Crimes (Countering Foreign Interference) Amendment Bill

Members, we come now to Part 2. Part 2 is the debate on clause 16, “Minor and consequential amendments to other Acts”, and the Schedule. The question is that Part 2 stand part.

Point of order. Thank you, Madam Chair. I just want to seek your guidance because before, when we were debating Part 1—I didn’t want to interrupt when we were voting—you did mention that you were going to give me a call to finish—

CHAIRPERSON (Barbara Kuriger): And then the Minister said that he had understood the clarification that I was going to give you the call for, and then answered, so it was solved.

Dr LAWRENCE XU-NAN: OK. I thought the call you were going to give was because I indicated that—

CHAIRPERSON (Barbara Kuriger): No, I indicated there was a call for clarification.

Dr LAWRENCE XU-NAN: Madam Chair?

So this is on Part 2, right?

Thank you, Madam Chair. So, in terms of Part 2, what we’re seeing, particularly around focusing on the insertion of new section 78AAA and 7AAB into various other legislation—and I just want to check with the Minister, in terms of how that interacts with some of the legislation here, and I think, particularly, I want to focus on the Criminal Procedures Act but also the Human Rights Act. Can I check with the Minister that it is my understanding in this section that after section 78, it says, for example, under the Human Rights Act, insert 78AAA and 78AAB—however, would that, then, preclude section 78A and 78AA as a part of that? I just want to check with the Minister on why, then, those two particular clauses were precluded as part of the insertion into this area as well, noting that there’s a basis that both 78AAA and 78AAB are also relying on the fact that there is a 78A and 78AA within the legislation. So, in those kind of cases, what sorts of allowances are given for the other sections? I will start with that, because, I think, you know, if the Minister’s able to answer that short question, it will help us unpack a lot of the other additional amendments in this particular section.

While the Minister’s thinking, just continuing on in terms of the fact that when we are looking at this section, and I pulled up on the Human Rights Act, and I think what’s probably pertinent here is the Human Rights Act, the Ombudsmen Act, and the Privacy Act, as a start. For those sections that were mentioned in Human Rights Act, 130; Ombudsmen Act, 26; and Privacy Act, 90, is the intention, then, that those particular sections, then, whether there was an exemption of sorts in terms of how new section 78AAA and 78AAB are going to be interacting with those particular sections?

I think it’s vital that when we’re looking at this particular part, noting the number of additional bills that are affected by Part 2 of this legislation, we don’t inadvertently, I guess, challenge or put in—I guess “challenge” is a good term in terms of some our fundamental rights under the New Zealand Bill of Rights Act and also the Human Rights Act—the allowances for people when they are being, I guess, charged with any of the new additional crimes under 78AAA and 78AAB. I’m particularly thinking of how does this thing interact with the limitation that’s being placed on this bill and on individuals in Aotearoa New Zealand under section 5 of the New Zealand Bill of Rights Act. So I just want to check with the Minister in terms of that interaction.

Thank you, Madam Chair. Just to add to the checks we’re doing in terms of the other Acts referred to in the Schedule, my question is in relation to the Bail Act changes. The current heading of section 9 in the Bail Act references “treason or espionage”. It’s, essentially, a restriction on bail if there are charges on those two matters, and it replaces that with certain offences. The certain offences look to me to be the full set of offences under new section 78AAA of the Crimes (Countering Foreign Interference) Amendment Bill, which relate to “Improper conduct for or on behalf of foreign power to compromise protected New Zealand interest”. These are, of course, just cases where charges have been brought. There’s not necessarily a plea in there and no guilt found yet. There are other provisions in the Bail Act further down—sections 9A, 10, 11, and 12—which also impose other types of restrictions—and I would say lower restrictions—on the granting of bail. I wonder if the Minister had considered whether it would be useful to split the alleged offences that the person has been charged with so that, if someone is a third party and they were assisting, for example, they may fall into further restrictions on bail in certain cases. That would be a less restrictive application of the Bail Act restrictions, whereas if someone was charged with a more serious offence on the basis of the facts, then they could very validly sit within current section 9 of the Bail Act. I’m trying to find a way just to split how those offences would be treated.

Thank you, Madam Chair, and thank you for the engagement so far on this particular part, which impacts Part 2 and the Schedule, I’d like to draw the Minister’s attention to Amendment Paper 434, in my name. I’ve been thinking about a scenario where you could have a human rights advocate who shares information online as a part of their work, as a part of their mahi, and under the current bill, as I read it, if authorities suspect the work that they are doing is related to foreign interference, they could conduct a warrantless search of their home or devices, even if there’s no immediate threat. The concern there is overreach, and with the amendment in my name, Amendment Paper 434, authorities would need to apply for a warrant, giving a judge the authority to check whether the search is justified. This protects people from excessive or unnecessary intrusions or overreach by the authorities. It was a common theme that came to the select committee, that we were overreaching with this legislation and not necessarily focusing on the issues or finding a way to actually deal with the very real issues that that some of the submitters were bringing in as well.

I guess my question to the Minister is around the justifications for allowing warrantless searches for such broad offences under new sections 78AAA and 78BBB and without additional safeguards—if I’m missing something, could the Minister explain what potentially those safeguards would be? I think it would be important to have some safeguards in there. The right to freedom of expression, the right to be able to have your say, is an important right, and I know that has been expressed by all members of all corners of this Chamber as well. If we’re going to limit things, then I think it’s really important that the committee understands that and that the people, in general, understand that as well.

I also think about it in the context of journalists. They’ve got to be able to talk to as many people as possible. Could the Minister also clarify how the current proposal might impact journalists, activists, and advocacy groups but, in this particular circumstance, the impact on journalists? We know journalists play an important part in making sure that our democracy is robust. Yes, they ask us awkward questions, and we don’t like it as politicians, but that’s an important part that they play—an important part that, I think, the algorithm can’t do as well. The engagement of journalists and the work that they do—where they need to talk to a wide variety of different people—shouldn’t open them up to a warrantless search.

In my Amendment Paper, the suggestion is to delete the amendments to the Search and Surveillance Act 2012 in the Schedule—on page 15, lines 11 to 14 on the select committee report. In that way, from our perspective, this ensures that it allows for that extra level of scrutiny of having to go to a judge to make sure that the search that is going to happen is actually warranted. If the Minister could focus on the reasons why he thinks, or the Government thinks, that that extra layer is not warranted, it would be good to hear that.

Just to recap, my questions are around the safeguards available and the protections for journalists, in particular. They have a particular role, an important role. What are the safeguards that are in place to make sure that they can do their job and not be subject to a warrantless search? The example that I gave earlier around human rights advocacy is also incredibly important work, which does require them to talk to people, even people that we might not like, potentially—what’s in place for them?

In my view and in the view of the Greens, this amendment would go some way to addressing those concerns, giving that extra layer of having a judge make sure that there was a warrant there, as well, because, generally, when we look at the context of this bill as it is, there are issues around proportionality, which we have raised, and there are issues around overreach as well. There are issues that need to be dealt with and grappled with, but I think there needs to be clarity about how this will, specifically, actually do that. Thank you, Madam Chair.

Shanan Halbert: Point of order, Madam Chair. I seek leave to correct a vote.

Leave is sought for that purpose. Is there any objection? There appears to be none.

Shanan Halbert: Labour is in support of Part 1.

Thank you.

Thank you, Madam Chair, and thanks to members who have contributed in this relatively narrow second part—obviously, consequential amendments. I think some of the points that were made by Dr Lawrence Xu-Nan and, actually, also by Vanushi Walters, really just go to the fact of cross-referencing in the nature of consequential amendments—more particularly, in relation to the New Zealand Human Rights Act, though, as our friend mentioned.

So section 78AA amended by clause 11, (Wrongful communication … of classified communication), and section 78A amended by clause 12, (Wrongful communication … of official information). These are already referenced, so the new provisions are included to provide consistency. So it is, for example, that where espionage can be charged, the new offences can also be charged, which is what you would expect and hope for the two regimes to be coherent.

In terms of Ms Walters’ point around the Bail Act, I think I understand your point as being that, you know, there could be a separation or a split. But I think it’s in the nature of, you know, a bail regime. Of course, there would merely be a charging as opposed to a conviction for offence, which is why the question of bail would even come up in the first place. So on behalf of the Government, I don’t think we’ve got any appetite to rework any of the ways that those two pieces of legislation would connect with each other.

As to Teanau Tuiono’s point, I mean, I’m sympathetic at a high level. Of course, we want freedom of information and a free and democratic society. But, of course, as always, there are balance of rights considerations we can make, or competing rights we could even say, or, to characterise differently again, a balance of responsibilities. Clearly, the fourth estate plays an important role, as the member acknowledges, even if it’s not convenient to those of us whom they think they are holding to account.

But nevertheless, I think it’s entirely possible to separate good investigative journalism on the one hand, for example, and conducting certain activities as defined on behalf of or for a foreign power—whether one analyses the importance of freedom of information or expression from the New Zealand Bill of Rights Act, section 14, for example, or that narrative of holding those in power to account. Nevertheless, I think this legislation is reasonably tight around the purpose of what we’re trying to achieve, which is to react to the possibility of foreign interference as opposed to a chilling effect on speech more generally.

The member asked whether the search provisions are warranted. I think he meant in that general sense of justified, as opposed to warrants that are put forward in terms of search powers. On that note, then, I can provide some assurance either way, actually, that the bill introduces no new search powers; instead it simply relies on existing powers in the Search and Surveillance Act. Warrantless search powers for espionage and the offence of wrongful communication, retention, or copying of classified information are included. These are quite analogous with certain categories, at least for foreign interference activity.

I should point out, just again, more generally, existing powers would be exercised in a way that would have to reflect the case being of great urgency and requiring immediate action and there being reasonable grounds to believe that the evidence relating to the relevant offence is at the place to be searched. So it can’t be, as we always say, a fishing expedition.

Just to conclude that matter, courts also apply a warrant preference rule, which is to say, even though there may be the ability to conduct a warrantless search, if there was sufficient time for a warrant to be obtained, then it should, or the court may determine that it would need to be. Ultimately, of course, the consequence of all this is that if a warrantless search is conducted in a way that offends these types of rules, then the evidence might be inadmissible, which is the ultimate consequence for those wishing to find the evidence to be able to, you know, make a case of this nature.

Thank you, Madam Chair, I’ve got two very short, concise questions to finish this part of Part 2. The first question—thank you to the Minister for responding to my question—I want to check, particularly, is what the Minister was saying in terms of the Human Rights Act and the Ombudsmen Act. Again, noting that the section that we are discussing here is privileged proceedings and these two are now 78AAA and 78AAB, and are now exempted from such privilege, as indicated in those sections. Can I check with the Minister how this then also interacts with those two agencies? So we’re looking at the Human Rights Commissioner or Commission, and the Office of the Ombudsman when it comes to our obligation under the Optional Protocol Convention against Torture, and particularly as those two agencies are in charge of or are part of the national preventative mechanism. When it is going to be things that touch on their role as the national preventative mechanisms, would that then also mean that they have to break privilege by the inclusion of these two additional sections, under those two particular Acts?

So that’s my first question. The second question is also coming to the Search and Surveillance Act. Thank you to the Minister for that response but my question is: what we saw in terms of the power granted under the Search and Surveillance Act, as part of the Gangs Legislation Amendment Bill, and the subsequent amendment of that is that when a person’s being searched and if they found something that was incidental that wasn’t part of the original intention of that search, that material can still be used for them to be charged with additional offences. I want to get reassurance from the Minister that the similar thing then wouldn’t be happening in this case with the inclusion of 78AAA and 78AAB. Because, again, those are kinds of the things that potentially will affect or could have a chilling effect for ethnic communities, quite severely, if people are being targeted for additional things; but then when there is a search, either warranted or warrantless materials were found and how that would then interact with the new offences created under this bill.

I move, That debate on this question now close.

The question is that Teanau Tuiono’s amendment to the Schedule set out on Amendment Paper 434 be agreed to.