Crimes (Countering Foreign Interference) Amendment Bill

I present a legislative statement on the Crimes (Countering Foreign Interference) Amendment Bill.

ASSISTANT SPEAKER (Maureen Pugh): That legislative statement is published under the authority of the House and can be found on the Parliament website.

Hon PAUL GOLDSMITH: I move, That the Crimes (Countering Foreign Interference) Amendment Bill be now read a third time.

This Government has committed, as we all know, to restoring law and order and strengthening democracy and freedoms. I’m pleased that this bill has now reached its final stage, because it supports both of those important goals. However, it’s unique in the sense that unlike our other law and order issues we’ve debated in the House, which arise from domestic challenges, this bill responds to a threat we collectively face that comes from outside New Zealand. It specifically addresses the growing issue of foreign interference. Foreign interference goes beyond the appropriate forms of State-to-State engagement. It is activity that is intended to deceive, corrupt, or coerce New Zealanders to unduly influence, disrupt, or subvert our national interests.

Our intelligence and security agencies report that foreign State - sponsored attempts have been made to deceptively influence policy makers and undermine the independence of our democratic and foreign policy objectives. Public submissions on the bill reported communities are being harassed and monitored and attempts are being made to prevent them from expressing views that foreign States consider subversive. This cannot be tolerated in our democracy. We must send a clear signal to the public and other States that foreign interference from any source is not acceptable.

Rawiri Waititi: Like America.

Hon PAUL GOLDSMITH: This bill—thank you, Mr Waititi, for your commentary—strengthens New Zealand’s criminal law to support a justice response to foreign interference and espionage activity targeting New Zealand. It specifically introduces two new offences that criminalise foreign interference, and updates existing offences to better hold people accountable for disclosing information that’s likely to prejudice New Zealand’s security or defence. The measures are country-neutral of course, and apply to anyone or any nation undertaking foreign interference against New Zealand and those who support foreign States through malign, self-initiated conduct.

The first new offence criminalises the act of foreign interference. To commit the offence, a person must know, or ought to know, that they are committing or acting for or on behalf of a foreign power. They must also be acting in an inappropriate manner and mean to compromise a protected New Zealand interest. All elements of the offence must occur to attract criminal liability. This ensures that the offence doesn’t criminalise appropriate foreign influence occurring through diplomatic or political channels, or when foreign States or their agents advocate for their country’s interests in an open and transparent manner—which, I’m sure, is everything that people assume. It will also mean that the offence does not apply to people who do not know and do not have a reasonable way of determining that they’re being used by a foreign State to undertake foreign interference against New Zealand, and that’s important.

The second new offence further criminalises existing imprisonable offences where they are committed for or on behalf of a foreign power to benefit in specified ways. The offence recognises that some activities used to undertake or support foreign interference are already offences in New Zealand. The significance of these criminal acts and the harms that they cause increases when they are committed to support a foreign power. This will now be accounted for in our criminal law.

Safeguards, of course, will be in place to ensure lawful and appropriate conduct does not inadvertently attract criminal liability. This includes requiring the Attorney-General’s consent to prosecute. The Justice Committee also made important changes which further clarified the bill’s intent to target harmful foreign interference and protect the exercise of rights and freedoms. I appreciate and I welcome the committee’s contributions.

With respect to changes to existing offences, the bill clarifies and strengthens accountability for committing espionage and disclosing Government information that is likely to prejudice New Zealand’s security or defence without authorisation. The bill inserts a definition of “A person who owes allegiance to the Sovereign in right of New Zealand” into the Crimes Act. This definition does not apply to the new foreign interference offences, but instead provides greater certainty for who can be held accountable for committing espionage and a small number of existing offences that include this term.

New offences are being created to address criminal liability gaps under this bill. Anyone who owes allegiance to the Sovereign and right of New Zealand can now be held liable as a party if they assist others to commit acts that amount to espionage against our country.

Collectively, these changes strengthen our criminal justice response to foreign interference by providing a means to better hold people to account for committing harmful acts against our country and our communities. I’m proud that New Zealand will be taking this stand against foreign interference. We encourage cooperation and mutual respect between States, but we also must be clear that we will not tolerate acts that seek to undermine our sovereignty, security, and our way of life.

By passing this bill, we are supporting the resilience of New Zealand’s democracy and working to ensure our country remains a place where everyone can enjoy the guaranteed rights and freedoms afforded to them under our laws. On that basis, I commend this bill to the House.

The question is that the motion be agreed to.

Kia ora, Madam Speaker. The Labour Party will be supporting this bill, but not with the excitement that the Minister of Justice gave his speech in, because this bill seeks to strike a balance between what is, essentially, national security and the rights and freedoms of its citizens. The area of national security is one in which it is particularly challenging to do that, because the interest protected—the interest of national security—is somewhat amorphous; and, in terms of foreign interference, the conduct which is by this bill criminalised would, in many settings, be innocuous, and I want to just outline how innocuous it might be.

Some people might be aware that the Economic and Cultural Office of Taiwan had an event the other day, and some MPs attended. Some MPs received a letter from the Ambassador to the People’s Republic of China, which was, essentially, a reprimand. Now, if it went no further, the ambassador, in a perhaps ham-fisted way, is trying to influence the conduct of parliamentarians. So far, nothing in particular to see here, in terms of this legislation, but you only have to add one ingredient. If, for example, the ambassador asked someone, a New Zealand citizen, perhaps an immigrant, what MPs were there, then let’s run that through this piece of legislation, because the question is: is the passing on of information improper conduct? The short answer to that is that, under this legislation, it is, because it’s passing on private information, or information about a person, without that other person knowing. Are they doing it knowing that they’re going to assist a foreign power? Well, if they’re handing it on to someone from an ambassador’s office, they’re clearly doing it because it’s useful to that other person.

What is the effect of that? The effect of that, if we look at the letter that was sent, is to seek to impede the conduct of a public official. The members of Parliament who are there, members of this legislature—the ultimate aim was to seek to interfere with the discharge of their duties through influencing their behaviour. If you peel that back, we’ve got something that looks pretty innocuous: “Yes, I saw Duncan Webb at that event”; you wouldn’t think that that’s criminal, and that’s why I say this is a difficult piece of legislation.

We support it, but we want to be clear that we need to strike a careful balance. What I don’t want to see is people who are doing innocuous acts, perhaps carelessly, perhaps even recklessly, because that’s the test: was that person reckless as to whether or not they were assisting a foreign power in seeking to exert influence? I think we need to approach this with a degree of caution, because, ultimately, it will be, I assume, the police who will be enforcing this, and they will need to strike a careful balance between not just the New Zealand Bill of Rights Act protected rights but also the importance of the freedom to act in what we would consider to be a normal way. So if we think of the test, “they know or ought to know”, so they could be acting innocently, but a person who is perhaps a bit smarter or a bit switched on, or perhaps just not quite as thick, would know. So that person ought to know.

Then, of course, we’ve got this test of “the person engages in conduct being reckless as to whether doing so is likely to compromise a protected New Zealand interest.” Now, an ordinary person in the street is unlikely to understand what a protected New Zealand interest is and is unlikely to see the nuance of what is a national security interest: defence, easy; selling submarine designs to the Russians, easy. But telling people who were at an event, or things of that nature, who met with who; that’s hard to understand, but, nevertheless, it could be interfering with a protected New Zealand interest, because a protected New Zealand interest includes not only the economic wellbeing of New Zealand but also the functioning of the executive, judiciary, or legislature. Saying who Ministers met with or who parliamentarians met with or where judges play golf—those kinds of things could all be seen as in breach of this legislation. It even goes further down the Public Service, because interfering with “the exercise or performance of any public function, duty, or power conferred … on [any] person or body”. So even if you’re talking about the conduct or the behaviours or the relationships of a public servant, particularly senior public servants, that’s going to run into problems.

Of course, the conduct in itself—there’s some conduct which we know to be problematic. Coercion is an obvious one: threatening to disclose harmful information if someone doesn’t give you a secret—of course it’s going to be wrong. That’s the kind of coercion in foreign interference that, clearly, falls over the line. But what about just concealing a person’s actions or identity? Not telling someone your real name in a conversation? If you’re working for an embassy and you’re at a party and you don’t tell them you work at the American Embassy and you, therefore, get disclosures about what they do, who they are, their role in Parliament, some staffer talking about the work they’re doing for a senior Minister—well, simply by not saying, “I work for the American Embassy”, when you’re talking to staff at the Ministry for Economic Development office, that is concealing a person’s identity. Similarly, “obscuring the existence of an association or relationship”—that also falls foul of it. Or, in the one I referred to earlier: “collecting or sharing information about a person without their knowledge or consent”—it doesn’t say “private information”; it just says “information”.

I think, when we come to look at this, foreign interference is a problem; we need to absolutely address it, but one of the challenges at select committee, and one of the things that I, to be honest, wasn’t entirely satisfied with, was that the boundaries of this criminalisation—the fringes—are not clear. The centre is clear. The prohibition on spying and illegitimate influence is clear, but at the fringes, the kind of small behaviours that actually are the bread and butter of the intelligence community are not clear. We need to be constantly vigilant that we don’t have a kind of authoritarian creep where things which we ought to accept as an ordinary incident of living in a free and open and democratic society all of a sudden become subject to, essentially, criminalisation—and criminalisation in a way which is hard to defend against, because there’s not a great deal of mental element here and the actus reus, the actions which are prohibited, are broad indeed.

This bill is needed. Addressing foreign interference is needed. But when the courts come to interpret this, I am hopeful that they will look at it and say that we need to interpret this not just against the background of the New Zealand Bill of Rights Act but also against the background of how a free and democratic society operates, and what kinds of behaviours are assumed to be permitted and what kinds of interactions are presumed to be permitted, and to ensure that only people who really know that they are leveraging a foreign power’s influence in an inappropriate way are criminalised by this legislation. So, on that basis, we will be supporting this bill, but we will look with interest at its implementation.

Thank you, Madam Speaker. Just to acknowledge the previous speaker, the Hon Dr Duncan Webb, he made a lot of really, really good points—he always makes a lot of good points; enough points, actually, for me to not support this bill. Surprise, surprise! The Green Party do not support this bill. While we understand it’s important to ensure New Zealand is protected from genuine threats of foreign interference, this legislation does not ensure sufficient protections for civil liberties and democratic freedoms.

The point made around being influenced by foreign entities, by foreign countries, I think, is an important one, and the illustration by the Hon Dr Duncan Webb, a very specific one. I don’t have anybody from a major foreign power following me on social media, who might comment or watch what I am sharing on social media, but I think it is an important point, because if you add the extra influence of a foreign country on to somebody whose conduct is reckless, then the court can actually pile on a lot more penalties—up to around seven years, I think it was.

In the committee of the whole House stage, I did propose an amendment to clause 10, which I thought would actually rectify that. It was to replace “funding, or agreement” with “or funding” to make sure that it’s not necessary to actually have the agreement of a foreign power, because people are sometimes reckless and are doing wrong, but they might not be conscious that, actually, a foreign power is influencing them, or actually agree that this foreign power is agreeing with them. So, actually, having something in there, I think, would have been quite useful.

The committee of the whole House stage was interesting; we canvassed a whole range of ideas. We had this really interesting discussion around the definition of owing allegiance, and despite the debate and despite the discussion, I still found it quite unclear and unclear exactly how this legislation will apply that particular part of the bill. One of the interesting examples that was brought up was around people with whakapapa or a heritage connection to Aotearoa New Zealand. There’s a very live case at the moment—and I noticed the Hon Minister Tama Potaka in the House, as well—where a family took this through to the Waitangi Tribunal in order to get their passport. The contention of the Waitangi Tribunal, in that case, is actually that you should be able to get New Zealand citizenship within two generations, as well. In that particular case, this could apply to somebody overseas who has that whakapapa connection within two generations if the Minister and the Government would agree with the Waitangi Tribunal, and I think there are really good reasons why the Government should do that.

There were also discussions around owing allegiance around various visa types, as well. These are very interesting questions. People come here on different visas, so what does that actually mean for them? How do the owing allegiance provisions specifically impact them as well? I felt that those questions were not resolved very well by the Minister. We also were concerned around the discussion around foreign agents who become residents but not citizens, who might fall outside of the allegiance definition, as well.

There were certainly some conversations around how this would apply to people who hold allegiance that live outside of New Zealand. I have a particular interest in that, because I am also from the Cook Islands: we have New Zealand passports; Niueans also have New Zealand passports. What does that mean for us? You have a large number of us living here in New Zealand. Then you also have people in the Ross Dependency, as well. It wasn’t very clear. I think that the answer that we got to was: determining what the type of citizenship somebody—like myself and my relatives over in the Islands—might have is a question for the courts.

There was a discussion around how common law could be applied to people, to citizens, as well. But here’s the thing around access to the common law: you actually need some resources to be able to go to the court to determine whether you fall under the provisions or not. That was, I felt, a question that was also unresolved by the Minister, as well.

There’s also lots of different questions around temporary allegiance, as well—that was something that was brought up, which I thought was quite interesting; I think that was Vanushi Walters that brought that up, and I had actually never heard of that before until that particular debate as well—and historical legal concepts of temporary allegiance, where non-citizens owe allegiance only while present in the country. That’s an important point to make, because if you owe allegiance and you fall under the auspices of this legislation and you’re at a meeting and you’re a bit reckless at the meeting and someone likes your stuff on Facebook, you could be facing even more penalties. I think that was really unclear, as well.

Also, there were questions around how this would apply to migrants, visa holders, and people with dual obligations. I’ve heard of people in this House who have dual citizenship—I think maybe even triple citizenship, but I’m not too sure if that’s actually possible; it probably is. These questions were also canvassed at the committee of the whole House stage, as well, but I still don’t think that those were adequately addressed.

There is the wider question around the influence of Five Eyes countries, as well. The submitters that came to the Justice Committee were very specific about a particular couple of countries, and that was what the focus was. If you’re getting foreign interference from anyone, from any other country, then it’s appropriate that things need to be put in place. But there was no resolution for the vast number of submitters who came to the select committee who were concerned about the importation of culture wars—for example, the influence of groups like the Atlas Network. We only have to see what happened just outside in the last Parliament, when they burnt down the playground, as well—people influenced by social media, and the influence of social media on New Zealand citizens, as well. These are all examples of foreign interference, of foreign influence by outside entities, whether we agree with the people that were influenced by that or not.

This bill does not address that, as well, and I think that continues to be an important question for this House, as well, particularly when you give the trajectory of the Government. They’re cosying up to the Trump administration—too close, I would say, to the Trump administration. I think it’s really important that we have an independent foreign policy, and getting too close to the Trump administration I don’t think is a good idea, particularly when it doesn’t pay the dividends that you think it would. I recall the announcement of the Wellington FBI office: everybody was surprised it was open, but no one was more surprised than Todd McClay because, the very next day, New Zealand got pinged with 15 percent tariffs. So here you have it: we roll out the red carpet—well, the Government rolls out the red carpet for the FBI, and they can’t even give us a good tariff rate. So we’re being influenced to roll out the red carpet for the FBI, and it doesn’t even do anything for us.

These really important questions need to be resolved, these really important questions need to be put to the House, about how you do actually deal with that situation. We do not want—or I don’t think we want—to have the impact of culture wars being imported into the country, culture wars predominantly via America, influencing our society. I think that’s incredibly, incredibly important. This bill doesn’t do anything to resolve that. This bill does nothing to resolve that at all. It is very, very specific and targeted at one particular group, and pretty vague in that way, as well.

We won’t be supporting this bill. There were too many unresolved questions around who owes allegiance to who; the potential legal gaps and loopholes, as well; how this will impact people who are dual citizens or triple citizens; access to the common laws so you actually can figure out what your rights are, because not everybody has got money to actually to roll up to the court and say, “You know what? I was a bit reckless, I was a bit disorderly, I went to a function, I met the Hon Duncan Webb and I put something on Facebook and a foreign power liked me on Facebook.” Those things are not clear. We don’t think this bill hits the mark, and the Greens will not be supporting this bill.

Thank you, Mr Speaker. It’s a privilege to stand on behalf of ACT and support the Crimes (Countering Foreign Interference) Amendment Bill. This Government made a commitment to restore law and order, and that comes in many shapes and sizes when it comes to dealing with criminal offences. Part of this is around strengthening New Zealand’s ability to detect, deter, and respond to foreign State interference by creating new criminal offences, modernising espionage and treason laws, and tightening protections around sensitive information and national institutions. This all makes sense because it’s important to protect New Zealand’s interests. It’s important to make sure that there’s accountability when there is foreign interference in our country that actually threatens our national interests.

We are strengthening the law to provide a better means to hold people accountable when they are undertaking foreign interference. Whilst it is OK and normal for diplomatic activity to happen—transparent lobbying and other forms of open and cooperative engagement are welcome—when it becomes hidden and when it becomes deceptive and quite corrosive and corruptive, we need to have a way of dealing with this.

I’m really proud to be part of a Government that’s looking at all areas of law and order and making sure that we’re protecting New Zealand’s interests and making sure that everybody is safe in this country. I really commend this bill to the House.

I rise on behalf of New Zealand First to speak in support of the Crimes (Countering Foreign Interference) Amendment Bill. The bill directly affects New Zealand’s ability to uphold and defend our sovereignty. Criminalising and applying harsher penalties to new kinds of covert acts intended to compromise our sovereignty will protect New Zealand, New Zealanders, and our New Zealand interests.

This is a very clear piece of legislation, which is raising questions as to why it’s causing so much consternation. This is about the deliberate deception, corruption, and coercion of individuals. It is the undermining of our ability to secure our sovereignty, protect our democracy, and protect our way of life. I think, ultimately, that is the message that we are sending. For any questions around criminality, as those who understand law will know, this is about combining mens rea with the actus reus—so there is a combination. When you break down an offence and talk clause by clause and ignore the fact that this is an “and, and, and” piece of legislation and that all of those components have to exist in order for the criminality levels to be met, and, again, always, as with any law, the threshold of reasonable grounds to believe before any prosecution can take place and, further than that, beyond reasonable doubt to achieve a conviction, I think, will provide the assurances that those across the House have questioned in debating this bill.

New Zealand First supports this bill because it gives our enforcement agencies the powers they need to tackle any kind of foreign interference. As we know, we are more connected globally than we ever have been, and, therefore, with that comes the risks of foreign interference. We need to ensure that we can trade openly, that we can engage equally, and that we can grow our identity across the world, whilst having the protections from foreign interference that would seek to undermine our way of life and our democracy and our national security. Therefore, New Zealand First has no hesitation to commend this bill to the House.

Kia ora, Mr Speaker. Well, I’ve heard a lot this evening, and what we have here is a Government that continues to use scaremongering tactics with our people here in Aotearoa, without any true evidence. We’ve had a few bills passed through this House this year. One was about regulating space because there was an imminent threat—we weren’t told what that imminent threat was. The social engineering that this Government continues to do to the New Zealand public is actually frightening, because what you actually do is you start to prepare and you start to create legislation that, in actual fact, if you were to peel it all back, you will find that the foreign interference happening here at this particular time is actually aligned with the Americanisation of this country.

Debbie Ngarewa-Packer: Absolutely. Trumpism.

RAWIRI WAITITI: It’s Trumpism. It’s Trumpism at its best. Just like everyone else in Aotearoa, we do not want foreign powers. When you start to criminalise owing allegiance to the Sovereign in right of New Zealand—you have got iwi in this country who understand what sovereignty is, and we never swore sovereignty to the Crown of England, and so that is—

Andy Foster: That’s a matter of opinion.

RAWIRI WAITITI: That’s not a matter of opinion. Read Te Tiriti o Waitangi. This is your problem, sir. This is your problem. That member hasn’t read Te Tiriti o Waitangi. It never ever said that Māori ceded sovereignty. We’ve got Ngāpuhi over there, and we’ve got Mōkai Pātea over there. You go and have a conversation with those iwi. I can tell you right now that those particular clauses in this particular bill will be damaging, and we cannot support this bill. We cannot support this bill, because it fundamentally goes against our vision for foreign policy in Aotearoa.

There was inadequate consultation with tangata whenua in the development of this bill. Te Tiriti is absolutely absent in it. This looks like another step in Aotearoa cosying up to the United States. Our policy is straightforward. Te Pāti Māori will assert our mana motuhake in a foreign policy grounded in tikanga Māori and anti-imperialism. We will reject the war agenda and reaffirm military neutrality for Aotearoa. We cannot let foreign powers turn Te Moana-nui-a-Kiwa into a strategic war zone, and we cannot align ourselves with Government committing or sponsoring war crimes.

How can our people trust the Government to act in their best interest when they are not even willing to engage with us on matters of national security and when they are actively harming our people with their domestic policies? How can we trust that this bill will protect us from foreign interference when this Government has a track record of aligning Aotearoa closer to the United States? They’ve set up an FBI office in Pōneke, they’ve refused to recognise Palestine’s Statehood, and they are laying the groundwork for joining AUKUS. This is just a realignment to Five Eyes—all while the United States enabled and funded a genocide. This is shameful—this is shameful. The reason that this Government cites for alignment is the pressure from traditional security partners—Five Eyes, AUKUS—and growing geopolitical competition in the Pacific, hence the bullying tactics over the whanaunga in the Cook Islands: cybersecurity and shared intelligence concerns; dependence on trade with China versus ties with the West. China is our biggest trading partner, but you treat them like the second cousin sitting over there, and you align yourselves to the US.

Regulation of our space territory was another one. Not only did you allow the protection—

ASSISTANT SPEAKER (Greg O’Connor): I haven’t done anything, Mr Waititi.

RAWIRI WAITITI: It’s all part of it; it’s all part of it, Mr Speaker. It’s all part of counter - foreign intelligence, because it all aligns. It all aligns. All the legislation you’ve moved aligns with this, because what you’re doing is allowing one country to have interference in ours, and your alignment with that—

ASSISTANT SPEAKER (Greg O’Connor): Mr Waititi, just less use of the word “you”.

RAWIRI WAITITI: OK. They are aligning with the—are you happy now? They are aligning with the Americans and allowing our country to be sold off, not just in our security and our social security but, also, in a commercial instance. You constantly align yourselves with Five Eyes and AUKUS. Absolutely—absolutely. We are unequivocally against this bill, and we will never, ever support a bill that goes against the true sovereign of this country, te iwi Māori. Kia ora tātou.

Thank you, Mr Speaker. I think I want to start by talking about some of the issues that we have explored in this bill during the committee stage. I think the first thing that we’re looking at is the definition of who is supposed to be covered in this bill and the “Meaning of person who owes allegiance to sovereignty to the Sovereign in right of New Zealand”.

Now, there was a lot of discussion but, to be honest, we didn’t get the clarity that we were hoping for from the Minister when we’re looking at some of these definitions, and I think a lot of them have been pushed down the lane as saying, “You know what, that’s more for case law to determine.”, but we have seen in Aotearoa that there is a barrier for people when it comes to access to justice, and that barrier is particularly high for those whose English is their second language. So that, first and foremost, wasn’t something that we were particularly impressed by during the committee stage.

Once we were looking more into it—and I think, specifically, that my colleague Teanau Tuiono has explored some of these areas around, well, what does “recklessness” in this case mean? You know, mens rea is a particularly important component when committing an offence. I propose the example: what happens if an MP were travelling abroad, took their devices, and then that somehow got left behind or some of the data was accessed? Is that considered recklessness under section 78AAA, subsection (3)? That is a really important question, because that’s an actual, genuine example that may eventuate if we are looking at this bill that potentially has a very broad scope.

We also did ask the question because, I think, when you are looking at a bill like this and the kind of advice that the Government has received, it’s also: who is the target of this particular bill? We do want to explore the fact that if you’re looking at the definition under section 78AAA, subsection (6), in terms of who would be considered a foreign interference body or a foreign power, you could include things, like a foreign public official like Elon Musk when he was part of the Department of Government Efficiency. You could be looking at a company, body, or organisation like the Atlas Network, and the way that it has infiltrated even some of the decisions that Aotearoa New Zealand makes in this term.

Hon Casey Costello: Don’t let facts get in the way of a good story.

Dr LAWRENCE XU-NAN: This is an important question, and this is an important point, and I love the fact that people are saying, “Well, what is the fact?” To be honest, we are already seeing that. We have seen that this very week and also last week, in terms of some of the bills that get passed in this House. What is considered, then, foreign interference? Because, clearly, the Government has a particular target in mind.

Now, foreign interference is a serious issue and it should be something that people take seriously. Particularly for the migrant community, this is something that is being taken seriously in terms of what it means. But I’m also fearful for my communities, because this sort of fear mongering will be reverberated on them. Nothing in this bill and nothing we have heard so far talks about the impact this will have for my community when they are being targeted by racism and by people who do not understand what this bill is trying to do but have bought into the fear perpetuated by this Government.

People always say like, “Well, you know what, sovereignty is really important.”, but they are also the same people that we have seen who are quite comfortable selling Aotearoa to overseas powers. Te Tiriti is our defence, but we have not seen Te Tiriti once in this this bill; we have not seen tangata whenua being consulted, and hapū and iwi being consulted, in the making of this bill. Why? Because the biggest colonial power and the biggest foreign interference of Aotearoa is the colonial power, and it’s perpetuated and permeated in the history of Aotearoa. But we are seeing the Government continuously undermining that. So, no, the Greens will not support this bill because it’s two-faced, frankly.

Thank you, Mr Speaker. The deeper that we get into this evening, the more we see drama, theatre, performance, and fiction, and, over here, we see fact and a Government that is looking to get things done to get this country back on track. Let me give you some facts this evening. This bill does a few simple things: it ensures we’re clear on who owes allegiance to the sovereign and the right of New Zealand; it clarifies the effect of dual citizenship; it replaces the term “enemy alien”; it makes it a question of law whether a person owes allegiance; it makes simple amendments to the offence provisions; and it ensures safeguards for protests, advocacy, and industrial action. It is a simple bill. Let’s forget the fiction; let’s focus on fact. I commend it to the House.

Tēnā koe, Mr Speaker, and thank you very much for this opportunity. Foreign interference grows and evolves when our communities let their guard down. Foreign interference takes many shapes and forms in our communities far and wide. For the most part, New Zealanders go to bed at night and sleep well, blissfully unaware of actually what is happening out there in this country and, indeed, around the world.

In my years as defence Minister, I saw firsthand the challenge that our services face and, of course, the challenges that this country faces when it comes to matters such as espionage and to matters such as foreign interference. The hardest part during that time was trying to decipher between the overt kind of foreign interference and the covert kind of foreign interference.

In terms of the overt: when you’re engaged in espionage-like activity, it becomes pretty clear that it’s not the right thing to do, and there are mechanisms to ensure that that person or those people who are found to be engaged in that kind of espionage or those kinds of acts certainly come before the judgment of the courts and, indeed, the public scrutiny that this country should expect.

However, the more covert part is the challenge, and I take the point of a number of colleagues on this side of the House, in particular, who talk to the fact that for the large majority in our community, simply scrolling on social media becomes a part of that grey area, because a large part of that interference, a large part of that influence, comes through social media and other mechanisms which might not be so overt to all of us here in the House. But it is a challenge and it is a question that should be asked.

I understand that through the course of this bill there is some good engagement, and, indeed, I know members on this side of the House offered a number of amendments and suggestions that could strengthen this bill and make it in the shape where we could support it, which is what we will be doing this evening—but we still do have some questions. What we know, too, when it comes to matters such as foreign interference is that they evolve quickly, they change quickly, and, of course, they’ll outpace anything that this House does with respect to legislation. It just does; it’s a fact. In order to make sure that we can give ourselves the best protection, we must make sure that legislation—this particular bill and any future legislation that can be proposed in this House—can look towards making sure that it is fit for purpose.

Now, I know, and we all know in this House, that, particularly led by this Government, there seems to be a very “big stick” approach to these matters. “Increase the fine and that’ll deter them.”—that’s usually what we hear: “Increase the fine and that’ll deter them.” Well, my experience in this space as a former Minister is that fines don’t deter them, because the outcome of foreign interference is far greater than any fine that can be thrown at them by this House. That’s just a fact. We’ve got to ask ourselves, then: are bills fit for purpose?

A number of the amendments in this particular bill are, I think, smart ones. They’ll continue to look towards making sure that we can have a bill that is fit for purpose, but there are still questions and those questions must continue to be answered. We are welcoming many more people on to these shores to fill key roles in our workforce and in our community. These people find themselves in our community. They become a big part of our community, and what we don’t want is the kind of reverse effect where everybody looks over their shoulder or takes a second look at our whānau, takes a second look at people in our community who call New Zealand home. And they have every right to; they raise their families here. They’re involved in our community, they’re a big part of our community, and most people think that’s just in Auckland. That’s not true. We have so much diversity right across this country, yet the views across all those different places can differ significantly from Auckland all the way down to the South Island. It’s important that we make sure that in this approach, in this particular bill, we can continue to have a mind towards communities to keep them safe and those who call our communities home.

I take the point made by Dr Lawrence Xu-Nan with respect to his community and how we can make them feel safer here in New Zealand. This bill does part of that and we support that, and that’s why we should, but we also know that there are other matters that continually come up in this House that aren’t necessarily covered by this bill but are looked to be covered in other parts that a Government might explore in its legislative agenda, such as matters like free speech. We’ve already been very clear on this side of the House and in the Labour Party that the right to protest is part of being in a good democracy, to make sure that whānau and people right around this country can stand up for what they believe in, as long as they do it safely and as long as they don’t impinge on the rights of others. But they can make their point really clear.

However, the problem when we talk about foreign interference in the manner that I’ve heard this evening and, indeed, through the passage of this bill, is that, sadly, that brings more question marks with respect to parts of our community, and I’m sure that’s not the intention. However, that is the language that we’re hearing and that is a concern to us.

Steve Abel: I think you should vote against it.

Hon PEENI HENARE: I appreciate Mr Steve Abel and his approach and the Green Party’s approach to this. I understand my colleagues in the Labour Party worked really hard to make sure that we could express our view, in particular. But what I want to be very clear on is I can’t stand here in the House and agree with much of what my tuākana Rawiri Waititi said, and that’s simply because of my experience as a defence Minister. It’s easy to stand up and say, “Oh, it’s an alignment that looks like this.” Well, actually, if you look into those particular agreements and those treaties of the past, they are very different—they are very different. While I understand his concern, I can’t support much of what he’s said this evening simply because, for the most part, it does seem rather inflammatory. It does seem, as a view towards gaslighting, something that is actually very serious. It should be considered by all members of the House as something that we can engage in in order to protect citizens in this country.

As I’ve said, we will be supporting this bill. We want to make sure, though, that we continue to keep an eye on these very important matters to make sure that, however this bill moves forward into the future—and, indeed, any bill that might come after it that looks towards matters around countering foreign interference—it is fit for purpose, given the quick and evolving nature of foreign interference around the world.

During this urgency session, we spoke on a number of bills around the national interest. The national interest is something that must continue to be a test where we look towards protecting the national interest, at all costs. I think that for a number of the bills that have been passed through this urgency, we’ll continue to debate them. We’ll continue to make sure that we test them and challenge them so that that particular matter of national interest is held to the forefront.

Finally, from me, many of the members in this House won’t know it, but there is a significant and somewhat large community in the intelligence and security space in this country. You may not know it, but you’ll walk down Lambton Quay and you may pass some—but that’s the beauty about the skills that they have, is that they seemingly are just a part of our community. You wouldn’t recognise them if you’re walking up the road with your whānau, but they play an important part in our country’s security network and architecture, and I want to acknowledge all of them. There are a number of agencies that are involved in that. They all have different parts—from information to the matters that the New Zealand Defence Force will cover off. So, just finally, I want to acknowledge all of them.

They’ve gone through a number of changes in the past few years. There is a strengthening of the architecture of security in this country, which I actually encourage and I support. Why? Because we’ve spoken many times in this House about the growing geostrategic competition, and it’s important that New Zealand continues not only to protect itself but, also, to play its part in an international network to protect sovereign countries around the world. That is the least we can do. That is part of making sure that a rules-based order is something that this country and this democracy continues to believe in, while also protecting our own interests.

So in that vein, I will support this bill for my part as the speaker for the Labour Party, and we look forward to looking towards the next bills as we sit here in urgency.

Thank you very much, Mr Speaker. That was quite a balanced and reasonable contribution from Peeni Henare, and I commend him for it, but the gap between his contribution and the others that we’ve heard, particularly from Te Pāti Māori, is extremely stark. The tinfoil-hat wearers over on that side better have a listen to, actually, what their potential coalition partner just said in his contribution, because the gap is incredibly large. Actually, the reason we support this legislation and are bringing it about is because there is real common sense behind it. There is not the scaremongering that those on that side of the House are so concerned about. The Trumpism that Rawiri Waititi talked about and the Atlas Network and all of this sort of stuff that they constantly go on and on about is just complete rubbish—it is complete conspiracy theory playbook 101. This legislation strengthens New Zealand’s criminal law to better prevent and respond to foreign interference which is targeting New Zealand. It is a good thing, a common-sense piece of legislation. That’s why I commend it to the House.

Thank you, Mr Speaker. I am the co-chair of the Inter-Parliamentary Alliance on China (IPAC). This is a cross-party group—which means that it is supposed to not be political—which looks at the influence of China around the world. One of the things, from my about five years in that role, that I’m very clear about is that the best protection from any foreign interference is to be country-agnostic and to assume that there is interference from people from all over the world, from State actors everywhere, and to safeguard and protect your own sovereignty. I think, for those reasons, I do support this bill but very much with the caveats that were raised by the Hon Dr Duncan Webb, because it is a fine line in terms of drawing the net to make sure that human rights are observed.

I’d like to make the point that I had concerns in my IPAC role about potential unintended consequences of this bill for Chinese New Zealanders. There is evidence, through IPAC internationally, to show that sometimes, while the intention of a bill like this may be to provide more support and freedom of speech and safeguard from coercion, in fact, the experience can be one where they tend to go underground and will be less likely to engage with New Zealand officials—such as the police, for example—and may also face more stigma and harassment. I guess we have to watch and wait and see, and the fourth estate will have a very important job to do in terms of assessing what the real impact of this legislation will be.

It is intended to provide those safeguards, but I have to say that sunlight is the best disinfectant for foreign interference, and my nervousness is also that the Government members are trumpeting this as if it is a bit of a silver bullet when, in fact, as the Hon Peeni Henare said, foreign interference comes in many forms. It can be a real slow burn. We see influence via business, via funding, via university research, via land acquisition, and also, actually, in the interests that make our strategic assets vulnerable. We have seen, for example, legislation go through this House this year that has weakened our overseas investment rules, which I think puts in peril, or at least at risk, some of our strategic assets—these are things like ports, airports, infrastructure, and so on—not only because, ultimately, in some countries they can be taken over by a foreign State in conflict but, also, it does make countries more vulnerable to the funder. That’s just a reality of life, and that is country-agnostic. We need to think very carefully about the strength of our national interest rule.

Also, the bill is pretty narrow. It is targeted at individuals around covert activity, deception, coercion, corruption, and so on. To me, it seems a little bit like the anti-smacking law: while the intent is good, it is very difficult to draw the lines, and it’s going to take some real judgment from the authorities in terms of how this is applied. In the area of foreign interference, that is extremely difficult, because it’s inevitable that politics will come into play and that the executive of the day, depending on how they see the world, could have a bearing on the way these laws are interpreted. Again, I would stress that being country and actor - agnostic and really looking at behaviours and safeguards is the only way to approach this when applying the law.

The other thing I would say is that we’ve got numerous things we need to do apart from safeguarding our national security laws. I think we need to really resource strengthening cybersecurity. We’ve seen data breaches already. We need more awareness. I feel, when I speak to IPAC colleagues from around the world, that there is a level of naivety in New Zealand around the exposure to foreign interference from all sorts of States. We probably need to have stronger lobbying disclosures, in my view, and that raises issues, but it’s a discussion that needs to at least be had. There needs to be more inter-agency sharing of data. We need to really monitor disinformation and misinformation campaigns, and there’s some great models of that, for example in Taiwan, where they have an active unit set up to assess the veracity and to provide counter information where that information is shown to not be credible. As I’ve said, I think we need more resourcing for our intelligence agencies.

This is not a silver bullet. It’s a good start. I hope that it has the intended consequences, particularly for our Chinese nationals living in New Zealand.

Thank you, Mr Speaker. The Crimes (Countering Foreign Interference) Amendment Bill strengthens New Zealand criminal law. It ensures New Zealand criminal law sufficiently addresses the harm of foreign interference, and it will better equip relevant agencies to hold people to account. I commend this bill to the House.

Thank you, Mr Speaker. I, like my colleagues in the Labour Party, rise to speak in favour of and support of this bill, but I would just like to start by saying, in reply to Tom Rutherford’s comments that he made earlier congratulating Peeni Henare—quite rightly so; I thought that was an excellent speech, as well—I think, in terms of that big gap in the question of balance, I would have liked to hear more of an acknowledgment from that side of the House that, yes, this is something that we need to do, but, eyes wide open, we are touching on rights here. There is genuinely some broad language—for example, in the intent space, there is “ought to know” that they are concealing their identity, etc. There is quite broad language, and when we move into a space like legislating in the security and intelligence space, there are times when we must do it, but we have to also acknowledge that there are rights in play, and there are pieces of legislation that should deservingly be under review and active monitoring. This is certainly one.

I am often concerned that, sometimes, when we shift the lines of the law, it will shift behaviours, as well. What we’re seeing internationally is the growth of transnational repression by some States. Often, we’ll see the hard end of that in the news. I read an article by Human Rights Watch, and it was titled “We Will Find You”. It was a story about how some Governments continue to actively monitor dissidents when they leave their countries and find ways to pressure them, or even, at times, execute them. One quite famous example of this is Jamal Khashoggi, who was a Saudi national who left Saudi and went to Istanbul, and he was entering a building to get marriage papers for him and his wife when he was executed inside, while his wife was waiting on the outside. Those are the stories that make it into the news, but in reality, what is happening more and more—and Freedom House reports this—is that Governments are often putting pressure on students to undertake various seemingly innocuous activities, which they must do or they lose some of their benefits in their home country, or family members might be losing benefits, as well. That is happening, and I do think we need to be aware of shifting behaviours as we put this legislation into place.

I often look to Canada in this space as a model of a shift in terms of legislation and policy and what we could be doing or what, perhaps, we might do next. This year, Canada appointed its first foreign interference commissioner, and they did so off the back of a public review on foreign interference last year. This was one of the steps that they took, and the quote that came out with the announcement included: “We put the world on notice that Canada is an independent, sovereign nation with a clear ability to ensure the safety and security of Canadians.” They were basing this move very firmly on data that showed that it was happening to a huge extent. We haven’t done that in New Zealand—we haven’t done a public review that shows us all the corners of where interference might be. This piece of legislation is coming out of a Government piece of work, but there hasn’t been that broader public review. The Justice Committee does often include this as a component on its election review, but my view is that it’s timely to do a more public review, over a number of years, and that this piece of legislation should also become part of such a review to test whether it’s working in the way that we wanted it to.

There were a number of amendments that were proposed—both by submitters but also at the committee of the whole House stage—which weren’t included, and also questions for clarification that I agree with my Green Party colleagues about. We were referred back to common law principles, and I made the point that, well, common law defences, in particular, can only be incorporated if they are reasonably clear. In this case, they aren’t, in terms of when you can denounce your citizenship and whether you still owe that allegiance or not. There are certainly things in the law as it’s written now that do need to be tested, potentially challenged in the court, and then brought back to the House in terms of a final review, a periodic review, at some stage.

I thought other proposals that the select committee made were excellent, including one that many have referenced about ensuring that the question of allegiance is one of law. The difficulty is that, regardless of that being clarified in the legislation, we will still have a question of fact largely before the courts because it isn’t defined as well as it potentially could have been. The other issue that was raised was about the definition of improper conduct and, also, clarifying the scope of committing an imprisonable offence to benefit a foreign power.

The Law Society also made some very interesting points, I thought, including a very novel argument. They suggested considering providing a defence, equivalent to a proviso that they had suggested earlier in their document, that if there is conduct counselled or procured that’s lawful in the jurisdiction where it occurs but unlawful in New Zealand—and they gave the argument of someone who had been instructed through the military to do some action that might be considered mutiny, but they were directed to do it lawfully in the third country—we should, therefore, take into account circumstances where we wouldn’t necessarily want to have liability incur in those circumstances.

I want to make just a point about the House’s consideration of issues like this. We haven’t seen the Government members engaging with some of the rights issues that were raised in select committee—not in this discussion. Granted, some of them did engage, in the select committee process, with those rights issues and where the balances ought to be. I did think that it was unfortunate that the section 7 report didn’t conduct an adequate analysis of whether the limitation of the right to freedom of expression was reasonable or not. Looking at section 22 of the section 7 report, it says this: “The right to freedom of expression has been interpreted as including the freedom to seek, receive and impart information of all kinds. However, it is accepted that the exercise of the right needs to take into account other rights and interests and may be subject to necessary restrictions, as provided by law.” That’s it—that’s all it says. “One such restriction is the protection of national security.” It’s possibly the broadest framing of how you could justify a limitation on the right. It goes on to say: “We consider the limits on [section] 14 embodied in the amendments … are demonstrably justified in a free and democratic society.”

I’m a bit troubled—especially given the importance of the right to freedom of expression—that there has been such a loose and light assessment of (1) whether the limitations that are set out in the existing drafting are reasonable and (2) whether there are other ways of drafting the limitations to ensure that there isn’t an over-impediment into freedom of expression. Again, I go back, as the final example of that, to the new section 78AAA, where one of the mens rea for the offence is that “the person knows, or ought to know that they are engaging in the conduct for or on behalf of another foreign power;”. You can imagine, with that many degrees of separation, that there may be cases where individuals simply do not know.

Once again, while I am supporting this bill, I do so with eyes wide open that there are rights issues here, and I urge the House to consider a more thorough review of security, intelligence, and interference—including transnational repression. For now, I commend the bill to the House.

Thank you, Mr Speaker. I feel really privileged to be in this position, where, as the last speaker, I am ushering the Crimes (Countering Foreign Interference) Amendment Bill from a bill stage to an Act of Parliament stage. As our excellent Minister of Justice said earlier, foreign interference is not acceptable. As someone of a Lebanese background, I know firsthand what foreign interference does to countries like my beautiful parents’ homeland of Lebanon. Sometimes it’s very inconspicuous; it’s masked as the greater good. But it was, in fact, foreign interference and still is in Lebanon, so I’m glad that we are passing this tonight. I commend this bill to the House.

I declare the House in committee for the consideration of the Crimes Legislation (Stalking and Harassment) Amendment Bill.