Crimes (Countering Foreign Interference) Amendment Bill

Members, the House is in committee on for further consideration of the Crimes (Countering Foreign Interference) Amendment Bill. When we were last considering the bill, we were debating Part 1. This is the debate on clauses 3 to 15, “Amendments to Crimes Act 1961”. The question is, again, that Part 1 stand part.

Thank you, Madam Chair. I’m looking forward to continuing this debate on this bill today with the Minister, and I note that we have the officials here today with us, which is good as there were a few questions I had last time we were considering this bill that I didn’t get a response to.

I will start with new section 2A(3). I had a question about the definition of a person who is in New Zealand who obviously owes allegiance under that section. The question I have is: who is covered by the statement “who is in New Zealand”? The reason I raise that question is that the Law Society raised an issue on this about there potentially being a difficulty with the reference to “Persons in New Zealand” due to the need to reconcile, respectively, the Crimes Act 1961 and the Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act 1977, which perhaps from here on I’ll just refer to as the economic zone Act.

In section 2 of the Crimes Act, it defines “New Zealand” as follows: “New Zealand includes all waters within the outer limits of the territorial sea of New Zealand (as defined by section 3 of the … Exclusive Economic Zone Act)”. That’s one definition. It’s referring then to the second Act. Section 3 of the economic zone Act then defines “territorial sea” as encompassing the sea within 12 nautical miles of a baseline, being the lower watermark along the coast of New Zealand, including the coast of all islands. However, in that same Act, in the economic zone Act, section 2 has a definition of “New Zealand”, which “includes the Ross Dependency”. The statutes, essentially, don’t fit together very well on the Law Society’s read, and neither do they on mine. The question is whether the Ross Dependency counts as being part of New Zealand or not—so whether the lean is on section 3 of the economic zone Act or section 2 of the Crimes Act.

The second question I have on this part as well—still on new section 2A(3)—is how, if at all, the proposed law applies to Niue. This is another issue that the Law Society raised in section 3 of the Niue Constitution Act. In section 3 of the Niue Constitution Act, they are self-governing. However, section 6 provides that “Nothing in this Act or in the Constitution shall affect the responsibilities of Her Majesty the Queen in right of New Zealand for the external affairs and defence of Niue.” The question is: is there an application or not? When I asked this question last time we were considering the bill, the Minister’s response was, “Well, it applies to everyone who is in New Zealand, and that’s what the bill says.” I don’t think that sufficiently answers the two questions—one around the Ross Dependency and the other one around Niue as well. I potentially have some more questions on other parts as well soon, but perhaps I’ll leave that question with the Minister for now.

I know that it has been a little while. I just want to also do a very small recap because, again, my previous question to the Minister hasn’t had a response or acknowledgment yet, and that is around new section 2A(4), inserted by clause 4, regarding persons outside of New Zealand. This is something that we haven’t quite covered. Part of that is to do with how we are particularly looking at new section 2A(4)(c)(iii). There it states that in terms of a person who is outside of New Zealand owing allegiance if the person has family or property in New Zealand, that demonstrates an enduring connection to New Zealand.

I guess the question to the Minister is because when we’re looking at new section 2A, that is of the highest order in terms of statutory interpretation, just behind the interpretation section, but “enduring connection” is a new term that has just been introduced under this bill. So I’m checking with the Minister how that enduring connection is supposed to be interpreted and what is the degree of enduring connection in relation to the idea of family or property.

Now, the idea is also that family is not a definition that was given under section 2 of the Crimes Act, ergo there needs to be a definition that the Minister is able to provide for family. Property, on the other hand, is a defined term under section 2 of the Crimes Act, but property could also include things like debt or anything like that. So, again, to what sort of extent are we interpreting the relationship of property and enduring connection? That’s my first question to the Minister that I would appreciate a response on.

For my second question I’m just going to move ahead to new section 69(1)(1A), inserted by clause 7. I want to focus on when we’re looking at the idea that the person who owes allegiance to a Sovereign in right of New Zealand commits an offence if the person outside of New Zealand aids, incites, counsels, or procures the doing or omission outside of New Zealand. Now, the aids, incites, counsels, and procures is relatable to section 66 of the Crimes Act around party liability, but in this particular context, I want to check. Now, party liability is an incredibly tricky aspect of the criminal law and has a lot of case law around it, and I just want to check with the Minister: how would this be assessed and how would this be judged in terms of all four? All four are a little bit different. Aiding, for example, is probably the most straightforward perspective, but in this case, particularly when we’re looking at the definition that we’re discussing here under clause 4 on a person who owes allegiance to a Sovereign, how would we see counsels or procures play out, particularly if the counselling and procuring was done offshore or overseas? I’ll leave those two questions to start with.

Thank you, Madam Chair. Good morning to the committee. Already, there were some very detailed questions from Vanushi Walters and Dr Lawrence Xu-Nan. To start with, Vanushi Walters: hopefully, persistence pays off, and we’ll see by the critique of your answers. I’ve been advised, under the definition in the bill, if someone is in New Zealand, they owe allegiance unless one of the exemptions relating to the diplomats and enemy aliens apply. This is because, generally, foreign nationals are entitled to the protection of the New Zealand Government while in New Zealand. The nature of allegiance is reciprocal, so the foreign national is subject to and is required to comply with the laws of New Zealand whilst present in our country. The definition is clear as to who this applies to.

Regarding the Ross Dependency, Niue, and, also, include there the Cook Islands, persons owing allegiance who are outside of New Zealand are clearly defined. These explicitly include persons who hold New Zealand citizenship. Beyond this, it is intended that the status of people in New Zealand’s Realm jurisdictions be determined by the common law. Maybe going a bit more tightly defined, in response to the question, a New Zealander in the Ross Dependency will be covered. The status of a foreigner in the Ross Dependency or Niue will be determined by common law.

Also, while I’m on my feet, to respond to Dr Lawrence Xu-Nan, with his typical, quite-detailed, punctuated questions: a judge will make the determination of whether a person owes allegiance, as it’s been made a question of law. This was recommended by the Law Society and was added in at select committee.

“Property” is defined in section 2 of the Crimes Act. It is used, through the Crimes Act, and regularly considered and applied by the courts. The term “family” is not defined in the Crimes Act nor under this bill. It will be left to the courts to determine the scope of the term “family”, depending on the facts and circumstances of the case—in particular, whether the family relationship demonstrates an enduring connection to New Zealand.

Thank you, Madam Chair, and thank you to the Minister for early engagement on this. Just a quick follow-up question before I get into an Amendment Paper in my name. I wonder if the Minister could give us some clarity, because there will be those of us from the Cook Islands and Niue who have used our own passports wondering how this would impact us. I heard the Minister saying that it will be left to the common law, but what does that mean? What will that mean for those of us—for example, the 80,000 Cook Islanders—who can actually go through a bit of a process and actually have all the privileges and rights as Cook Islanders, in this case, living in the Cook Islands as well? I have gone through the process myself. My oldest child has. To have that clarity in terms of what the position is with the common law right now for those of us in that particular circumstance would, I think, be good for us to know. It would be good for those of us in the Realm countries to know as well.

I want to turn the Minister’s attention to my Amendment Paper 431, which is not related—but maybe it is; it’s all kind of related—and in my Amendment Paper, clause 10, new section 78AAA(4A)(a), it says, “after ‘a profession,’ (page 7, line 2), insert ‘advocacy,’ ” and “after ‘or unpaid,’ (page 7, line 3), insert ‘or in their personal communication,’ ”. The purpose of this Amendment Paper is the understanding that there are other roles that people play. Yes, doing things in terms of your normal business or as a part of your job or occupation is fine, but people are often more rounded than that, and the term advocacy is in there around “What about people working in human rights areas?”, “What about people working in different environmental areas?”, “What about people engaging in different activism?”

Activism, in my view, can strengthen our democracy, can improve our democracy, and can improve our processes, so my question is around whether the Minister would, first of all, accept this amendment, and if not, why not? Then, also, how would the Minister unravel and unwrap, if he isn’t keen on accepting this amendment, in terms of making sure that those avenues for advocacy, which are incredibly important, are protected?

The questions could be: how would the Minister see, if this amendment is not accepted, that individuals can engage lawfully in advocacy or activism and will not be unfairly targeted under this particular bill? Could the Minister give us some examples and perspectives around the bill as it is currently worded? Why does it exclude advocacy or personal communications, given that many groups—I mean, I can’t count the number of WhatsApp groups that I don’t want to be part of that I end up being a part of, and Signal groups. The Minister is laughing. He’s probably had his pinch as well.

Francisco Hernandez: And that’s just the Greens!

TEANAU TUIONO: “And that’s just the Greens!”, Francisco Hernandez says to me as well. There has to be some way that people aren’t caught up in this, and if the Minister could provide some light on that, that would be good.

Also, could the Minister clarify how the bill would protect the privacy rights of citizens who use encrypted messaging or secure communication tools just for personal use—not just human rights advocacy or activism, and environmental activism and that kind of thing as well, but just in their everyday life. Some light gathered there would be really interesting. And, I guess, how would the Minister distinguish between legitimate advocacy and community organising, and those types of activities that could actually fall under the phrase of “improper conduct for or on behalf of a foreign power”? If the Minister could help to unravel that for the committee, that would be very helpful.

Thank you, Madam Chair. I just have one relatively short point, and it’s around clause 7, new section 69(1B)—this is the penalty provision: “A person who commits an offence against subsection (1A) is liable to imprisonment for a term not exceeding 14 years.” That is the offence that Dr Lawrence Xu-Nan spoke to, which is aiding, inciting, counselling, or procuring, but not conspiring, of course.

The interesting thing is that aiding and abetting, to use the old language, is generally considered a lower offence than doing it yourself. Someone who is engaging themselves in foreign interference would usually be considered more culpable than someone who—if you take “counsels”, for example, it is an offence for me to suggest, on behalf of a foreign power, that someone go and spray paint an embassy. That is acting on behalf of a foreign power and doing an illegal act. Doing it is the serious offence; me kind of suggesting, counselling, or even giving them a can of spray paint—that would be aiding. Now, should that act of giving someone who is determined to engage in foreign interference on behalf of a foreign power a can of spray paint be the same penalty?

As I understand my criminal law, in almost all other situations, it’s not, but here we have a maximum imprisonment of 14 years for suggesting someone troll someone on the internet or offering someone a can of spray paint. They’re probably the obvious ones—the aiding ones and the counselling ones. That, in short, is my question: why is it such a serious penalty for an offence that is not being the main perpetrator but being a party to the offence?

Thank you very much, Madam Chair. Just responding to, I think, probably the latter questions of Dr Lawrence Xu-Nan, I’ve been advised that the usual rules which apply to party liability generally will be applied to section 69, amended by clause 7. There is nothing unusual about the terms, which are regularly considered and interpreted by the courts.

To start my response to the questions by the member Teanau Tuiono, I would point out—and I’m sure it was discussed during the Justice Committee process—there is no need to include “advocacy” in new section 78AAA(4A)(a), inserted by clause 10, because it would introduce unnecessary duplication into the offence. “Advocacy” is already included to make clear that engaging in advocacy does not by itself provide a sufficient basis to infer a person is intending to, or is reckless as to whether their conduct is likely to, compromise a protected New Zealand interest.

Thank you, Madam Chair, and thank you to the Minister for Mental Health for the answers thus far. That was very much appreciated in terms of getting the substance of the last answers.

I do want to ask a question about a change in the bill. In the original iteration, under new section 2A(3)(c) in clause 4, the first item, I guess, on that sub-list was “the person is an enemy alien”, and that has been removed post - select committee. The new subparagraph (iaa) has been inserted, which says, “is a citizen of a State that is at war with New Zealand;”. My question is really a consistency one here, as well, in terms of the Minister’s intention about what should be covered.

I’m just noting that in the Crimes Act, there’s a definition of “enemy” in section 73, “Treason”, where the definition of “treason” includes “an enemy at war with New Zealand, or any armed forces against which New Zealand forces are engaged in hostilities, whether or not a state of war exists between New Zealand and any other country;”. I’m just checking whether it’s the Minister’s intent that the scope of liability under section 73 wouldn’t apply in this case, and that that is an active policy decision in terms of the shift from “enemy alien” to “that is at war with New Zealand;”. The proposal from the Law Society was including a definition of “enemy alien”, so that, I believe, it would be consistent with the Crimes Act provision, but I’m just wanting the Minister’s comment on that.

The other question I had is on the same issue, but it’s on a different point to the one that a colleague has made. Teanau Tuiono asked about what it means to have that reference to the common law in new section 2A(2)(b), and I am also of the view that that is problematic in terms of its vagueness. But my specific question is around what the common law provisions that would apply are when in relation to repudiation or denouncing citizenship.

Generally speaking, as I understand it, common law concepts can be relevant to determining liability for alleged criminal offending, both in relation to the defences under section 20 of the Crimes Act and determining the meaning of words or phrases in the definition of offences. However, that is where the common law is both reasonably accessible and it aligns with common law usage, and in the case of repudiation and denouncing citizenship, it isn’t clear—neither of those qualifications are there—which means that it would be very hard for a decision maker to understand the scope of the common law provisions that apply in that case.

I mean, the Law Society expressed a view that any prosecution be based only on a renounced allegation risk being an abuse of process, and said that that should be excluded from the relevant offence. However, again, the bill isn’t explicit about this, and there’s this broad statement that relies on the application of the common law. Now, I think precisely for this issue, that is a problem.

The other proposal, given we’re at committee stage, that I just wanted to float with the Minister is the concept of temporary allegiance—so understanding and requiring allegiance on the basis of a person being in the country. I’ve mentioned this in the past, but there was historically an understanding that people on short-term visas could be subject to allegiance requirements for the period that they’re in a country, but otherwise they would not, and that seems in many ways the more sensible way to treat offending, as people can come into the country with eyes wide open. I do have a few more questions, but I’ll leave those ones with the Minister for now.

I’m going to call the Hon Ginny Andersen, because I heard someone calling from over there before, and I wasn’t sure which one of you it was.

I did try earlier, but I was a wee bit slow that time, I do admit. I’ve got some questions for the Minister, and I just want to clarify, because a range of the existing offences that criminalise foreign interference are there already. So we’ve confirmed—and the committee process has been good—that we have existing offences over a wide range of harmful activity, and that may include foreign interference. Those offences criminalise activities that can be undertaken as part of any foreign interference efforts. An example would be offences related to bribery, corruption, blackmail, harassment, and any sort of hostile actions against States, such as even treason or sabotage.

Our current criminal offence regime also accounts for many of those things in the Crimes Act, but it is noted that there are some concerning activities that are not captured by existing offences. I’m really interested in the Minister’s view as to whether there is some additional work—we know the changes in here will add to the suite of actions that can be undertaken by law enforcement and to take action more proactively—but it’s also important to note that as we receive new intelligence, as information is gathered by New Zealand and our security services, I’m interested to know what the ongoing programme of work is to make sure that we keep, I guess, up to date in the way that we’re responding. Those activities are not captured by the existing criminal law, and that’s specified in the regulatory impact statement.

I’m interested to know whether there are some additional things that are not captured within this legislation that the Government is looking at or aware of that we can remain vigilant of and consider how we can make sure our laws are always kept up to date, because this is essentially the first piece of legislation in some time where we’ve updated those previous offences. So I’m interested to know: is there a programme of work ongoing that would review whether these are working, review whether we need to update them, to make sure that there are clear lines of communication between what intelligence we receive and what types of offences are required to make sure that we remain, I guess, resilient or resistant to attempts of foreign interference? I’m interested to hear that.

“[T]he limited nature of [partial] liability allows New Zealand citizens, in some instances, to assist foreign operatives to commit espionage acts in or [even] outside of New Zealand, while remaining immune from criminal liability”. They were the sorts of things that were found in that overarching review that looked at legislative provisions. I’m interested to know whether the Minister considers that the additional offences within this legislation addresses some of those shortfalls that were found in their overarching review; and, if not, what is the Government doing to address those?

Thank you, Madam Chair, and good morning to members of this committee of the whole House. I’m grateful for the questions that have been posed in my brief time so far in the chair, and I’ve been handed some notes that relate to a question asked by the Hon Dr Duncan Webb. I’ll do my best to address that.

I’ll start in reverse order—so with the comments of the Hon Ginny Andersen. First of all, in relation to her point regarding adding to the suite of law enforcement opportunities over time: I think her point is well made that, as our updated understanding, essentially—if I can use that term—in the kinds of threats that might be posed advances, of course, her point is the right one, which is that an ongoing programme, if not a formal programme with a capital P but a process of reviewing or a commitment to understanding how the environment may change over time, would be prudent, such that offences and the regime as a whole could or should be updated.

I would just make the obvious point that the price of freedom is eternal vigilance. I think you can feel assured that the Minister and, indeed, the Government as a whole are committed to an ongoing understanding of the threat environment, so to speak, and would be determined, I’m sure, to make any necessary changes in the future—albeit respecting, of course, that, from a civil liberties point of view, we don’t wish to have broader expression of offences than is appropriate at any given moment, because we don’t want to anticipate further types of offending and catch those in a way that would be unreasonable such that people don’t understand the law. Of course, it’s a key element of the rule of law that the law be accessible and knowable and not retrospective, as it might, effectively, be seen to be in the event of very broadly expressed provisions.

In terms of Vanushi Walters’ typically astute points: first, in terms of the common law, I take the point that she has made around the fact that it’s ordinarily the case that, to the extent that we would even rely on common law at all to inform a criminal or quasi-criminal regime, we need to have the greatest clarity and accessibility possible. I don’t think there’s anything particular I can add about whether that would be required in the case of repudiation or renouncement provisions. It seems to me sensible that the more accessible and clear such law is—and common law is, by definition, law, albeit of a different variety than statutory law—then that would be more helpful and perhaps might be relied upon more fully, but there isn’t anything, to my understanding, in the legislation that specifies that. I don’t wish to go out on a limb and suggest that that’s the case definitively.

In terms of temporary allegiance, I’ll simply acknowledge the point of Ms Walters that it would be more sensible, in her view—and I’m sure I’m characterising her comments correctly—to have a temporary allegiance as opposed to a permanent allegiance related to non-permanent people being in New Zealand. I don’t know that I can take that point much further in terms of what the law could or even should say.

As for the Hon Dr Duncan Webb’s comments around penalties and challenging or questioning, at least, the relativity, I suppose, of the offences: my understanding is that the penalty referred to has been carried across from the existing law, and it’s considered as serious as espionage and treason—that’s in relation to section 69.

I don’t know that there are any other comments I could make at the moment that would be helpful, or any comments that I could make that would be unhelpful—members will judge—but I look forward to the rest of the committee’s consideration.

Thank you, Madam Chair. I’m going to make another short point, and I am leaping ahead but I wanted to do it because it’s an important one. It’s around the substantive offence. The definitions are actually quite hard to find your way around, but I know officials would know them inside out. The guts of it is this: it is an offence against this Act to commit an imprisonable offence on behalf of a foreign power. It also says that it’s not an offence simply to engage in a protest. Now, since this legislation was considered by the Justice Committee, we have seen legislation around protests outside people’s houses, and a disruptive protest targeted at a person in a residential address has become an imprisonable offence.

I just want to be clear—and I think, to be perfectly honest, the answer is yes. But the question is this: if, on behalf of a foreign power, I organise or participate in a protest which is intended to be disruptive outside a person’s residence—an ambassador would be the most obvious one, but anyone—am I liable for foreign interference and, therefore, liable to 14 years in prison for engaging in a disruptive protest?

Thank you, Madam Chair, and thank you to the Minister for his responses. It sounds like there may be some agreement in terms of the status of the common law. I think the problem we have is that the current provisions make it feel like the common law position of retaining your obligations of loyalty may endure even if you have renounced, which I think is problematic in the legislation but—yeah, unfortunate that it won’t be fixed at this stage.

I have another suggestion. In terms of understanding whether someone does owe allegiance for the purposes, or not, of criminality, whether there could be merit in including an officially induced error defence? So where an individual has sought or applied for confirmation from the New Zealand Government as to whether they owed allegiance to the Crown in right of New Zealand or not, had been advised that they did not, but were later charged with a potential offence—at this stage, that is another matter that’s potentially uncertain. One can imagine situations where this might actually happen. I think—I could have this wrong—it might be Canada that has a register of third party interests, where people who are in a country and who may be senior members of the Government but they’re not there for diplomatic purposes may register the fact that they’re in the country and the things that they will be doing so that it’s all very clear and transparent.

We obviously don’t have that, but I can imagine a situation where people would want to be very clear about which role they held, and where people travelling to New Zealand or who are of New Zealand descent but born in another country, people of dual citizenship—we can’t imagine that we would know all the circumstances that are covered. So that just feels to me like something that would be worthwhile exploring, as I’m sure a number of us have a lot of questions around in relation to this bill. If the Minister does think that there’s potential for something like that to be included, I could certainly draft something up on the go.

The other question I had is around section 69 amended. This is in clause 7 of the bill, which introduces subclause (1A): “A person who owes allegiance to the Sovereign in right of New Zealand commits an offence if the person, outside New Zealand, aids, incites, counsels, or procures the doing or omission outside New Zealand”—so outside New Zealand is key here—“by any person not owing allegiance to the Sovereign in right of New Zealand, of any act which, if done or omitted outside New Zealand by a person owing such allegiance, would be [one] of the crimes mentioned in subsection (1).” So that would be a crime inside New Zealand.

A couple of questions here. The first is whether it’s intended for the amended offence to capture conduct outside of New Zealand which has no impact inside New Zealand. The way it’s currently drafted, it does look to be that way. So just asking whether that is the intent of the bill and the provision.

The second is a suggestion that one of our submitters had proposed, which is to provide a defence that if it’s lawful in the jurisdiction where it’s done, it shouldn’t be counted within this provision. Right now, the test is whether it’s illegal in New Zealand as opposed to the country itself. So yeah, just clarifying what the intent is behind those two sections, and if there’s appetite for some drafting to make it clear what the intent is.

Thank you, Madam Chair. I’m going to move on to clause 8, and then start on clause 10, noting that clause 10 is one of the most substantive sections of this part.

First, I want to raise a question that the previous speaker, Vanushi Walters, touched on. I think this particular angle would be really good to get the Minister’s elucidation on, and I appreciate both the current Minister in the chair, the Hon Chris Penk, and the previous one, the Hon Matt Doocey, for their engagement and responses.

So when it comes to clause 8, inserting new section 69A, “Party to certain acts or omissions in New Zealand”, the first thing to note is that under “Relevant act done or omitted”, section 69A(2) says, “imprisonment for a term not exceeding 14 years.” Then, in subsection (4)—under “Relevant act not done or omitted”—it is 10 years. This is when you are looking from a perspective of party liability, as the Minister has mentioned before. But if you are reading it in the context of the Crimes Act, section 76, in terms of treason—as in an individual actively conducted treason, etc.—the penalty is “not exceeding 7 years”. And if you’re looking at section 77 of the Crimes Act, for mutiny it is no more than 10 years. So I guess the first question to the Minister is: why then is party liability a doubling of the penalty, as opposed to a person performing it themselves? So that’s my first question to the Minister.

The second question is more of a question of clarification. So subsections (3) and (4) of section 69A are “Relevant act not done or omitted”. That, to me, reads like it is a strict liability. I want to check with the Minister if it is the intention that when you’re looking at something like this, it is a strict or limited liability for any individual who owes allegiance to the Sovereign in right of New Zealand, when they’re committing an offence under that section, and that they are liable to no more than 10 years of imprisonment. So that’s my second question.

I want to start on clause 10—noting that there is a lot more that I would like to say about clause 10, but I’ll limit it to three questions for the time being. So in new section 78AAA, inserted by clause 10—and let’s start with subsections (1) to (4). Now, subsections (1) to (2), “Intentional conduct”—now we’re wading into mens rea territory. From a men’s rea perspective, the intention or knowledge—under subsections (1) and (2)—I kind of understand. But in terms of recklessness, under subsections (3) and (4), I want to check a particular scenario, because recklessness is in the sense of not just simply you acting on it or knowing of it—that there is even a benefit of doubt that the outcome may potentially even happen. So, in this case, when you’re looking at “engages in … conduct for or on behalf of a foreign power;”, if we’re looking at a situation where MPs or Ministers or public officials travel to another country and take their parliamentary devices with them without following through on the recommendation of, let’s say, parliamentary security, that would be considered recklessness. So, in those cases, let’s say a public official travels to another country, potentially using a device from here and that got found out, would that be covered now under sections 78AAA (3) and (4)—where that particular official, etc.—now would be charged with recklessness and would be looking at an imprisonment rate not exceeding 10 years?

So those are my three questions for the time being.

CHAIRPERSON (Barbara Kuriger): Can I encourage the member—when you asked about Part 10, you indicated you had some more questions. If you can succinctly do the rest of those questions in another call, I’ll give you one.

Dr Lawrence Xu-Nan: OK, thank you. I do have more questions, but, like I said, clause 10 has a lot of different parts. But I would like a follow up question later, on subsection (6) of section 78AAA.

Thank you, Madam Chair. I’ll give it a go—I’ve got a few different slips of paper here. Returning first to the question posed by the Hon Dr Duncan Webb in relation to peaceful protest that he says could be considered as criminal activity: as he’s rightly noted, there is other legislation that’s passing through this House that would create offences of a criminal nature whereby protesting in residential places could be deemed to be criminal in themselves. The question then is whether that imports into the kinds of ways that we would characterise foreign interference in this, if such activity was conducted on behalf of a foreign power.

At the risk of stating the obvious: first of all, all elements of that offence must occur, so I don’t think—and I’m sure the member didn’t intend to suggest this, but I do want to assure anyone who is following—that there wouldn’t be any kind of lower bar than that which Parliament is agreeing in relation to those kinds of protest offences against people’s personal property and so forth. The foreign interference element would need also to be satisfied as to whether it was carried for or on behalf of a foreign power and so on. I should also add that the Attorney-General would need to consent to proceedings, so there’s a safeguard in that, which complements the elements of the offence or the threshold set out in new section 78AAB.

In terms of some of the comments of Ms Ginny Andersen—in fact, I should flesh out my answer a bit more, having provided a reasonably high-level assurance that it seemed to me that it would be likely that there would be ongoing cross-Government work to address foreign interference into the future. I’m well advised that this includes work that is ongoing, and that it includes, but is not necessarily limited to, the Department of the Prime Minister and Cabinet, the New Zealand Police, the Ministry of Foreign Affairs and Trade (MFAT), intelligence agencies, and various ethnic communities. I’m sure I’m right in saying that these would be quite broad conversations that would also take into account perspectives of civil society and so on. It was earlier this year that the Ministry for Ethnic Communities, as part of an all-of-Government work programme to tackle foreign interference, released resources in 30 languages to better inform communities, in a way that’s understandable and clear to them, about what foreign interference is; how it can affect ethnic communities as well as New Zealand more broadly; and how to report foreign interference should they see it.

In terms of another comment—I think it was probably unrelated, but I think it was by the same member, the Hon Ginny Andersen—the bill does provide quite a broad set of tools to respond to interference activities. She will know—she in fact has a background in the Police—of investigative tools for police, including the use of existing warrantless search powers to enable police to act swiftly to avoid the loss of key evidence. We can all think about ways that that’s an important consideration, albeit weighed against usual civil liberty protections. There is also a basis for MFAT—the relevant ministry, external facing as it is—to use diplomatic tools to engage with other countries’ representatives about inappropriate conduct covered by the bill. There’s a bit of diplomatic as well as legal consideration there.

As for the question about the owing of allegiance and whether this would come into play: only if a person has otherwise done the acts constituting espionage or treason. Again, just to highlight, the various different elements would need to be satisfied such that there was the activity that could be characterised as espionage or treason, as well as then considering the status of the person who had been alleged to conduct such activities.

In terms of the suggestion that I think Vanushi Walters has said came from a submitter—and on which she was asking my view—regarding whether we should instead have a bar or a test of whether the conduct complained of is illegal in another jurisdiction as opposed to that of New Zealand: I’m not sure that there is any support in Government circles for that. I hesitate to state a personal view, but perhaps I can venture that that seems to me the wrong way around for New Zealand lawmakers to be considering the question of criminality—an interesting suggestion as it was from said submitter.

As for the contribution of Lawrence Xu-Nan of the Green Party: the good doctor, as always, makes a number of helpful points. In terms of new section 69A replicating penalty levels of section 69 amended: again, it’s because it covers the same type of conduct. I think I’m right in saying this is a point made previously by our friend Dr Webb and, just to point out, the bill doesn’t amend penalty levels for treason or incitement to mutiny, and adjusting penalties for crimes against New Zealand more generally is out of scope for this bill.

Returning to Dr Xu-Nan: I think he’s referred to section 77—perhaps existing? It must be existing. Why would party liability attract twice as great a degree of liability as opposed to performing the act itself? I might need to take some advice on that; I don’t have a coherent or glib or easy answer for that. Perhaps I’ve misunderstood something in the way that he’s asked the question, which is on me, if so. I’ll commit to coming back to him if I can find out more about that. I wasn’t sure which section he was referring to with the comment around strict liability, or asking if strict liability applied, so I wonder if he could, in his next contribution—assuming he chooses to make another and is allowed to make another, Madam Chair—sort of help me out with that one.

Finally, in terms of clause 10 and that new section 78AAA—like the battery—obviously there is a difference between intention, in the general sense, and recklessness, and he’s right to highlight that that is, effectively, a lower bar, albeit still within the ambit of mens rea more generally. I’m not sure that I can advise on the scenario of a member of this House going overseas and not taking the precautions suggested by a relevant security agency of New Zealand in terms of maybe taking a “burner” phone, just to use that vernacular. I would, of course, encourage all members to act prudently in such situations. I would say, instinctively, that it seems to me that that would be a stretch to indicate necessarily that the member would have conducted interference for or on behalf of a foreign power merely by not taking those precautions. We might characterise that as negligence—maybe in a general sense rather than the legal sense of the phrase—but, certainly, I would be surprised if, on many occasions, that would reach such a bar as this legislation is setting.

I’m just going to indicate, at this stage, that the Minister has just advised that he is going to seek some advice. I know this committee stage got off to a bit of an interesting start last week, but I feel like it’s had a select committee and it also has no Minister’s amendments. I’m going to give Teanau Tuiono a chance to speak to the amendments that he’s suggesting—and also, Lawrence Xu-Nan. I think there’s a clarification that the Minister has actually asked for.

Thank you, Madam Chair, and particularly to the—

Tim van de Molen: Point of order. Sorry, to interrupt the member, but, Madam Chair, I just wanted to bring to your attention that we have been seeking the call on this side of the Chamber, a few times, and haven’t yet had an opportunity. I guess there are a few points within that: there is a requirement (1) to try and ensure proportionality of calls within speakers, and also (2) to ensure that all sides can take part in the debate. Indeed, we’ve had three members that sit on the Justice Committee seeking the call, and there is preference, typically, given to members of the committee. I guess my concern is that—

CHAIRPERSON (Barbara Kuriger): I’m taking—

Tim van de Molen: —it feels like there’s, perhaps, some pre-emption about what the content of speeches might be on this side, which is not the role of the Chair.

CHAIRPERSON (Barbara Kuriger): And often there is. What I would say about that is that often, if there’s a member who genuinely wants a call, they would indicate, or the whip or someone would indicate, to the Chair that that would be the case. If that is the case, I would ask somebody—

TEANAU TUIONO: Speaking to the point of order. I’m happy to yield to the other side if they want to make a contribution and not a closure motion.

Thank you, Madam Chair, and thank you for the opportunity to take a call on this legislation. We traversed it in some detail through the select committee process and had a good opportunity to explore a number of these questions, Minister; particularly interested in this issue of seeking allegiance and who you have allegiance to.

I think for the average New Zealander out in the community watching this debate this morning, some of these ideas about who has allegiance to New Zealand and who doesn’t may get confusing. I would appreciate some clarification for the average New Zealander—if you live in the wonderful Whanganui electorate, for example, or up in your part of the world where you fit many electorates into the sort of space of the wonderful Whanganui electorate. That aside, for the average New Zealander who is a citizen of New Zealand who may have come from somewhere like South Africa, in the case of my wife—not yet a citizen—but would she owe allegiance? And, say, in my example where I’ve got a British passport but also a New Zealand passport, would I have that allegiance to New Zealand? I just want some clarity on those sorts of typical examples for the average New Zealander.

Thank you, Madam Chair, and thank you to the member opposite, as well. Just to support what that is around the clarity, we have heard earlier—

Tim van de Molen: Point of order. Apologies—I just note the clock has been reset but he yielded so it shouldn’t be. It should be carried on from where the time had been used by Mr Bates.

CHAIRPERSON (Barbara Kuriger): Look, I’m taking this as a new point.

Tim van de Molen: It’s not a new call if the member yields, Madam Chair. It’s quite clear in Speakers’ rulings that they can yield and that time is taken out of their call, but it’s not a new call.

CHAIRPERSON (Barbara Kuriger): I’m not sure where—

TEANAU TUIONO: Speaking to the point of order, I can live with less—with 10 seconds less.

CHAIRPERSON (Barbara Kuriger): About 5 seconds, I’m advised. So carry on, Mr Tuiono.

Tim van de Molen: No, no—this member’s time gets taken out of his call.

Hon Member: She just extended the call.

TEANAU TUIONO: But I took another call. Point of order.

Tim van de Molen: No, no, it’s the same call.

CHAIRPERSON (Barbara Kuriger): Responding to the point of order, we’ll set the clock at 4 minutes.

TEANAU TUIONO: Is this the new call?

CHAIRPERSON (Barbara Kuriger): I don’t know how long that call was but—

Tim van de Molen: It was one minute, 30 seconds.

TEANAU TUIONO: OK. One minute, 30 seconds—sweet as. Thank you, Madam Chair. Just to support what the member opposite was saying around clarity, we have heard the example I gave earlier around the folks in the Cook Islands and Niue—and, of course, I’m very interested in this because I’m from there—and about what that exactly means, and we did hear that that will be determined by the common law. I do note that there are officials behind them—just for the sake of my relatives in the Cook Islands, on a remote island, wondering if this might actually impact them—if they might have some information about what the current situation is with the common law. That would be really useful.

Also, to support the conversation that we’ve had around reckless conduct, I did note that when Dr Lawrence Xu-Nan mentioned people missing their laptops and iPhones and so on and so forth, I saw a number of people looking around the room wondering if they knew where their laptops and iPhones were, including myself as well.

I wonder if the Minister could turn his mind to my Amendment Paper 431, which was about making sure that we did define exactly what that advocacy part was, and I do note that they did say earlier that, actually, advocacy and the process was actually covered in the legislation, but there are so many different examples where it’s incredibly grey, where people could, because of involving themselves in reckless conduct, find themselves not liable for three months but actually seven years, because that’s the difference in the carry-through. So if I could get an answer around that, that would be good.

I’ve got another Amendment Paper—Amendment Paper 433—which is about that proportionality aspect. It amends clause 10 and states, “In clause 10, new section 78AAB, replace subsection (4) (page 9, lines 30 and 31) with: (4)A person who commits an offence against subsection (3) is liable on conviction to imprisonment for a term not exceeding the sum total of the following: (a) the maximum term of imprisonment for the applicable offence; and (b) an additional 3 months.”

There’s a big difference between three months and seven years, and so I wonder if the Minister could give us some clarity around the differences and perhaps look at it from the perspective of the proportionality principles in the Sentencing Act, which I’m sure the Minister is familiar with, and the New Zealand Bill of Rights Act. It seems to me that to go from three months to seven years is quite a stretch, particularly if somebody is engaging in reckless conduct, not necessarily sure that they’re doing what they’re doing, and so I’d like to get some comment on that. My Amendment Paper, in my view, would go some way to addressing that concern to make sure that the penalty is actually more proportional and fair, as opposed to automatically adding an extra seven years. So I’d like to get some clarification from the Minister on that.

I did hear earlier that the reason why this is following through is because treasonable offences have a lot more years added to them, but I wanted to get some clarification from the Minister on the rationale—

CHAIRPERSON (Barbara Kuriger): We are at the point of yield, so we’re just going to reset the clock. Does the member want to continue?

TEANAU TUIONO: Yes. Thank you. I wanted to know the rationale for the Minister and the officials behind him around pitching it to those treasonable offences, and then if people are engaging in treasonable behaviour, that makes sense, but if people are engaging in reckless conduct, then surely there should be a way to explain why proportionality is being used in this particular way—from three months to seven years—so I’d like an answer to that.

I also wanted to get the Minister to engage on the Amendment Paper around that proportionality, making sure it’s consistent as well, so I’d like to get some sort of clear answers there as well.

Thank you, Madam Chair. I’ve had the benefit of a lot of good discussion around all sides of the committee since I last rose to my feet. I’ll do my best to meet the challenge.

I should start by saying, having in my last contribution sought clarifications from Dr Xu-Nan about a point he’d made previously, that I’ve helpfully had some advice that’s indicated to me not only what he was asking but, actually, suggesting what I might provide by way of response. In terms of the question around strict liability, it’s not a strict liability offence. It would be the case that all the elements of the primary offence would need to be made out, and then, obviously, it would be the usual ruling in criminal law, as opposed to a strict liability regime—that is, there would need to be both the mental element, or the mens rea, as well as the actus reus, or the thing itself. I understand that this relates to the new section 78AAB offence of committing an imprisonable offence for or on behalf of a foreign power. So I hope that that answers the question, and it’s certainly my best effort.

In terms of the question posed by, again, the same member, party liability penalties are actually already those set by the Crimes Act, and there isn’t a change in that regard. If the member’s view is that those are somehow out of whack, then I suppose that that’s a matter which he could consider further in another context. But within the scope of this legislation, I don’t think that we can bring that forward more usefully than just to acknowledge that point.

As for recklessness, I suppose that the point about that—again, I’m indebted to those who are much more knowledgable in this space than me, which is many people, but it’s certainly those in our Chamber today. As to recklessness, it would require in the usual way that the person would recognise a real possibility—or, in other words, foresee the risk—that their actions would likely compromise a protected New Zealand interest, and then, having regard to that risk, that those actions would be unreasonable. I think, going back to that point about travelling with phones without all the necessary protections as recommended—it seems to me that that would be unlikely in any given case to result in a prosecution against said member.

As for the question posed by my colleague and friend Carl Bates—“Mr Everywhere Man”, but particularly of the Whanganui electorate—I think that he raised a really interesting and helpful point for people to understand in layperson’s terms, perhaps, the effect. Certainly, there are many of us, including many in the House—and, actually, other members have alluded to family or even personal situations of what might appear to be a split allegiance. For those of us who have other Commonwealth passports, and I myself have British and Australian ones in the—

Hon Rachel Brooking: Greedy.

Hon CHRIS PENK: —collection, as well as New Zealand, I hasten to add—getting greedy. But if there are any Canadian friends of influence who are watching, you’ll know what I’m going to ask you aboot, eh? But I know, of course, that that is the case for many people in New Zealand, whether they were born overseas or have some other connection such that they enjoy different connections to other nations. Of course, the question is complicated, or more complex, in the case of Realm nations or other Pacific nations with whom we have particular arrangements, but certainly the intent of the legislation is to clarify the common law and provide greater prosecution security, and, really, at its base it is to ensure that everyone in New Zealand is able to be prosecuted for espionage—for the relevant acts, obviously—as proven, unless that person has diplomatic or consular immunity, as defined elsewhere in legislation, and/or that person is a foreign national, or the child of one, of a State at war with New Zealand. So there are some pretty serious but niche ways in which this could apply to someone in this country who is acting for or on behalf of a foreign power.

Finally, in terms of Amendment Paper 433 in the name of Teanau Tuiono, the proposed penalty reduction we don’t think is appropriate. Our starting point, and the position of the Government, is that the current penalty is appropriate and consistent. I wouldn’t wish to suggest that having the foreign interference element merely topping up the other offence would be appropriately punishable by only an additional three months, as opposed to the seven years that’s put forward. But it’s the case, I think I’m right in saying, that, consistent with the New Zealand Bill of Rights Act—as the member quite rightly points out—we’ve specified that there be a proportionality in terms of that offence and the foreign interference element.

I move, That debate on this question now close.

The question is that Teanau Tuiono’s amendments to clause 10, new section 78AAA(4A)(a), set out on Amendment Paper 431 be agreed to.

The question is that Teanau Tuiono’s amendments to clause 10, new section 78AAA(5)(a)(ii), set out on Amendment Paper 432 be agreed to.

The question is that Teanau Tuiono’s amendments to clause 10, new section 78AAB(4), set out on Amendment Paper 433 be agreed to.