcement problems in criminal cases with a cross-border element. Critical evidence required for a criminal proceeding in New Zealand may be located in another country, and vice versa. The proceeds of a crime committed in New Zealand may be located overseas, and vice versa. General mechanisms like the Mutual Assistance in Criminal Matters Act 1992 (MACMA) and the Criminal Proceeds (Recovery) Act 2009 can help if serious criminal offending is involved. Subpart 1 of Part 4 of the Evidence Act 2006, which provides for taking evidence remotely between Australia and New Zealand, applies to criminal proceedings.
However, there will be situations, such as when New Zealand and another country or countries have closely co-ordinated regulatory regimes, where more extensive co-operation may be required. How to deal with this is discussed in the next section.