Organised Crime and Anti-corruption Legislation Bill

It is a privilege to be able to speak on Part 2 of the Organised Crime and Anti-corruption Legislation Bill. This Part deals with amendments to other enactments. Whereas Part 1 was dealing with amendments to the Crimes Act, Part 2 deals with amendments to a variety of other pieces of legislation.

Subpart 1 deals with amendments to the Anti-Money Laundering and Countering Financing of Terrorism Act 2009. The principal Act came into force in 2009 in response to some pressure that New Zealand was being put under to join the international coalition of the willing, if you will, to put pressure on international crime organisations. I think that the nomenclature in terms of that legislation is probably a little bit over the top. Actually, it could have related to organised crime rather than the financing of terrorism but, nevertheless, restrictions on financing for any form of organised crime are certainly useful.

The significant amendments to that legislation are in clause 19 of this bill, which amend section 5. The “ ‘domestic physical cash transaction’ means a transaction in New Zealand involving the use of physical currency”. That has been amended slightly by the Law and Order Committee. I would be interested to know from members who were on the select committee why that change needed to occur. The original wording there does not look terribly difficult to interpret. I would be interested to know from members who were actually on the committee why that change was made. There is also an insertion of a new term, “international wire transfer”. That is a transfer where at least one of several New Zealand institutions is “(i) the ordering institution: (ii) the intermediary institution: (iii) the beneficiary institution”.

New subpart 2A, inserted by clause 23, refers to “Prescribed transaction reports”. New section 48A, “Reporting entities to report certain prescribed transactions”, reads “(1) Despite any other enactment or rule of law, but subject to any regulations made under section 154, if a person conducts a prescribed transaction through a reporting entity, the reporting entity must (as soon as practicable, but not later than 10 working days after the transaction) report the transaction to the Commissioner in accordance with section 48B.” This, I assume, is to improve transparency around certain prescribed transaction reports and to improve the ability to monitor the movement of certain monetary payments.

Subpart 3 is “Amendment to Criminal Investigations (Bodily Samples) Act 1995”, and clause 39 inserts section 27(1)(d): “for the purpose of responding to a request under the Mutual Assistance in Criminal Matters Act 1992 if—(i) access to the information requested is authorised by the Attorney-General; and (ii) the request relates to an offence that corresponds to an offence in New Zealand that is punishable by a term of imprisonment of more than 1 year.” This has to do with information that goes into the DNA-profile data bank. These are a number of, I guess, what are technical amendments, but they are designed to improve the functionality of various pieces of legislation that relate to greater transparency around—

I am pleased to take a call on Part 2 of this bill. I would like to pick up on my remarks that I made during the debate on Part 1, where the Minister in the chair, Louise Upston, acknowledged that this bill is entirely consistent with our international obligations. I would like to ask the Minister, in relation to Part 2, whether the provisions in Part 2 are entirely consistent and compliant with our international obligations, because the actual proposals upon which this Part 2 are based were based on the Ministry of Justice and 17 other Government departments, and the proposals that were put forward were subject to the biggest legal disclaimer that I have ever read in my life.

Actually, I am amazed that the Government’s ministries—it was an all-of-Government approach to this legislation, and there was a monstrous disclaimer from the ministries on their own proposals, yet those proposals form the basis of this legislation and the basis of the enactments that are contained in Part 2.

I would like the Minister to rise to her feet and reassure the public of New Zealand that all of the international obligations—the treaties, conventions, and protocols, whether they be OECD or through the UN—that those international commitments that we have made are, as she has mentioned in relation to Part 1, entirely compliant. If her own officials have to hide behind legal disclaimers and not take responsibility for the advice that they give when recommending proposals for this legislation, then how can we, this Parliament and the people of New Zealand, be clear?

I know that genuine efforts have been made through the Justice and Electoral Committee to implement these provisions, whether it be through money-laundering Acts or through all of the other subsequent amendments that are being made to a host of other pieces of legislation—I believe it is 12 pieces of legislation in total. The bulk of those amendments fall under Part 2—but I return to the point.

This piece of legislation and the provisions in Part 2 that give effect to many different provisions around money-laundering and other legislative provisions are all based on New Zealand being compliant and ratifying the international commitments that we have made. I would like to ask this Minister, the Hon Louise Upston, to rise to her feet and reassure the public of New Zealand and this Parliament that indeed, in enacting this legislation, New Zealand is going to be fully compliant. If not, then how compliant are we?

This is no time for half-baked measures. If we are putting through this legislation and amending a host of various pieces of legislation that are addressing a very, very important topic around strengthening our laws around organised crime and corruption, we need to have that assurance that indeed this legislation does ensure that New Zealand fulfils its international commitments. We have signed up to these international commitments, and indeed it has been exposed by Transparency International New Zealand, in 2013 I believe, that New Zealand is falling short—we are falling short. So we are putting this legislation through to ensure that we are able to lift the bar, but I would like to know from the Minister: have we really raised the bar and are we fully compliant with our international commitments, which are the topic and which underpin the provisions here in Part 2? Thank you.

I have a question for the Minister in the chair, Todd McClay, relating to clauses 58 and 59 together, and I have a separate question in respect of clause 61 of the bill. Clauses 58 and 59 of the bill relate to amendments to New Zealand legislation to provide mutual assistance to overseas countries that are looking into the sorts of things that would be illegal in New Zealand.

The first question I have is in respect of clause 58, which inserts a new section 31 into the principal Act, which is the Mutual Assistance in Criminal Matters Act 1992. It says that “A foreign country may request the Attorney-General to assist in arranging—(a) the taking of evidence in New Zealand;” and the Attorney-General can authorise that assistance if “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…in New Zealand:”. I can see why that power is necessary.

My first question relates to why it is that these rights go to the Attorney-General rather than sit with the police. It seems to me that these things ought not to be elevated to so high a level that in practice there are procedural impediments to actually cooperating with foreign countries trying to stamp out these sorts or corrupt practices. It may be that there has been proper thought given to that, and that the reasons for leaving that with the Attorney-General relate to the fact that it is the Attorney-General who through Crown Law generally exercises those prosecutorial decisions. But it also could be argued, I suppose, that in respect of lower levels of criminality, which none the less ought to be policed, it is generally the police that exercise those questions of discretion.

The second issue that I have not yet had an answer to from the Government—the Ministers in the chair—arises, again, in respect of clause 59, which also amends the Mutual Assistance in Criminal Matters Act. I raised this issue in respect of my contribution on Part 1, and it relates to the definition of “foreign public official”. You will see, in clause 59, that schedule 1 is amended by inserting into the list of offences against the Crimes Act section 105D, which relates to bribery outside New Zealand of foreign public officials. I asked why it is that we have got such a narrow definition of “foreign public official” that it does not capture the sort of controversy that we have currently in respect of the Saudi sheep issue. I accept that the Government does not accept the Opposition’s characterisation of the payments that were made to the Al-Khalaf Group—a $7 million cash payment, which the Opposition and the media—

💬 Ian McKelvie: Not still talking about this.

I am still talking about this—that is the reference we have from the National Party. You know, irrespective of whether you think that the Labour Party’s characterisation of those payments is accurate in fact, I would have hoped that National would concede that if we are right in fact, then those payments are improper. If a $7 million payment really was to buy the cooperation of the Al-Khalaf Group in order to stop that person blocking the advancing of the free-trade agreement with Saudi Arabia, that is improper, in my book. You can have a factual disagreement as to whether the facts actually show that that was the purpose of the payment, but if that was the purpose of the payment—and I think it was—it was improper.

That sort of payment ought to be illegal under New Zealand’s law, because it is improper. But the problem with this legislation is that that sort of payment, even if it is made, is not made illegal, because you have got such a narrow definition of “bribery of a foreign public official” that it does not capture that sort of payment. So if Mr Al-Khalaf was paid that sort of payment, and it was improper, and he was a public official, it would be caught by this legislation, but if he is not a public official—because he is not a public servant, he is just someone who has got influence on public servants—it is not caught by this legislation.

We have yet to have an explanation from any Minister in the chair as to what the logic is behind that proposition. Having not had an answer on Part 1, I am hoping that we get an answer in Part 2, because it arises in respect of clause 59 of the bill where reference to section 105D of the Crimes Act is inserted into schedule 1, and what is inserted is relating to bribery outside New Zealand of a foreign public official. I make the point that the definition in this bill is so narrow that the situation that we have in respect of the Al-Khalaf Group would not be caught, because Mr Al-Khalaf is not a public servant or a foreign public official in that context. Irrespective of whether the Government agrees with my characterisation of what Mr McCully and his Government did, the possibility that you can make those sorts of payments legally under New Zealand law is, in my contention, wrong.

I turn to clause 61, which, funnily enough, is sort of the flip side of what I have been saying. Clause 61 inserts provisions relating to international policing and information sharing to assist the corresponding agency overseas. Can I just note a degree of caution here, which I hope that the Government has properly taken into account. We have had experiences in this Parliament in recent years—and not just under the current Government but also under prior Governments; this is not a political point—where overseas Governments that are not very good at preserving civil liberties actually at times take what are quite political prosecutions or attacks against members of their own populations for political reasons.

We have got to be a bit careful that we enable our police to pass a sniff test across what is being asked of them in terms of the pursuit of allegations of corruption in another’s home country, because sometimes it is not what it seems, and sometimes what can be happening in those other countries is actually oppressive of some of their own citizens. We have to retain a discretion on the part of the police as to whether they think they should be assisting their corresponding overseas agencies. On some occasions I would actually trust the New Zealand Police to say: “Actually, no. We don’t think we should be assisting in this particular prosecution, because this particular country overseas has endemic corruption within it, and we ought not to be letting them use the New Zealand authorities to assist with politicised prosecutions that aren’t grounded in actual corruption.”

That is a hard thing to do—to legislate for—and you actually cannot specify every eventuality in writing, but you do need to make sure that the police have a discretion, in my opinion. We need to trust the New Zealand Police to actually sort the wheat from the chaff, and to responsibly exercise discretion as to whether it cooperates with the overseas authority when that foreign country wants to have the assistance of the New Zealand Police in order to gather information relating to a prosecution in that overseas country.

Tēnā koe, Mr Chair. Tēnā tātou katoa. It is my privilege to take a call on Part 2, “Amendments to other enactments”, of the Organised Crime and Anti-corruption Legislation Bill. I have listened intently to all the contributions in the Committee tonight, and there are clearly some questions around whether we are meeting our international obligations, so I want to reinforce that point on this side.

When I look at the regulatory impact statement it says in the very front that a lot of the proposals that we are putting up in this piece of legislation are untested, and the point that I draw members’ attention to is the fact that we do not collect enough detailed data on the extent of organised crime in New Zealand. So that somewhat limits whether we can properly evaluate the proposals put in here.

I just want to preface my contribution tonight with that statement—that these proposals are untested. I think it is the intention as well, but like most things, it is the implementation. So it is to that end that I particularly want to draw the Committee’s attention to the DNA testing in clause 39 in Subpart 3, “Amendment to Criminal Investigations (Bodily Samples) Act 1995”. Clause 39, which amends Section 27, amends the disclosure of information on the DNA profile databank. Hopefully, in the time we have got, the Minister in the chair may be able to give some assurances that—I guess, the extraction of DNA is important for many people—we are doing it in a way that is not only transparent but also safe, so that we ensure that the DNA samples that we are taking are for the purposes that we are taking them for. I would be interested in hearing from the Minister about how that is going to be conducted, who is going to be responsible for it, because we have had a history of DNA mixing in this country, and the outcome has not been very good, obviously, for those at the centre of it. So, just in respect of this part, I would invite the Minister to, perhaps, allay some fears around DNA testing.

The other one, in my time to contribute, in terms of Part 2 is the collection and monitoring of international funds transfer data. Just in terms of outlining, I guess, the problem that this piece of legislation is trying to address—you know, we talk about the Anti-Money Laundering and Countering Financing of Terrorism Act 2009, which I believe came into force in June 2013. It enhances the existing regime and establishes a new supervisory regime to better detect, deter, and investigate funds related to organised and financial crimes. In the 6-month period between 1 December 2009 and 31 May 2010, a total of just over 2,300 suspicious transaction reports were received by the financial intelligence unit from various financial institutes. The majority of these were from registered banks. Under the new Anti-Money Laundering and Countering Financing of Terrorism Act, banks, other financial institutions, and casinos—reporting entities—will be required to report suspicious transactions to the New Zealand Police’s financial intelligence unit. However, the information that is reported can be limited due to the subjective and disparate nature of reports that are based on suspicion. This can be a problem, because they are subjective, and they could be disparate.

So the first option that is proposed in this piece of legislation is to keep the status quo, so that under this option reporting entities would only provide reports of suspicious transactions to the financial intelligence unit. This option is not preferred, as debated by the select committee. Although suspicious transaction reports are valuable, on their own they are unlikely to fully address the high risk from wire transfer and cash deposits. Option two is that international wire transfers and large cash transactions be reported to the financial intelligence unit.

Tēnā koe, Mr Chair. Tēnā koe e te Heamana o te Komiti o te Whare o ngā Māngai nei, nō reira, tēnā koe.

[So acknowledgments to you, Mr Chairman of the Committee of the House of Representatives here; greetings.]

I would like to just take a short call on this bill. I was not on the Law and Order Committee, but I did take the opportunity to read some of the submissions. I think that in this particular bill it is fundamental to this bill that we have a very strong banking sector, so I took particular note of the submissions from the BNZ and then the New Zealand Bankers’ Association. I think that in talking about money-laundering and the processes of banking, as I said, it is critically important that we do have a strong banking sector. In BNZ’s submission, what it is saying is that in determining issues around transfers of money, it is important that the systems of the Government align with its systems so that it can maximise and be able to ensure that it picks up everything that it is meant to pick up. It talks about the use of its SWIFT system, and so I think it is important for the Committee to recognise and acknowledge the submissions from the banks.

The other part I wanted to talk about is that when we are talking about money-laundering, money-laundering in itself is, of course, an offence, but they are proceeds from another criminal offence as well, otherwise there would be no need to actually launder the money. Actually, we are talking about two things that are happening here, so I just wanted to also acknowledge that this bill takes care of one part and partially takes care of where those funds actually come from, because with this being an omnibus bill, there are several parts that this bill is actually part of.

I think my colleague mentioned earlier that her device was not working. Mine is, and I just wanted to quote from one of the submissions. As I mentioned earlier, the international banking system uses a service known as SWIFT to make international wire transfers. This involves passing authenticated messages to settle payments from one financial institution to another. The SWIFT system uses standard codes—I am going to jump right through because it is quite long—and the definition of wire transfer in section 5 of the Act deems transfer and settlements between financial institutions acting on their own behalf not to be wire transfers. These types of transfers are made using SWIFT, and it should be made clear that these are not reportable—that last bit was the key message that I wanted to really make in this. So from what I am reading, it is that it is that last bit about it not being reportable—

The CHAIRPERSON (Lindsay Tisch): Sorry to interrupt the honourable member. The time has come for me to leave the Chair for the dinner break.

Sitting suspended from 6 p.m. to 7.30 p.m.

I quoted BNZ before the dinner break, and I just want to quote Westpac as well, and pose a question to the Minister: how does the proposed legislation support what the banks are saying? “Westpac estimates that it will be required to report at least 2,000 transactions per day under the legislation.”, and it goes on to say: “To identify and electronically report this volume of transactions Westpac will be required to develop new IT systems and business processes.” So that was the question that I wanted to ask relevant to this piece of legislation.

Westpac also goes on to say that the legislation—[Bell rung] I have one last thing. Westpac goes on to say that the legislation must allow sufficient time for this to be done, and so I would like to ask the Minister that as well. That is all of my contribution. Thank you.

I want to come to a part of the bill that has not been debated thus far, I believe, and that relates to the amendment to the Criminal Investigations (Bodily Samples) Act in subpart 3. It is in Part 2 of the bill. I think that probably the fact that we are canvassing such a wide range of issues, from human trafficking to facilitation payments to things like the sharing of DNA information between countries, does demonstrate that this is indeed an omnibus bill. But in this part of the bill, which is the amendment to the Criminal Investigations (Bodily Samples) Act 1995, without seeing the context it is probably very difficult to see why such a requirement is necessary. That is why I wanted to canvass in a little more detail the problem that we have, just to ensure, I guess, that we have opted for the right options in updating our legislation, because five options have been canvassed by officials.

The situation we have is that periodically the police will receive requests from overseas agencies for DNA profile, and those are most likely to come from the Australian authorities—interesting, given the situation we are currently in—via Interpol. But there is an inability at present for New Zealand to legally provide information about DNA profile to our counterparts in Australia, and that is because the current legislation that governs the DNA Databank is the Criminal Investigations (Bodily Samples) Act 1995, which does not permit DNA profile information to be provided for an overseas agency for the purpose of investigation.

What is interesting is that we have had for some time a Mutual Assistance in Criminal Matters Act. That was put in place in 1992. Our bodily samples legislation came in 3 years later, and yet, for some reason, that legislation did not factor in the fact that we had that mutual assistance agreement. What that means in practice—in an example that is used in the regulatory impact statement—is that the Queensland police investigating a homicide may take a DNA sample from the crime scene and may ask the New Zealand Police whether or not there is a matching sample in New Zealand’s data bank, but even if the police in New Zealand go ahead and carry out that analysis and they come up with a positive match, they are unable to disclose who the matching sample belongs to.

Obviously, that will seem curious to members in this Committee, but what still seems curious to me, given there was a 3-year difference between when this mutual arrangement was forged and when New Zealand put in place its bodily samples legislation to regulate the way we deal with DNA samples, is whether there was any reason why that was not explicitly dealt with. Obviously it is some time ago now, so it might be hard to demonstrate that, but I do wonder whether Parliament gave it explicit consideration and decided against it.

I do think in the context that we are now in, where we have greater information-sharing arrangements—particularly with Australia, which is where this provision will take the greatest effect—we are now sharing between countries information about detainees who, for instance, might have parole provisions that would apply to them domestically, but they are being sent back to their home country. We should have that information so that we are able to apply it. I would make the point, though, that that is very different to what we are seeing at the moment, and members on all sides of the House are advocating very strongly against the deportation of people who have, for all intents and purposes, taken on Australian citizenship.

But coming back to the bill and to subpart 3, there was a range of options to deal with this dilemma, and it seems that of the five options that were canvassed, a decision was made not to have a broader information-sharing provision within the Policing Act, but to come in specifically with an amendment to the Criminal Investigations (Bodily Samples) Act. I think that is probably the right decision on the part of the Ministry of Justice. The ministry did want to make sure that it narrowed down the provision of this information-sharing agreement, and to do that it would be better to put it in the enabling legislation for the Act that regulates samples itself, rather than in something more broad like the Policing Act. But what is interesting is the role that the Ministry of Justice has recommended that the Attorney-General should play in decision making. I come to the specific—unless the Minister in the chair, Minister Finlayson, would like to make a contribution? No.

I come now to the way that it has been set out in the bill itself. It states under subpart 3 that this subpart amends the Criminal Investigations (Bodily Samples) Act. Clause 39, “Section 27 amended (Access to and disclosure of information on DNA profile databank)”, inserts in section 27(1) of the Act: “(d) for the purpose of responding to a request under the Mutual Assistance in Criminal Matters Act …”—so we are still falling back on making sure that those requests do come via that agreement—“(i) access to the information requested is authorised by the Attorney-General;”—which is the important point here; the bill is very explicit that it must be via the Attorney-General that these requests are made, so that it is not the police who have the discretion to determine whether or not DNA profiling of a New Zealand citizen is able to be shared ad hoc with any counterpart in Australia that requests it—“and (ii) the request relates to an offence that corresponds to an offence in New Zealand that is punishable by a term of imprisonment of more than 1 year.”

I guess one of the questions I wanted to raise in light of some of the issues that we are seeing currently is whether this requirement for the Attorney-General to provide that information is specific to New Zealand citizens, or does it also apply to New Zealand - born individuals who may now hold citizenship somewhere else? So, to give an example, if Australia made contact via the mutual assistance agreement via the Attorney-General and sought DNA profiling of someone who was born in New Zealand but now holds citizenship in Australia, how would that be treated, for instance? This is keeping in mind some of the situations we are seeing in Australia at the moment, where obviously the Australian authorities are trying to build cases against people whom they determine to be New Zealand citizens but who, for all intents and purposes, have been raised in Australia as Australians.

The other point I wish to make is that in subparagraph (ii) it says “the request [must relate] to an offence that corresponds to an offence in New Zealand that is punishable by a term of imprisonment of more than 1 year.” It is obviously creating a threshold there that says we do not consider this to be a provision that should be used for things that have an offence that does not have a custodial sentence attached to it. We do not consider such an offence to be important enough, and we want to make sure that the threshold is reasonable. I think that is really important, but, again, it highlights the absurdity of the situation that we are seeing at the moment, where people who have been imprisoned for not even a year are being deported, and yet under this legislation a country cannot even ask for their DNA information if the threshold is that low. You could be deported for that offence and sent back to a country that you have not known for 20 years, but you cannot even have your DNA information shared between countries because the threshold has not been met.

That, to me, highlights the contradiction about what we are seeing in the way Australia is enacting its policy right now—that it will not give us information about these people, but Australia will still deport them for a lesser offence than what we have set in this law as the threshold. I think that demonstrates something quite critical. I am glad the threshold has been set there. We should not be just sharing information about New Zealand citizens willy-nilly for what the public in this country—and, indeed, probably the public in other countries as well—would consider to be minor offences.

From reading the regulatory impact statement, I am heartened by the level of analysis that has been gone through to come to the conclusion that of the five options, the bar has been set relatively high. The Attorney-General will be acting on the advice of Crown Law, will be assessing the seriousness of the offence in the context of the reciprocal arrangement, and has the ability to refuse the request. From the threshold that we have established in the legislation, the Attorney-General has the ability to hold that sovereign decision to say that either it is not an offence that we consider to be serious enough or it simply does not meet our standards. I think that is incredibly important.

I think it is important, also, to keep that decision making away from the police and put it in the hands of the Attorney-General. The police in New Zealand need to maintain their relationships with their counterparts via Interpol, and this is one way that they will not be caught between a rock and a hard place when Australian police ask for the information and they are the decision makers in that regard. I think it is a provision that demonstrates how much thought has gone into ensuring that we balance the need to cooperate at an international level whilst also preserving the rights of New Zealanders in regard to the information that is held on them.

And that is perfect timing, I think you will find, Mr Chair.

Thank you for this call on the Organised Crime and Anti-corruption Legislation Bill. Strengthening our laws to combat organised crime and corruption is a worthy aim. This bill will allow us to meet a number of our international obligations and will enhance our compliance with various international treaties and conventions so we can better assist international efforts on corruption, on bribery, and on the activities of organised crime.

Part 2, Subpart 7, amends the Income Tax Act 2007. It seeks to ensure that bribes are not tax deductible. Clause 51 of the bill is designed to make taxation legislation more consistent with criminal legislation, and it replaces section DB 45 with a new section that denies deductions for bribes. The intention of this clause is to make it clear that no bribe payments can be tax deductible, whether they be bribes paid through intermediaries, bribes paid for the purpose of obtaining an advantage for a third party, or bribes paid to foreign public officials for acts or omissions in relation to the performance of official duties.

This amendment is another of those contained in this bill that will enhance our compliance with the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and the United Nations Convention Against Corruption. However, in contrast, the Crimes Act amendments in Part 1 had a number of authoritative contrary submissions during the select committee because Part 1 actually permits facilitation payments.

Bribes paid to foreign public officials for the sole or primary purpose of ensuring or expediting their performance of a routine Government action where the value of it has no undue benefit or disadvantage seems to be A-OK, but there will be no tax breaks allowed. Well, clearly, such payments are not legitimate business expenses. Of course, we would not be advocating that we should resolve this inconsistent approach by allowing payments to grease the proverbial wheels to become tax deductible. No, I am merely pointing out that Part 2, in this respect, is not consistent with facilitation payments allowed in Part 1. Rather, the question for the Minister of Justice is: should we not be following the strong taxation approach and saying that bribery is not acceptable. A genuinely hard-line approach by this Government against corruption would be most welcome in this bill.

We are now slipping in the ranks of least corrupt countries in the world. In recent years we have seen a lessening of transparency from this Government. The Government arrogantly continues to look after itself and the privileged few at the expense of everyday, hard-working New Zealanders. Its “no rules apply to me” approach was revealed in detail in Nicky Hager’s Dirty Politics book. The implications of a concerted campaign to undermine regulators like the Serious Fraud Office and the Financial Markets Authority cuts deep to the heart of the integrity of our financial system. Public servants and many people from both sides of the Chamber have worked hard to clean up the mess from the finance company collapses and have attempted to restore some faith so that the public can invest with confidence again. We support clause 51 in Part 2 of this bill because it clarifies that bribes are not tax deductible. Thank you.

Thank you very much, Mr Chair.

💬 Hon Ruth Dyson: Excellent choice, excellent choice.

Thank you, Mrs Dyson. My learned colleague Jenny Salesa and I were on very much the same wavelength when we looked at this. I want to talk about DB 45 Bribes. Part 1 relates to a number of sections in the Crimes Act. The one I want to talk about in particular is section 103(2), but before I do, let me first also just go to the definition of bribes in the Crimes Act. This is the definition—I had it here 2 seconds ago; you would not believe it. This is the definition in the Crimes Act: bribe means “any money, valuable consideration, office, or employment, or any benefit, whether direct or indirect”. So we need to be pretty clear about what we are talking about here.

Section 103(2) of the Crimes Act, which DB 45 Bribes applies to, actually says “Every one is liable to imprisonment for a term not exceeding 7 years who corruptly gives or offers or agrees to give any bribe to any person with intent to influence any member of Parliament in respect of any act or omission by him or her in his or her capacity as a member of Parliament.” This is quite an interesting definition. When I looked through this, I wondered what constitutes a bribe to a member of Parliament.

We all know that the Electoral Finance Act really tightened things up. So if we are given a campaign contribution over $1,500, then we have to declare that; we all know this. If it is under that, then this is fine, and it is not considered a bribe. But say, for example, a member of Parliament was given a car and told to promote something—just as a hypothetical example. Would that be considered a bribe—when they are trying to exert undue influence by driving around, let us just say, a badged car? When I look at the definition here, it would come quite close.

The thing I cannot find, though, is the definition—I am sure there is one—of corrupt. So this is 7 years for those who corruptly give or offer to give bribes. So I suppose what it is is it is about the intent of the person who gives the money or the good or the offer of employment to that particular MP. So what defines corrupt? Well, do they mean to mislead the public or do they want the MP to do something that he or she should not be doing or knows is morally wrong, as opposed to legally wrong? I am not too sure.

The Minister in the chair, Todd McClay, no doubt does understand the law a lot better than I do in this area, and I would not mind just a little bit of direction on this, because I think that in this day and age of increased scrutiny that MPs are coming under, we need to be incredibly clear about what constitutes a bribe so none of us get put in a situation where, unwittingly, we accept a gift or an offer of money or a car or something like that that may, by law, constitute a bribe.

There is one other clause that I would like to talk about if I may, and that is clause 46. This relates to section 209, “Offences in relation to importation or exportation of prohibited goods”. Clause 46(1) states: “is knowingly concerned in any importation or exportation of—(i) goods that are designed, manufactured, or adapted with intent to facilitate the commission of a crime …”. The interesting thing about this is that you could argue that a gun is designed to facilitate a crime. I mean, you have a gun so you can shoot something, whether it is a target, a person, or an animal. You could mount a strong argument that a gun is designed to actually facilitate a crime, and so how do things like guns or spears or shields, whether they are ornamental, whether they are African, whether they are Indian, whether they are new, whether they are old—how would you actually know, in fact, whether you are importing a prohibited good? The definition here of “prohibited good” is quite wide, I would have thought, and so a little bit more definition around that—all I am after is a little bit of clarification so that good, hard-working Kiwis do not get caught at the border when, in fact, they are bringing in stuff unknowingly. And as we know, ignorance is no defence when it comes to the law—of that there is no doubt.

The other thing also is paragraph (ii), which states “goods that, having regard to all relevant circumstances, can reasonably be considered—(A) part of, or involved in, an attempt to commit a crime involving dishonesty”. I suppose that is a little clearer, because there seems to be more of an intent test around that because it is talking about “involved in an attempt to commit a crime”, so there is a bit more of intent, whereas paragraph (i) talks only about goods that are designed or manufactured with the intent to facilitate the commission of a crime like, as mentioned, a gun, a spear, a shield, or any other thing that could be considered a weapon. And those of us who have flown will know that even a plastic fork these days can be used for disingenuous purposes.

I move, That the question be now put.

Motion agreed to.

The question was put that the amendment set out on Supplementary Order Paper 118 in the name of the Hon Amy Adams to clause 46 be agreed to.

Amendment agreed to.

Part 2 as amended agreed to.

Clause 1 agreed to.

Clause 2

The question was put that the amendment set out on Supplementary Order Paper 118 in the name of the Hon Amy Adams to clause 2 be agreed to.

Amendment agreed to.

Clause 2 as amended agreed to.

The Committee divided the bill into the Crimes Amendment Bill, the Anti-Money Laundering and Countering Financing of Terrorism Amendment Bill, the Companies Amendment Bill, the Criminal Investigations (Bodily Samples) Amendment Bill, the Criminal Proceeds (Recovery) Amendment Bill, the Customs and Excise Amendment Bill (No 3), the Extradition Amendment Bill, the Financial Service Providers (Registration and Dispute Resolution) Amendment Bill, the Financial Transactions Reporting Amendment Bill, the Income Tax Amendment Bill, the Limited Partnerships Amendment Bill, the Misuse of Drugs Amendment Bill, the Mutual Assistance in Criminal Matters Amendment Bill, the Policing Amendment Bill, and the Secret Commissions Amendment Bill, pursuant to Supplementary Order Paper 119.

Bills to be reported with amendment presently.